Human Rights Tribunal of Ontario
B E T W E E N:
Pat McLean
Applicant
-and-
CFP Services Inc., Arif Dharamshi and Walter Chrystoja
Respondents
DECISION
Adjudicator: Josée Bouchard
Indexed as: McLean v. CFP Services Inc.
APPEARANCES
Pat McLean, Applicant
Samantha Glass, Paralegal
CFP Services Inc., Arif Dharamshi and Walter Chrystoja, Respondents
Ross Dunsmore, Counsel
Introduction
1The applicant filed an Application on October 28, 2016 alleging discrimination with respect to employment because of sex and marital status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The respondents filed a Response on December 22, 2016 requesting the dismissal of the Application on the basis that the applicant was never in an employment relationship with the respondents.
3On January 30, 2017, the Tribunal issued a Notice of Intent to Dismiss (“NOID”) for delay directing the parties to file written submissions regarding this issue. The applicant and respondents filed written submissions in response to the NOID on March 14, 2017.
4The Tribunal held a Preliminary Hearing on July 5, 2017 to address whether this Application should be dismissed, in whole or in part, on the basis that:
a. it appears that some or all of the allegations may be untimely; and/or
b. there is no reasonable prospect that the Application or part of the Application will succeed because it does not fall within one of the social areas covered by the Code and as such is outside of the Tribunal’s jurisdiction.
5At the beginning of the hearing, the applicant made a request to amend her Application.
6This Decision addresses the request to amend the Application and the timeliness of the Application. In light of my conclusion on delay, the Decision does not address the issue of whether there is no reasonable prospect that the Application will succeed because it does not fall within one of the social areas covered by the Code.
Background
7The applicant, Dr. Pat McLean, and the two personal respondents, Dr. Arif Dharamshi and Dr. Walter Chrystoja, are practising physicians.
8During the material time, the applicant operated her medical practice in the premises leased by the respondent, CFP Services Inc. (“CFP”). The applicant became a signatory to a Co-Tenancy Agreement in 1998, along with CFP, the two personal respondents and at the time three other physicians. The stated purpose of the Co-Tenancy Agreement is to “be the association of the doctors’ independent medical practises at the premises under the umbrella of the clinic”.
9The Co-Tenancy Agreement sets out occupancy rights, liabilities, ownership of CFP’s shares, management of CFP and voting rights, expense sharing, patient care and minimum practice standards.
10The corporate respondent, CFP was the lead tenant under a lease dated January 17, 1997, with respect to the premises. CFP was incorporated to hold the lease for the premises and act as a services corporation for the co-tenants.
11The personal respondent, Dr. Chrystoja, was the president of CFP and its only shareholder.
12In her Application, the applicant makes allegations of the following nature:
a. She began experiencing anxiety and stress in 1998 due to the large sum of money she had to pay as buy-in to join the Co-Tenancy Agreement.
b. In 2003, at the request of Dr. Chrystoja, the vaccine refrigerator temperatures were not appropriately recorded which led to the physicians at the clinic having to re-administer vaccines to patients. The applicant states that she felt scared of the respondents following this incident. She was pregnant and on bed rest and the personal respondents still insisted that she administer the vaccines. The applicant states that the episode was very stressful and took over a year to resolve.
c. The applicant was on pregnancy leave from January to March 2005. During that period the personal respondents contacted her about money owed to the CFP. This made her stressed and she became increasingly depressed.
d. Upon her return to practice, the applicant became increasingly stressed and feared to make changes to her practice as she was afraid of arguments with CFP and the personal respondents.
e. In and around the spring 2008, she and Dr. Chrystoja disagreed on the location of computers and Dr. Chrystoja got upset, snapped at her and screamed at her. She maintains that she was increasingly scared of Dr. Chrystoja.
