Andrea Rankine v. Peel District School Board, 2016 HRTO 790

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrea Rankine

Applicant

-and-

Peel District School Board

Respondent

DECISION

Adjudicator: Dawn J. Kershaw

Date: June 9, 2016

Citation: 2016 HRTO 790

Indexed as: Rankine v. Peel District School Board

APPEARANCES

Andrea Rankine, Applicant

Simone D. Frankson, Paralegal

Peel District School Board, Respondent

Melanie McNaught, Counsel

Introduction

1The applicant filed this Application on June 8, 2015, and alleged discrimination with respect to employment because of race, colour, marital status, family status and record of offences contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Decision explains why the Application is dismissed.

2The applicant worked at the relevant times as a casual teaching assistant with the respondent. The applicant worked for the same high school between September 8 and November 18, 2013, and resigned on November 20, 2013. She then worked one day at a different school in January 2014. She was approved for pregnancy and parental leave consecutively from September 2014 to September 2015, although she chose to return to work in May 2015.

3When the applicant chose to return to work in May 2015, she worked for one or two days and then was advised by Ms. Hagues, an employee relations officer in human resources with the respondent, that she was under investigation. The applicant alleges she was taken out of the respondent’s system on May 21, 2015, meaning she would not be called for jobs.

4The applicant alleged the following acts of discrimination occurred while she was employed with the respondent:

a. In September, 2013, a teacher told the applicant it was not the right time and place for a particular student to be in the contact room talking and trying to build an alliance;

b. Sometime while employed at the high school between September and November, 2013, an unnamed staff member asked the applicant if her children had the same father;

c. Sometime between September and November, 2013, an unnamed staff member told the applicant she needed to re-think her position to see whether she is a good fit for it;

d. Sometime in 2013, the applicant told Ms. Hagues about the three incidents listed in a. through c., and Ms. Hagues told the applicant to always form an alliance with the teachers;

e. Sometime in 2013, Ms. Hagues told the applicant there was no point in investigating the applicant’s complaints because she would only be at the high school for a short period of time;

f. In approximately February 2015, the applicant did not receive the annual e-mail reminding her that she had to get her vulnerable sector check, which the applicant alleges was reprisal;

g. On May 21, 2015, the applicant was taken out of the job assignment system and advised she was under investigation by the respondent;

h. On June 1, 2015, the applicant was told in a bullying tone that she had to pick a date for an investigation meeting; and,

i. At an unnamed time, an unnamed person told the applicant she would never get a permanent position at the respondent.

5The applicant also alleged new incidents during the hearing, including that before beginning her employment at the high school in September 2013, she contacted the teacher with whom she would be working and did not receive a response.

6The applicant also alleged during the hearing that when she did not hear from the teacher, she then reached out to the guidance counsellor who also did not respond. When she eventually spoke to the guidance counsellor, he allegedly told her she should perhaps rethink her position to see if she is a good fit for it. This latter allegation appears to simply name the formerly unnamed person set out in subparagraph 3(c), above.

background

7The Tribunal, by Case Assessment Direction, dated September 4, 2015, advised that a summary and preliminary hearing would take place to determine if some or all of the allegations in the Application should be dismissed because they are untimely or have no reasonable prospect of success.

8Both parties attended the teleconference hearing and made submissions.

9The applicant advised she was not pursuing any allegations of discrimination on the basis of record of offences.

Timeliness

10Subsections 34(1) and (2) of the Code enable individuals to file applications to the Tribunal and set out the timeframes for doing so:

34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

11When considering whether the allegations constitute a series of incidents within the meaning of section 34(1)(b), the Tribunal generally considers the following factors:

• Whether there is an ongoing series of incidents or whether there is a single act of alleged discrimination with continuing effects. Garrie v. Janus Joan Inc., 2012 HRTO 1955 (“Garrie”);
• Whether the incidents involve fresh steps taken by the parties, with each step giving rise to a separate alleged breach of the Code. Visic v. Ontario Human Rights Commission, 2008 CanLII 20993 (ON SCDC), [2008] O.J. No. 1768, as cited in Garrie at para. 40;
• Whether the alleged discriminatory incidents are part of a pattern or series of incidents of a similar nature or character. Garrie; and
• Whether any gap of a year or more interrupts the series of incidents. Savage v. Toronto Transit Commission, 2010 HRTO 1360 at para. 9; Chintaman v. Toronto District School Board, 2009 HRTO 1225; and Killeen v. Soncin Construction, 2013 HRTO 350.

Parties’ Submissions – Timeliness

12The applicant alleges that the incidents set out in paragraph 4 are a series, pursuant to section 34(1)(b) of the Code. She submitted the 2013 allegations are connected to the 2015 allegations because the 2013 allegations were never resolved. When she wanted to return to work after being off from September 2014 until May 2015 on pregnancy and parental leave, no one from the respondent reached out to her.

