Magee v. Toronto District School Board, 2017 HRTO 1013

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donna Magee

Applicant

-and-

Toronto District School Board

Respondent

DECISION

Adjudicator: Leslie Reaume

Date: August 8, 2017

Citation: 2017 HRTO 1013

Indexed as: Magee v. Toronto District School Board

APPEARANCES

Donna Magee, Applicant

Self-represented

Toronto District School Board, Respondent

Gail Geronimo, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of disability, gender expression, age and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2This Decision deals with the question whether the Tribunal should extend the limitation period with respect to this Application. Section 34 establishes a one-year limitation period for filing applications. The Tribunal has the discretion to extend that time in certain circumstances:

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.

Decision

3I have determined that this is not an appropriate case for exercising the discretion conferred on the Tribunal to extend the time for filing an Application beyond the one-year limitation period.

Background

4The applicant worked with the respondent, the Toronto District School Board (“TDSB”), as a teacher for 38 years until her retirement in 2003, following which, she took on various contractual projects for the TDSB and other organizations. The applicant self-identifies as a person living with Post-Traumatic Stress Disorder (“PTSD”), which she attributes to an alleged history of workplace bullying and harassment throughout her career. The applicant is seeking compensation for what she describes as the effects of psychological battering in the workplace which began in 1989-1990 and continued throughout her career. The applicant also alleges that she continued to experience discrimination and reprisal after her retirement up to and including the date of the filing of the Application on July 13, 2012. The applicant states that the effects of a poisoned work environment continue to this day and have had a serious, adverse effect on every aspect of her life. She argues that the limitation period for filing applications under the Code presents a barrier to her and to other people living with similar mental health disabilities.

5In an effort to fully understand the complexities of the applicant’s circumstances and the connection between her disability and the time limits under the Code, the Tribunal provided the applicant with several opportunities for oral evidence, submissions and supplementary documentary material separated by significant periods of time. This case has been challenging to determine, in part because of the important issues raised by the applicant, but also because of the historical nature of the claim. In addition, the applicant was initially represented by counsel but then completed her testimony and submissions on her own. Throughout the hearing process the applicant was provided with whatever accommodations she requested. The applicant explained that she relies on purposeful coping strategies to deal with anxiety and avoidance such as additional time and “chunking” (approaching the tasks associated with the Application in chunks of time) in her attempts to deal with the effects of having to re-live her experiences through the Tribunal process. I appreciate how much effort it took for the applicant to advance this Application. I also appreciate the assistance of counsel for the respondent, Ms. Geronimo, who treated the applicant with respect and assisted in establishing a fair process which was accessible to the applicant. The Tribunal regrets that there was a delay of several months in releasing this decision because of an administrative error.

6During final submissions on the timeliness issue, the applicant indicated that she felt the accommodations had worked well to support her ability to appear before the Tribunal and as a result, I do not find it necessary to set those accommodations out in detail in this decision. In addition, I have chosen to set out only those details which are directly relevant to my decision, in order to protect the applicant’s privacy and the privacy of other individuals who are named in the applicant’s narrative. The applicant provided as fulsome a record as I could possibly ask for about the nature of her allegations, how she connected the incidents arising during and after her career with the respondent to the prohibited grounds under the Code, the evidence she intended to call to support her allegations, and why it was important for the Tribunal to permit her Application to proceed despite the delay. The applicant’s testimony was of significant assistance to me in identifying the issues I am required to address in this Decision.

7The Application was filed July 13, 2012, raising allegations of discrimination and reprisal going back more than 20 years. The hearing process commenced with a Notice of Intent to Dismiss (“NOID”) issued by the Tribunal for reasons of timeliness and section 53(8) of the Code, which bars an Application that is the same or substantially the same as the subject matter of a complaint that was filed with the Ontario Human Rights Commission under the old Part IV of the Code.