f. In or about 2010, she became close to Dr. Chrystoja’s spouse, who was also a physician at the clinic. Dr. Chrystoja warned her that his spouse only becomes close to people she wants to use. At around that time, on 3 to 5 occasions, she inexplicably found nails in her car tires. The nail incidents stopped when she diminished her interactions with Dr. Chrystoja’s spouse.
g. On or around 2010, on more than one occasion Dr. Dharamshi made disparaging comments to her.
h. On or around May 2014, CFP changed its billing structure to a family health organization (“FHO”). Dr. Chrystoja was chosen as the head. The applicant felt that she could not volunteer to head because the personal respondents would say she was not competent enough to manage this.
i. The applicant began seeking medical attention around 2005 due to the stress at work. She had further medical complications in 2014 and was advised in the fall of 2015 that her medical conditions were stress related.
j. The applicant felt that for many years she could not question the status quo because confronting the personal respondents would lead to arguments.
k. In 2014 and early 2015, the personal respondents became increasingly angry, belligerent and vulgar, often screaming at the applicant, calling her "obstructive and negative", threatening to call lawyers to sue her, excluding her from meetings, belittling her as a woman and telling her she could leave CFP. She believed their inappropriate behaviour was meant to make her feel uncomfortable at CFP.
l. On or around April 13, 2015, the applicant was advised by her physician that she should leave CFP as it caused her anxiety and made her depressed. The applicant could no longer deal with the ongoing destructive and demeaning environment. She handed in her resignation from CFP giving the respondents 90 days-notice.
m. After her resignation and before her departure from CFP in August 2015, the respondents became increasingly agitated and rude and took actions that impacted her practice and her well-being. In August 2015, the applicant contacted the College of Physicians and Surgeons (“CPSO”) and was advised that she should leave to avoid the hostile environment. The applicant left in August 2015 and opened her new practice in a different location that month.
13The Application also makes reference to Dr. Chrystoja’s refusal to call meetings in December 2015 because he was angry with the applicant for not having dealt with a matter, while she was still at CFP, involving his former spouse.
14On February 12, 2016, the respondents filed a Small Claims Court action (“the Small Claims Court matter”) against the applicant for payment of the final reconciliation of outstanding costs from the withdrawal of the Co-Tenancy Agreement.
Request to Amend the Application
15At the beginning of the Preliminary Hearing, and without notice, the applicant requested an order to amend the Application to add allegations of harassment and discrimination that occurred from December 2015 to the present. The applicant explained that even though she had left the CFP and opened her new practice in August 2015, she remained part of the FHO billing structure led by Dr. Chrystoja until March 1, 2017. She wishes to amend the Application to show that after her withdrawal from the Co-Tenancy Agreement and her departure from CFP, she still had some business with Dr. Chrystoja through the FHO but he was not receptive to communicating with her; he would not talk to her or respond to emails and he would not call meetings.
16The applicant also seeks to file with the Tribunal the CFP’s Articles of Incorporation. The applicant explained that she received the Articles of Incorporation two days before the Preliminary Hearing and she had no access to them before that time. The applicant argues that such document shows that the applicant and respondents were in an employment relationship as it indicates that the personal respondent, Dr. Chrystoja, was the sole shareholder of CFP.
17The applicant provided no explanation as to why the allegations were not made in the Application or in a timely request to amend the Application. In addition, the applicant could not provide any particulars of the alleged ongoing incidents but to say that they were ongoing. The applicant requested more time to file the amended Application and the Articles of Incorporation.
18The respondents oppose the request to amend and maintain that they would be prejudiced by such amendments. They argue that the request was made during the Preliminary Hearing, without any notice, and the applicant has not provided a valid explanation as to why the information she wishes to add or produce was not provided prior to the Preliminary Hearing. The respondents observe that CFP’s Articles of Incorporation are public documents that were readily available to the applicant. In addition, the information that the applicant wishes to provide through the Articles of Incorporation is included in the Response and Co-Tenancy Agreement that were filed with the Tribunal and delivered to the applicant.