13In addition, the applicant alleges she made an internal human rights complaint in 2012 and that despite reaching a confidential settlement, people talk. In her view, the fact that in February 2015 the respondent did not send her the vulnerable sector check form to complete was a reprisal by Ms. Hagues because without the check a person cannot work for the respondent. The applicant asserted Ms. Hagues reprised against her in February 2015 because the applicant did not comply with Ms. Hagues’ suggestion made sometime in 2013 to form an alliance with the teachers instead of the students.

14The applicant also alleges that it was Ms. Hagues who spoke to her in a bullying tone on June 1, 2015 about picking a date for the investigation meeting.

15The applicant asserts all of these incidents are connected because they involve Ms. Hagues, who the applicant alleges already had discriminated against her on the basis of her race in 2013.

16Finally, the applicant also alleges that in addition to all of these discriminatory events, an unnamed person told her she would never get a permanent position at the respondent. In her view this is an indication that the respondent is rallying to get rid of her. Overall, the applicant alleges because she is black, her race has been a factor from the outset.

17With respect to whether there was a good faith explanation for the delay in filing the Application if there is not a series of incidents, the applicant submits she was pregnant, on medication and bed rest, and was not of sound mind and body to commence her Application on a timely basis. She had to focus on staying mentally sound for her unborn child and her other two children who were under 10 at the time.

18The respondent submitted that not only are the incidents not connected and so do not constitute a series, they also are separated by a gap of more than one year, which would interrupt any series of incidents in any event. The respondent submits there is a 17-month gap between the 2013 allegations and the 2015 allegations. Because of the length of the delay and because the delay is not properly explained, the earlier events should not constitute part of a series.

19The respondent also submitted the events are not connected because the 2013 allegations related to harassment or a poisoned work environment and the later allegations are reprisal allegations. They are therefore not of the same character, are distinct complaints, and do not constitute part of a series.

20In addition, the respondent submitted that the vulnerable sector check is automatically generated and sent out by the respondent’s computer system, not by Ms. Hagues.

21With respect to the good faith reason for the delay in commencing the Application, the respondent asserts that even if the applicant was pregnant and on medication and bed rest for a period of time, she worked a day in January 2014 and could have filed her Application then. The respondent also submitted that the applicant filed no medical documentation to show she was unable to file her Application in time.

analysis and decision reGARDING timeliness

22The Application was filed on June 8, 2015. Therefore, the only timely allegations are:

a. the respondent did not send the applicant the vulnerable sector check in February, 2015;

b. the applicant was taken out of the job assignment system on May 21, 2015 and advised she was under investigation by the respondent;

c. Ms. Hagues told the applicant in a bullying tone on June 1, 2015 that she had to pick a date for an investigation meeting.

23Unless the applicant can establish that there is a series of incidents or can show that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay, then the allegations prior to June 8, 2014 must be dismissed as untimely. To show good faith there must be more than simply an absence of bad faith. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

24With respect to whether there is a series of incidents, despite my direct questions about the link between the 2013 and 2015 incidents, the applicant provided no more detail respecting the link between what she alleges were the unresolved 2013 incidents and the respondent’s failure to send her the vulnerable sector check in February, 2015, which she asserts is a reprisal, other than that, in her view, they involve the same person. In fact the only 2013 incident to which the applicant pointed was that Ms. Hagues told the applicant to form an alliance with teachers not students, resulting in the reprisals in 2015.

25The applicant alleges that the timely 2015 reprisal allegations resulted from the 2013 event or events, which is a very similar situation to that in Polihronakos v. Mississauga (City), 2010 HRTO 1433. In Polihronakos, a series of events that lead to the allegations of reprisal were untimely, but the actual allegation of reprisal was timely. The Tribunal held at paragraph 17 that the untimely events were distinct allegations, separate from that of the reprisal incidents, and therefore the applicant could not establish a series of incidents. Consequently, here I find that the reprisal allegations are distinct from the 2013 allegations of discrimination and therefore there is not a series of incidents. As such, the 2013 allegations must be dismissed unless the applicant can establish a good faith reason for the delay.

26The applicant alleged she could not file her Application in a timely way because she was pregnant, taking medications, on bed rest, not of sound mind and body and was taking care of her two other children under the age of 10. However, the 2013 allegations mainly occurred sometime between September and November, 2013, meaning she would have had to file her Application, at the very latest, sometime between September and November, 2014. The applicant not only worked on January 7, 2014, but also was not off on pregnancy and parental leave until September, 2014.