8The applicant filed submissions in response to the NOID. She acknowledged that she filed a complaint to the Ontario Human Rights Commission alleging discrimination with respect to employment in July 2000. She withdrew the complaint because of illness. With respect to timeliness, the applicant argued that her allegations constituted a series of incidents coming within the Code’s one-year time limitation. She also argued that her medical condition constitutes a good faith explanation for the delay in filing the Application.

9The Tribunal directed that it would hear evidence in relation to the timeliness issue to give the applicant an opportunity to explain how her disability affected her ability to file the Application. I note that the applicant’s psychiatrist was called by the applicant to testify on her behalf. During his examination in chief it was determined that he was not treating the applicant at the material time during which she was attempting to prepare her Application for the Tribunal. In addition, it was agreed by counsel representing the applicant at the time, that to proceed would likely do damage to the therapeutic relationship, and as a result, there was no cross-examination of the doctor. The Case Assessment Direction (“CAD”) dated May 17, 2013 addresses this issue. I have not relied on the doctor’s evidence in coming to my conclusions about timeliness. I have instead relied on the applicant’s very comprehensive understanding of her symptoms and the relationship between those symptoms and the filing of her Application.

10At the time of filing the applicant indicated that her Application fell within the one-year limitation period because she received reimbursement from the respondent in August 2011 for expenses to attend a conference. However, this not an allegation of discrimination and therefore cannot be relied upon as falling within the one-year time limit. The applicant also speculated that discrimination and reprisal were ongoing since she had received no special project work from the respondent since filing a complaint with the TDSB human rights office in 2008. There was no evidence that the applicant could point to which would support this speculation. There is no dispute that the applicant declined a position in 2008 over a salary dispute and was immersed in contract work with a different employer from July 2009 to September 2011.

11When the NOID was issued, the applicant provided submissions adjusting the last incident of discrimination to June 22, 2010, which also falls outside of the one-year limitation period. While the applicant argues that the effects of discrimination and reprisal persist, there are no incidents on which an allegation of discrimination could be based which fall within the one-year time limit. As a result, the question before me is whether I am satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

The Applicant’s Allegations and Steps Taken in Response

12In her testimony, the applicant made reference to a factual background beginning in 1965 when she was first hired as a teacher by the respondent. The applicant worked for three years and then resigned to take time off to be at home with her child. She was rehired in September 1969 and retired in 2003. Following her retirement the applicant continued to work on various special projects, some of which were for the respondent.

Early 1990’s and Pre-Retirement Period

13The applicant’s perspective is that she was the victim of gender-based harassment in the form of vexatious comments and conduct by co-workers, beginning in approximately 1989-1990, which developed into a long-term poisoned work environment. I refer to that period throughout this Decision as the early 1990’s. The applicant argued that the effects of that environment persisted throughout the rest of her career, limiting her career advancement and damaging other aspects of her life. She argues that symptoms associated with PTSD persist to this day in part because her complaints were never properly addressed.

14Prior to her retirement in 2003, the applicant took a number of steps in an attempt to resolve her poisoned work environment allegations. There was an investigation into her complaints in 1990 and a dispute resolution process in 1996 during which she received an apology. The applicant continued to raise concerns with direct supervisors and human resources representatives, among others, about her perception that her work environment remained unsafe because of direct or indirect contact with the network of people involved in the early 1990’s allegations. She inquired with the Ministry of Labour about her options. She filed a formal complaint against an individual in 1999 and participated in what turned out to be an unsatisfactory investigation into that complaint. The applicant filed a complaint to the Ontario Human Rights Commission in 2000 which she later withdrew. She also filed a grievance on May 23, 2000. The applicant also agreed to participate in an independent medical assessment. Discussions and negotiations lead to the offer of an alternate placement and a draft Memorandum of Agreement in December 2000 which the applicant declined. By September 2001 the applicant had started a new placement. She was still anticipating moving forward to arbitration, however, she alleges that her union was non-responsive to her communications. The applicant then retired in June 2003.