19In determining requests to amend applications, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and the prejudice to the respondent. See, for example, Odell v. TTC, [2001] OHRBID No. 2, Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926.
20Having considered the factors set out above, I deny the applicant’s request to amend the Application. The Notice of Preliminary Hearing was issued on April 26, 2017 and the applicant had sufficient time to file a request to amend the Application in a timely fashion prior to the Preliminary Hearing. This would have provided an opportunity for the respondents to file a Response. Other than identifying CFP’s Articles of Incorporation as a document she seeks to file with the Tribunal, the applicant was not able to provide any particulars of the allegations she wishes to add to the Application and she could not explain why the information was not available in a timely fashion. The request to amend appeared to be simply an attempt to rewrite the Application more than two years after the alleged key incidents in this matter. In addition, CFP’s Articles of Incorporation are public documents that the applicant could have accessed in a timely fashion. Finally, I find that granting such an untimely request to amend the Application, without notice, would be prejudicial to the respondents.
Timeliness of Application
21Section 34 of the Code states in part:
(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.
22Section 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 events. Subsection 34(2) allows for a filing of 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 respondents. In order to satisfy the Tribunal that a delay was incurred in good faith, an applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner.
23The Application was filed on October 28, 2016. The applicant indicates in her Application that the date of the last event was August 24, 2016. The applicant admitted that the description of the alleged incidents in the Application makes no reference to an event occurring on August 24, 2016. During the Preliminary Hearing, the applicant explained that on August 24, 2016, she attended a settlement conference with the respondents in the Small Claims Court matter, and the event caused her a lot of stress. The applicant made it clear however that she believes the Small Claims Court matter is distinct and not related to the human rights proceeding. The applicant did not provide further particulars of the allegation that in December 2015 Dr. Chrystoja refused to call meetings because he was angry with the applicant.
24The applicant argues that she was in good faith in filing the Application outside the time limit. She maintains that she retained a lawyer to advise her but after at least ten months decided that the lawyer did not properly represent her. She states that the lawyer advised her that if she filed a human rights application, it may be deferred pending the outcome of the Small Claims Court matter. She also explains that the lawyer advised her to wait until the end of the Small Claims Court matter to file her Application. The applicant states that as a result she changed legal representation late in the process. She explains that she did not feel she could properly represent herself. The applicant also contends that she felt depressed as a result of the alleged incidents at CFP.
25The respondents argue that there is nothing in the applicant’s description of what happened in the Application that identifies an event occurring on August 24, 2016 and there is no event alleged to have occurred in 2016. The respondents maintain that between August 2015 and the filing of the Application, there is only one allegation: that Dr. Chrystoja refused to call meetings because he was angry with the applicant. The respondents argue that it is unclear what meetings were not called as the applicant had resigned from CFP on April 13, 2015 and left the premises altogether in August 2015. The respondents submit that in any event a failure to call meetings while the applicant is no longer at CFP does not form part of a series of events alleging discrimination with respect to employment. Nearly all the incidents relied upon occurred prior to April 2015 when the applicant resigned from CFP to start her own medical practice elsewhere.
26The respondents contend that the applicant had legal advice throughout the process and has not provided a sufficient explanation for the delay to show good faith.
27In DeFreitas v. Ontario Public Service Employees Union, 2010 HRTO 2049 at para. 11 (“DeFreitas”) the Tribunal has stated:
More recently, in Baisa v. Skills for Change, 2010 HRTO 1621, I did say that “in order to constitute a “series of incidents” within the meaning of s. 34(1) of the Code, there must at least be some connection or nexus between the incidents that are alleged to form the series, and a series cannot be comprised of incidents relating to discrete and separate issues”: see para. 22.
28Where it is alleged that the events underlying an Application form part of a “series of incidents”, the Tribunal has considered the nature of the events and whether they may reasonably be viewed as a pattern of conduct, or are comprised of incidents relating to discrete and separate issues without some connection or nexus: Farrell v. Barrie Police Services Board, 2011 HRTO 1442, Duggan v. Villa Care Centre Nursing Home, 2010 HRTO 1695, Baisa v. Skills for Change, 2010 HRTO 1621.
