Pamela Simpson v. Kingston Dodge Chrysler (1980) Ltd., 2016 HRTO 590

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Pamela Simpson Applicant

-and-

Kingston Dodge Chrysler (1980) Ltd. Respondent

INTERIM DECISION

Adjudicator: Sheri Price Date: May 3, 2016 Citation: 2016 HRTO 590 Indexed as: Simpson v. Kingston Dodge Chrysler (1980) Ltd.

1This is an Application in which the applicant alleges that the respondent employer discriminated against and/or harassed her because of disability, age and sex with respect to employment, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In her Application, the applicant alleges that she was sexually harassed in the respondent’s workplace her during the course of her employment, that the workplace was a poisoned work environment, that the respondent discriminated against her because of her age and/or as a “mature female”, and that the respondent terminated her employment on July 22, 2014 for discriminatory reasons.

2The respondent denies that it infringed any of the applicant’s rights under the Code. The respondent alleges that it terminated the applicant’s employment effective July 22, 2014 on a without cause basis when the business was restructured and the applicant’s position was eliminated.

Request to dismiss for delay

3The respondent has filed a Request for an Order during Proceedings (“RFOP”) seeking to have part of the Application dismissed on the basis of delay, under s.34 of the Code.

4Section 34(1) of the Code states that a person may file an Application alleging that his or her rights under the Code have been infringed within one year of the incident, or within one year of the last incident in the series of incidents, to which the Application relates. A person may only apply to the Tribunal more than a year after the incident or the last incident to which the Application relates if the Tribunal is satisfied that the delay in filing the Application was incurred in good faith and that no one would be substantially prejudiced by the delay.(s.34(2))

5The applicant’s employment was terminated on July 22, 2014, and the Application was filed on July 15, 2015. Accordingly, the respondent acknowledges that the allegation regarding the termination of the applicant’s employment is timely. However, the respondent submits that the other allegations in the Application are not timely.

6Specifically, the respondent submits that all of the alleged incidents of sexual harassment in the Application occurred more than a year prior to the Application being filed (i.e. prior to July 14, 2014). Accordingly, the respondent submits that the allegations of sexual harassment are untimely and should be dismissed. The respondent submits that the applicant’s allegations of age-based discrimination are also untimely.

7The applicant did not respond to the respondent’s RFOP. Accordingly, this matter is to be determined based on the materials before the Tribunal.

8Having reviewed the pleadings and the respondent’s RFOP, I am not persuaded that any of the allegations in the Application may be dismissed at this stage on account of delay.

9In determining whether an Application is timely under s.34(1) of the Code, the question is not whether a discriminatory incident actually occurred within the one-year period preceding the filing of the Application, but whether there is an allegation that a discriminatory incident occurred during that time frame.

10In this case, the Application alleges on its face that the respondent discriminated against the applicant because of age and harassed and/or discriminated against her because of sex within the one-year period before the Application was filed.

11In particular, in her response to Question A15 on the Application form, the applicant pleads that her disabilities “in combination with other factors (age and other issues I was vocal about)” were factors in the respondent’s decision to terminate her employment and not to offer her another position. Insofar as the Application alleges that the decision to terminate the applicant’s employment was based in part on her age, the allegation that the respondent discriminated against the applicant because of her age cannot be dismissed on account of delay.

12As for the applicant’s allegations of sexual harassment, the respondent submits that the last alleged incident of sexual harassment occurred more than a year before the Application was filed (i.e. before July 14, 2014). However, there is nothing in the Application that would allow me to conclude that the alleged incidents of sexual harassment all occurred prior to July 14, 2014. In this regard, I note that the applicant alleges that she was “continually” sexually harassed by one of the respondent’s managers “during the course of [her] employment” and that that individual made unwanted comments of a sexual nature “almost daily”. The applicant alleges that this continued even after the applicant started to share an office with another manager in December 2013. The applicant alleges that that manager also made unwelcome comments of a sexual nature, which constituted further sexual harassment. The applicant alleges that she attempted to complain about the sexual harassment to the respondent’s general manager, but he “shut her down” and did not want to hear her complaints.

13In addition, the applicant alleges that other employees and/or managers of the respondent subjected her to repeated unwelcome references to another male employee as the applicant’s “boyfriend” and even set a table in the employee cafeteria with candles and a “reserved” sign for the applicant and the employee in question. The applicant alleges that she was embarrassed by this and started to eat her lunch at her desk after the incident. The applicant alleges that the owner of the respondent business was present in the cafeteria at the time of the incident, but took no steps to address the sexual harassment, which the applicant alleges persisted for months.

14As noted above, one of the allegations in the Application is that the applicant was subjected to a “poisoned work environment” as a result of the sexual harassment that she allegedly experienced in the workplace and the respondent’s alleged failure to rectify the situation. By definition, an allegation of poisoned work environment is an allegation that discrimination or harassment is so prevalent in the workplace that it has effectively become a term or condition of employment with the respondent: Ghosh v. Domglas Inc. (No. 2) (1992), 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216 (Ont. Bd. Inq.), at para. 76, as cited in Vanderputten v. Seydaco Packaging Corp., 2012 HRTO 1977, at para. 62 to 78.

15In the case at hand, the applicant was working for the respondent in what she alleges was a poisoned work environment within the one-year period prior to the Application being filed. In light of this, her allegations of sexual harassment and poisoned work environment are not untimely.

16I note that this is consistent with other cases in which the Tribunal has had to address the issue of delay in the context of an allegation of poisoned work environment: Sanderson v. Best Buy Canada Ltd., 2016 HRTO 468.

17For the above reasons, the respondent’s request that part of the Application be dismissed on account of delay is denied.

Mediation-adjudication

18At the upcoming hearing of this Application, the Tribunal will offer the parties an opportunity to participate in the Tribunal’s mediation/adjudication process.

19Pursuant to the Tribunal’s mediation/adjudication process, the Vice-chair assigned to adjudicate the case may, with the parties’ consent, step into the role of mediator to assist the parties in exploring whether the case can be settled on mutually agreeable terms. In the event that the case is not settled through mediation, the hearing proceeds before the adjudicator, who bases his or her decision solely on the evidence and arguments presented during the hearing and not on anything said during mediation. Mediation/adjudication is a voluntary process.

20A copy of the Tribunal’s mediation/adjudication agreement is available on the Tribunal’s website. The parties may also wish to review Rule 15A of the Tribunal’s Rules of Procedure, which deals with mediation/adjudication, and which is also available online. The Vice-chair will also further explain the mediation/adjudication process at the commencement of the hearing.