2003 to 2008

15The applicant was invited back to fill in for a teacher on maternity leave from November 2003 to the end of February 2004. After that she took on a number of special projects and worked as an occasional teacher for the respondent. She became the Project Manager on behalf of TDSB for a Ministry of Education funded curriculum project. The period between June 2003 and September 2007 appears to have been uneventful. The applicant states that in the fall of 2007 she heard comments and assumed that rumours were being spread about her that she felt were linked to the early 1990’s. The applicant confronted two individuals who denied making remarks about her or hearing anything about her that was negative.

2008 Allegations

16There are two separate incidents which occurred in 2008 and are alleged to be discriminatory. The first involved an offer of employment to replace a teacher on maternity leave. The second involved allegations of gender-based comments made while the applicant was working as a part-time consultant on the TDSB Aboriginal Education Team.

Maternity Leave Replacement

17The applicant was approached in March 2008 by a teacher who suggested that the applicant replace her during her upcoming maternity leave. The applicant had a lengthy discussion with the teacher including “some of the issues related to my employment with the Board and how they had impacted on the work environment.” The applicant stated that she also discussed the terms of employment with the teacher. The applicant alleges that when further discussions took place with the Principal, the terms and conditions of employment were not as represented by the teacher, particularly the salary, which was lower than expected. The applicant argues that this is an example of age discrimination because she was ultimately offered a rate of pay for “returning retirees” which was less than the rate paid to the teacher. The applicant believed that the Principal’s actions were connected to the incidents she experienced in the pre-retirement period.

Aboriginal Education Team

18The second series of allegations occurring in 2008 involved the applicant’s work as a member of the Aboriginal Education Team (“AET”). In January 2008, a woman who worked as a Principal for the TDSB offered the applicant a part-time position as a consultant supporting the AET. I will refer to this woman throughout this Decision as the head of the AET. The team met several times in the first part of 2008. The applicant alleges that during meetings of the team in July, August and September of that year, the head of the AET glared at her and made comments during a meeting “muttering” the words “hooker” or “prostitute”, “telling the truth” and something about the applicant “clearing her name.” In her testimony the applicant was unable to describe the full context and other words used by the head of the AET. She recalled only fragments of statements rather than whole statements. The applicant stated that she attempted to speak to the head of the AET about the comments who is alleged to have avoided the applicant.

One Separate Incident in June 2008

19In an entirely separate incident, in June 2008 the applicant went to a meeting as a representative of the TDSB. A woman walked past her and is alleged to have made a derogatory comment about her appearance also referring to “hookers.” The applicant thought the woman looked like a former staff member at one of the schools she had taught at but she was not sure. The applicant also connects this incident to the poisoned work environment allegations she raised throughout her career.

20In August 2008, the applicant retained a lawyer, received independent legal advice and took action to redress her most recent experiences as well as the allegations going back to the early 1990’s.

2009 and 2010 Steps Taken

21On the advice of her counsel, the applicant wrote to the Premier of Ontario in January 2009, who referred her to the Minister of Education. The applicant’s counsel also suggested that she reach out to a member of the TDSB executive. The applicant initiated a dialogue with the Director of the TDSB, whom she met at an event in January 2009. The applicant provided the Director with a submission about her experiences. The Director referred the applicant to TDSB counsel and the Executive Officer of Employee Services. The applicant also contacted the President of the Elementary Teachers’ Federation, who declined to become involved. The office of the Minister of Education also declined to intervene while the applicant and her counsel were meeting with the TDSB.

22A meeting took place on April 29, 2009, attended by the applicant, her counsel, TDSB counsel and the Executive Officer of Employee Services. The applicant laid out her entire career history. She asked for a full investigation into the incidents of discrimination and harassment she had been alleging since 1989-90. The applicant was advised that the respondent might deal with the more recent allegations, including the salary differential for the position offered to her in 2008, but not the events commencing in 1989. With respect to the offer in 2008 to cover a teacher’s maternity leave and the dispute which arose over the terms and conditions of employment, the applicant received a letter from the TDSB in May 2009 apologizing for the fact that the teacher had no authority to offer her the position or make any commitment to the terms of employment.