29The Application relates to incidents that allegedly occurred while the applicant was a co-tenant with the respondents. The applicant resigned from that arrangement on April 13, 2015 and physically left CFP in August 2015 because she could no longer practice in a hostile environment. I find that the last alleged incidents of discrimination occurred in August 2015.
30I understand that the parties to this Application continue to interact on various matters outside of this proceeding and that those interactions are difficult. However, this does not mean that all interactions between the parties form part of a series of incidents. There must be a connection or nexus between the incidents that are alleged to form the series. Other than a brief reference, without particulars, to the refusal of Dr. Chrystoja to communicate with her and call meetings in December 2015, a number of months after the applicant’s departure from CFP, all the incidents in the Application appear to be allegations of belligerent, vulgar and belittling behaviour that created a hostile practice environment at CFP. I find no nexus between the alleged behaviour that created a hostile practice environment and the December 2015 alleged refusal to call meetings.
31I also find that the settlement conference in the Small Claims Court matter is not part of the series of incidents that created a hostile practice environment for the applicant at CFP. The applicant acknowledged that the Small Claims Court matter is entirely distinct than the human rights proceeding. In addition, she made no reference to the settlement conference in the description of events that led to the filing of the Application. It is not surprising that the interactions between the parties in the Small Claims Court matter are adversarial and difficult. However, I find that there is no connection or nexus between those interactions and the creation of a hostile practice environment at CFP.
32I find that the incidents following August 2015 are not part of the series of incidents that are characterized as a hostile practice environment while the applicant was at CFP and in any event, without any particulars, there is no link between the December 2015 and a Code based ground.
33The issue I must therefore consider is whether the delay was incurred in good faith. The Tribunal has held that applicants have a “fairly high onus” in providing explanations for delay. Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241. In determining the issue of good faith, the Tribunal has considered factors such as the duration of the delay; whether Code-related reasons (such as a disability) directly impeded the applicant’s ability to file an application; the nature of the allegations; and whether the applicant was able to raise allegations in other venues during the period in question: Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110 and Doyle v. Canarm, 2009 HRTO 674. The fact that a person is pursuing other avenues or waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.
34The applicant has not established that the delay was incurred in good faith. The applicant admitted to having legal representation throughout the process. She said she first waited for the outcome of the Small Claims Court proceeding but then decided to change her legal representation. Waiting for other legal proceedings to conclude or changing legal representation late in the process does not constitute valid explanations for delay in filing the Application.
35The applicant also explained that she was depressed during her period at CFP and following her departure but did not provide medical documentation in support. The Tribunal has consistently ruled that it requires medical evidence that a medical condition was so debilitating that it prevented an applicant from pursuing his or her legal rights under the Code. See for example James v. York University and Human Rights Tribunal of Ontario, 2015 ONSC 2234 and Todd v. Rouge Valley Health System, 2012 HRTO 2173. The applicant continued to practice in a new office following her departure from CFP and there is no indication that she was unable to file the Application in a timely manner.
36The Tribunal has held that if it has not been shown that the delay was incurred in good faith it is not necessary for the Tribunal to make the further determination as to whether anyone has been substantially prejudiced by the delay: see Esanu v. Georgetown Non-Contact Hockey League, 2009 HRTO 579. Consequently, it is not necessary to determine whether the respondent has demonstrated substantial prejudice as a result of the delay.
37In the circumstances, I find that the Application is outside of the Tribunal’s jurisdiction because it is untimely under s. 34 of the Code. Consequently, the Tribunal need not address whether there is no reasonable prospect that the Application or part of the Application will succeed.
38The Application is dismissed.
Dated at Toronto, this 28th day of July, 2017.
“Signed by”
Josée Bouchard
Vice-chair