27The applicant did have some time off for stress, but according to the applicant in her Reply, this was in November and December, 2013. Although her Reply also stated that the Board has letters about her pregnancy and how sick she was and how she could not work between January and September, 2014, she did not provide these at the preliminary/summary hearing. Given that she in fact worked at least one day in January, 2014, and in the absence of any medical documentation to substantiate the applicant’s claim that she was medically unable to file her Application in a timely way, I find that the applicant has not established a good faith explanation for the delay in filing the Application, and the 2013 allegations are dismissed.

28Since the new allegations the applicant raised at the hearing occurred in 2013, as set out in paragraphs 5 and 6, above, there is no need to address these as they are out of time.

no reasonable prospect of success

29The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding and usually before a Response is filed, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

30The Tribunal cannot address allegations of unfairness that are unrelated to the Code. The Tribunal’s jurisdiction is limited to claims of discrimination that are linked to the protections set out in the Code.

31The test that is applied at the summary hearing stage is outlined in Dabic v. Windsor Police Service, 2010 HRTO 1994 (“Dabic”), as follows:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground. [Emphasis added]

32The remaining allegations are as follows:

a. In February 2015, the applicant did not receive the annual e-mail reminding her that she had to get her vulnerable sector check, which she alleges was a reprisal;

b. On May 21, 2015 the applicant was taken out of the job assignment system and advised she was under investigation by the respondent; and,

c. On June 1, 2015 the applicant was told in a bullying tone that she had to pick a date for an investigation meeting.

Parties’ Submissions – No Reasonable Prospect of Success

33With respect to the remaining allegations, I asked the applicant to explain how they were connected to the Code. In her view, the Human Resources manager bullied her because of her race and as a reprisal for her prior internal human rights complaints. She pointed to no other evidence.

34The respondent submitted there is no connection between the alleged adverse treatment and the grounds the applicant claimed. The respondent submitted that the applicant’s allegations amount to claims of unfairness with no clear connection to any other Code grounds, and the applicant’s subjective belief that incidents are connected to her race is not enough.

35Specifically with respect to the applicant’s claim of reprisal, the respondent submitted that the test for a reprisal is a fairly difficult test to meet and the applicant has not met it. Even if the applicant is able to establish that an action was taken against her, in the respondent’s view she will not be able to prove that the alleged action was related to her having claimed or attempted to enforce a Code right or that the respondent intended the action as retaliation for the applicant’s claim or attempt to enforce her Code-based rights.

36The respondent submitted there is no evidence that the respondent intended to retaliate against the applicant for an internal complaint she made in January 2012, given she continued to work for the respondent. In addition, the applicant pointed to no evidence that the people she allege treated her badly knew anything about her 2012 complaint or its resolution, and therefore could not have intentionally reprised against her. The respondent stated in its Response that Ms. Hagues did not commence employment with the respondent until October 2012.

37The applicant replied that in her view the resolution of her 2012 complaint was not kept confidential, and therefore she felt her name intentionally was left off the vulnerable sector check e-mail in February 2015.

analysis and decision reGARDING no reasonable prospect of success

38First, with respect to the applicant not receiving the computer-generated e-mail with her vulnerable sector check, the applicant could point to no evidence that would support this being a reprisal for her 2012 internal complaint. She continued to be employed by the respondent until 2015, and she pointed to no evidence that any person involved in the January 2012 complaint had anything to do with sending out the vulnerable sector check in February 2015. This allegation has no reasonable prospect of success because as in Dabic, the applicant is not able to show a link between an event and the grounds upon which she makes the claim.

39With respect to the applicant’s allegation that on May 21, 2015, she was taken out of the job assignment system and advised she was under investigation by the respondent, the applicant again pointed to no evidence this was intended as a reprisal for her January 2012 internal complaint. The respondent stated in its Response the applicant was put under investigation for falsifying an employment letter, an assertion the applicant did not dispute. The applicant provided no evidence that her removal from the job assignment system had any connection to her race, colour, marital status, family status or record of offences, or that it was intended as a reprisal. Therefore this allegation has no reasonable prospect of success.

40The applicant alleges that Ms. Hagues spoke to her in a bullying tone when she told her to pick a date for an investigation meeting. The applicant asserted she responded that she did not like Ms. Hagues’ tone and that Ms. Hagues should contact the union. The applicant pointed to no evidence that this incident was connected in any way to the applicant’s race, colour, marital status, family status or record of offences, or that it was somehow a reprisal. The applicant pointed to no evidence that this comment could be seen as harassing the applicant on the basis of her race, colour, marital status, family status or record of offences. As such, this incident also has no reasonable prospect of success.

41The applicant’s final allegation is that an unnamed person told the applicant at an unnamed time that she would never get a permanent position with the respondent. The applicant again pointed to no evidence that this was connected in any way to the applicant’s race, colour, marital status, family status or record of offences, or that it was somehow a reprisal, and therefore this allegation has no reasonable prospect of success.

order

42The Application is dismissed.