23The applicant was not satisfied with this response since, from her perspective, the current issues she was experiencing had their origins in the events beginning in the early 1990’s. The applicant stated that the Executive Officer of Employee Services suggested that she file a complaint under the TDSB Workplace Harassment Policy with the TDSB human rights office. The applicant states that her counsel did not agree that this was an appropriate referral. Nevertheless, the applicant filed a complaint on July 2, 2009. The applicant states that the complaint was never dealt with and that the TDSB human rights office wrongly concluded that her complaint was out of time.

24The applicant followed up with a letter to TDSB counsel in January 2010 and received a response in February, 2010. The applicant states that the last letter from the TDSB, which the applicant interpreted as a message that she should simply move on with her life, was patronizing.

25The applicant was experiencing stress during this period and sought counselling support. She found that her counselling sessions also elicited debilitating stress responses which prevented her from taking further steps to redress her experiences. By early 2009 the applicant had entered into a contract with a publisher for a textbook writing project. The applicant found that she could not deal with both her contractual commitments and the psychological trauma she had experienced from having to recount the story of her past to various individuals, including officials from the TDSB. From July 2009 to September 2011, she fully immersed herself in the textbook writing project and sought counselling and support.

2011 Allegations

26In February, 2011, the applicant was invited to an event sponsored by the Ministry of Education. She alleges during a break she approached the head of the AET, who was also in attendance, and found the woman uncomfortable in her presence. The applicant then described another woman taking her forcefully by the arm who said, emphatically: “not here, not now.” The applicant interpreted this as a message that others were aware that there were unresolved issues between herself and the head of the AET. In March 2011, the applicant was invited by the head of the AET to attend a Ministry of Education Symposium. In April 2011, she attended a wedding where the head of the AET was present. Finally, on June 22, 2011 (the last incident alleged to be discriminatory), the applicant was invited, again by the head of the AET, as a guest at an art exhibit and reception for Aboriginal Education Week. The applicant alleges that at all of these events the head of the AET was present but purposely avoided and marginalized her. The applicant described this conduct as discriminatory – a form of female “shunning” which she experienced as a result of her gender. The applicant stated that a similar incident had occurred in November 2009.

Age Discrimination Allegations

27There are two allegations of age discrimination for which the applicant provided specific details. The first is the incident involving the offer to replace a teacher on maternity leave in 2008 and the allegation that the applicant was to be paid less than the teacher for the same work because of her status as a returning retiree. The other allegation of age discrimination is set out in the Application as follows:

From 1990 onwards staff would ask when I was retiring. A parent on an interview committee for a VP position at Duke of Connaught told me that the committee was told that I was soon to retire. (about 1994). I did not formally retire until 2003. In every school there was a list of school staff and beside each person’s name was listed the year of employment with the Board. I cannot even count how many time staff referred to this. There was virtually NO confidentiality around this whatsoever. I was even asked by (removed), Principal of West Prep after I moved there. I was first hired by the (respondent) in 1965. After 3 years of teaching I resigned and withdrew my pension. After a year at home with a new child I was rehired in September 1969. One counts years to retirement in “pensionable” years. I also felt I was being pushed to retire, that the (respondent) saw this as a “solution” rather than having to meet their obligations to provide a safe workplace.

28In February 2012, the applicant attended a session where she received free legal advice. She states that following this session she became aware that the Tribunal was an option she could pursue and set about preparing her Application, which she filed approximately five months later.

Analysis and Conclusions

29In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 (“Miller”) at paras. 24-25, the Tribunal made the following general comments about untimely applications:

In my view, where an applicant seeks to establish that a delay in filing an application was “incurred” in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.

In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2).

30I have found that the applicant’s explanation for the delay in filing this Application does not meet the good faith standard as described in the decision in Miller. I have no difficulty accepting that the applicant has experienced periods during which the symptoms of her disability presented her with challenges in many aspects of her life. I also accept that the symptoms are particularly acute when the applicant takes steps to have her allegations addressed and that there were periods following the pursuit of various avenues of recourse when she was required to retreat and recover from those efforts. This does not address the question why, during those periods when she was capable of initiating other actions, the applicant did not pursue an application with the Ontario Human Rights Commission or the Tribunal.

