Clement v. Suntech Greenhouses Ltd., 2017 HRTO 1304

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Eva Clement

Applicant

-and-

Suntech Greenhouses Ltd. and Robert Mitchell

Respondents

INTERIM DECISION

Adjudicator: Sophie Martel

Date: October 4, 2017

Citation: 2017 HRTO 1304

Indexed as: Clement v. Suntech Greenhouses Ltd.

WRITTEN SUBMISSIONS

Eva Clement, Applicant

Chantal Tie, Counsel

Suntech Greenhouses and Robert Mitchell, Respondents

Marie-Michèle Pellerin-Auprix, Counsel

1This Application was filed on February 10, 2017. The applicant alleges the respondents engaged in sexual harassment and sexual solicitations or advances contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The last incident of alleged discrimination occurred on March 24, 2016 when the applicant quit her job.

2The respondents ask the Tribunal to dismiss the incidents that occurred prior to February 10, 2016 because of delay. The issue I must decide is whether the challenged events are part of a series of incidents the last of which occurred within one year of the filing of the Application and are therefore timely. For the reasons which follow I find that the challenged events are part of a series of incidents the last of which occurred within one year of the filing of the Application.

Decision

3Section 34 of the Code provides:

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.

4The applicant was hired by the corporate respondent in July 2014. She alleges that shortly afterwards, the personal respondent, the owner of the corporation, began making sexual comments and jokes and was inappropriately “touchy”. She alleges that this behaviour continued until March 24, 2016 when she quit her job. While many of the alleged events are undated, the Application alleges one specific event in the “spring of 2016” regarding a sexual comment and innuendo.

5The respondents submit that the incidents are undated, occurred more than one year before the Application was filed and describe some events that relate to the experiences of others in the workplace. The respondents further submit that the applicant failed to bring her Application in a timely manner. She waited nearly three years from the time that she first became aware of the alleged discrimination before filing her Application.

6Section 34 of the Code provides that an application must be filed within one year of the incident to which the application relates, or within one year of the last incident in a series of incidents. Subsection 34(2) allows an applicant to proceed with an application outside of the time limit if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to the respondent.

7The Tribunal has held that to constitute a “series of incidents” under s. 34(1)(b) of the Code, the allegations must have some connection or nexus such that they may reasonably be viewed as a pattern of conduct with a common theme, similar parties and/or circumstances. A gap of more than one year between incidents will usually interrupt a series of events. A series cannot be comprised of incidents relating to discrete and separate issues. See Association of Ontario Midwives v. Ontario (Health and Long-term Care), 2014 HRTO 1370 at para. 36, and Baisa v. Skills for Change, 2010 HRTO 1621 at paras. 16 and 22.

8In my view, all of the incidents of alleged harassment and discrimination form a “series of incidents” for the purposes of section 34(1) of the Code. The incidents, as alleged, involve a succession of incidents of the same character namely sexual comments, sexual solicitation, sexual touching and sexual innuendo by the personal respondent culminating in the applicant’s decision to quit her job on March 24, 2016. Even if the first incidents of alleged harassment and discrimination occurred shortly after the applicant was hired in July 2014, there were multiple subsequent incidents of the same character until March 24, 2016, which is within one year of the filing of the Application.

9Having found that the applicant has alleged a series of incidents, the last of which falls within the one year time period provided for in section 34(1), I am satisfied the Application was filed within the time required.

order

10The Request to dismiss is denied.