31In addition, I disagree that the limitation period under the Code is inherently prejudicial to the applicant as a person living with the symptoms of PTSD. Section 34 provides the Tribunal with ample discretion to address situations where the delay in filing an Application is attributable to a person’s disability. The Tribunal engages in an individual assessment of each person’s explanation for the delay in order to avoid the application of stereotypes to people with disabilities. Where the applicant is able to demonstrate that the delay is caused by a disability that would, in most cases, constitute good faith. Assuming that the Tribunal is satisfied that no substantial prejudice will result to any person affected by the delay, the Application will proceed before the Tribunal. The question here is whether the applicant’s explanation about the connection between her disabilities and the filing of her Application is sufficient to establish good faith.

32I have four primary reasons for dismissing this Application, which are described in greater detail below. First, the applicant obtained legal advice in February 2012 and filed her Application within what she perceived to be the one-year limitation period, demonstrating her capacity to meet that deadline despite the significant symptoms she was experiencing during that period. Second, there are significant gaps in time for which there are no allegations of discrimination and no connection between the applicant’s disability and her failure to file an application. Third, the post-retirement allegations, with the exception of the age discrimination in 2008, are so vague that they cannot be described as allegations of discriminatory conduct or linked to the pre-retirement allegations for the purpose of finding that the applicant’s allegations constitute one long series of incidents. Fourth, even if the post-retirement allegations were cogent and complete, the applicant retained a lawyer in 2008 and took significant steps to obtain a remedy for the entire history of her allegations against the respondent. I recognize that after more than a year of unsatisfactory responses from the respondent, the applicant felt the need to retreat into other work. However, the applicant’s explanation for not filing an application when she received legal advice in 2008 is not based on her disability, but on assumptions she made about her lawyer’s advice. I am not satisfied that this explanation establishes that the delay in filing from 2008 to 2012 was incurred in good faith.

The Applicant’s Initial Perception of the Limitation Period

33The Application was filed on July 13, 2012. The applicant sought independent legal advice in February, 2012, was advised of the one-year time limit under the Code, and began to prepare her Application. From the applicant’s perspective the effects of her allegations of poisoned work environment were ongoing. She also indicated that her Application was timely because her last interaction with the TDSB had taken place in August, 2011, when she received reimbursement for conference expenses. I accept that during this period the applicant’s disability caused her to develop certain coping strategies such as chunking and extra time. However, the applicant successfully filed her Application within what she perceived to be the earliest deadline which was likely to be imposed on her (one year from August 2011). She also filed a significant number of documents beyond the application form setting out the entire history of her career with the respondent.

34The Tribunal then notified the applicant that there was a timeliness issue associated with her Application, following which the applicant adjusted the last incident of discrimination to June 22, 2011. This date was the next date on the timeline which involved contact with a person associated with the respondent. The applicant’s disability is not relevant to determining whether the delay between June 22, 2012 and July 13, 2012 was incurred in good faith. The reason for not filing before June 22, 2012 is that the applicant did not initially perceive that to be her deadline.

Pre-Retirement Steps and Unexplained Gaps in Time

35The incidents which are alleged to be part of a poisoned work environment arose prior to the applicant’s retirement. The applicant took steps to redress those allegations through a number of processes including a complaint to the Ontario Human Rights Commission and a grievance in 2000. The complaint to the Ontario Human Rights Commission was withdrawn. The grievance was not pursued beyond the applicant attempting to get in touch with her union after September 2001. The applicant’s last correspondence to the union was sent in March, 2002. There is a period of six years from September 2001 to September 2007 during which there are no allegations of discriminatory conduct. There is a period of six and a half years from the applicant’s last message to the union in March 2002 to August 2008 when the applicant obtained independent legal advice and renewed her efforts to resolve both the new and historical allegations of discrimination. While the applicant stated that she withdrew the complaint to the Ontario Human Rights Commission because of illness, the applicant did not explain how that illness or her disability continued to prevent her from pursuing a complaint with the Ontario Human Rights Commission or the Tribunal during the seven-year period prior to August, 2008.

The Post-Retirement Allegations are Vague

36The alleged comments in 2008 by the head of the AET are fragments of conversations without context. The one other incident in 2008 where the applicant alleges that she passed a woman in the hallway at a TDSB event who allegedly also said the work “hooker” is insufficiently particularized to enable the respondent to address the allegation in any way. At one event in 2009 and a few events in 2011, the applicant’s perception is that she was marginalized and shunned by the head of the AET. There is no allegation that the head of the AET did anything herself which could be interpreted as an act of marginalization other than not actively seeking out the applicant at these events. It was the head of the AET who invited the applicant to at least two of the events, one in March 2011 and one in June 2011.

37Apart from the events leading to the allegation of age discrimination in 2008, the post-retirement allegations of discrimination are not clear or cogent enough to be described as potentially discriminatory incidents or linked to the pre-retirement allegations as an ongoing series of incidents. Despite ample opportunity to describe these events in writing and in testimony, they remain fragments of statements without context, perceptions about the conduct of the head of the AET at public events, and speculations about what people might be doing or saying behind the applicant’s back. The applicant described these experiences in various ways throughout her written narrative and testimony. This is one example:

“Colleagues making allegations either behind my back or making “barbed” comments that implied there were allegations/malicious rumours.” “I believed that someone was and continues to circulate even more virulent allegations, the reasons for which I was/am unclear but whenever I challenge any of these bizarre catcalls/remarks/innuendoes people back down again. I hit a wall of denial/silence. I have asked several colleagues if they were aware of any negative allegations about me. Everyone I have asked has denied having heard anything negative. Even though those I asked denied having heard anything, on several occasions these same individuals would remark loudly in my presence “How could you not know?” but refuse to elaborate if asked to do so. Clearly there were/are some really serious and malicious allegations being circulated that were/are having a negative and damaging impact on my employability but no one would describe anything specific enough to deal.”

Steps Taken in 2008

38Even if the post-retirement allegations could be described as allegations of discriminatory conduct, I would nevertheless find that the applicant has not established that the delay in filing this Application was incurred in good faith.

39In 2008, the applicant sought legal advice and took a number of steps over the course of more than a year to resolve her outstanding allegations. There was no evidence presented to me which would explain how the applicant was able to take certain steps, including obtaining legal advice, escalating her complaints to the Premier’s office, approaching the Director of the TDSB, composing a complete historical narrative for both the Director and the TDSB human rights office, and meeting with representatives of the TDSB, but not inform herself about filing an application to the Tribunal.

40Despite the applicant’s ability to clearly articulate her allegations as gender-based discrimination, and the fact that she had previously filed a complaint with the Ontario Human Rights Commission in relation to many of same allegations, the applicant did not inquire with her lawyer or the Tribunal about filing an application during this period. The applicant’s lawyer allegedly advised her that the recommendation that she file with the TDSB human rights office was not appropriate. From this the applicant states that she inferred, without inquiring further, that a complaint to this Tribunal was not open to her. This is not sufficient to demonstrate that the applicant acted with due diligence to inform herself of her rights.

41The applicant did not argue that her disability prevented her from pursuing certain avenues of recourse as opposed to others. She did not argue that she considered filing a human rights complaint after the point at which she withdrew her 2000 Ontario Human Rights Commission Complaint but was prevented from doing so because of her disability. There is no evidence that the applicant even contemplated filing another human rights complaint prior to receiving legal advice in February 2012. Without evidence that she diligently pursued her right to file an application throughout the various periods when she believed she was experiencing discrimination, and was impeded from doing so by her disability, the applicant has not satisfied me that her disability was the source of the delay in failing to file an application prior to July 2012.

42For all of those reasons I find that the applicant has not demonstrated that the delay in filing this Application was incurred in good faith. Accordingly, the Application is dismissed.