Ontario Human Rights Tribunal Digest - April 1-30, 2011

Each week, Wise Law Blog reviews important decisions from the Ontario Human Rights Tribunal.

SUBSTANTIVE RULINGS

Kerry Pinkney v. Datex Billing Services

In this case, the applicant alleged discrimination on the basis of sex in employment, contrary to the Ontario Human Rights Code. The applicant also claimed that she had been subjected to sexual harassment, sexual solicitation and reprisal. Specifically, the applicant alleged that she was terminated because she refused to have sex with the immediate supervisor of the respondent employer and that he, throughout the course of her employment with the respondent employer, continually badgered her to have sex with him.

The applicant identified the following incidents of sexual harassment:

1. The supervisor would regularly approach her while she was in the office, making unwelcome sexual advances towards her;
2. On one specific occasion, he threw himself at her and groped her;
3. He continued such misconduct even after the applicant emailed him asking that he discontinue such behaviour.

The respondent employer, in its evidence, claimed that the applicant had been terminated for cause. It pointed to the applicant's use of the company phone for personal business, among other things. According to the respondent, the applicant had had a close personal and social relationship with the supervisor and his wife, and that none of the conduct towards her had been unwelcome. In fact, the employer alleged that the applicant had been a willing participant and had often initiated the flirting with her supervisor, who denied that he had received an email from the applicant at any time indicating that his conduct had been unwelcome and asking for it to stop.

As is often the case in cases of sexual harassment, there were no witnesses to the alleged incidents of sexual harassment. Nonetheless, the Tribunal concluded that no sexual harassment or breach of the Code had occurred in the case, noting the following in support of its position:

1. The applicant had continued to socialize with the supervisor, including attending at their hot tub parties and going into a hot tub with him, even though according to her, he was continuing to make unwelcome sexual advances towards her;
2. If the applicant was trying to fend off repeated sexual advances from her supervisor, why had she voluntarily given him a massage at work when they were alone together in the office?;
3. The applicant had willingly sent her supervisor provocative pictures with titles that were somewhat suggestive;
4. If the applicant was being continually sexually propositioned, why had she not confided in the supervisor's wife, a woman with whom she was very close; and
5. The apparent email sent to the supervisor, objecting to his alleged sexual harassment, was riddled with irregularities, which could not easily be explained away.

With respect to the reasons for termination and the applicant's reprisal claim in that regard, the Tribunal accepted the respondent's position that the applicant had been dismissed for insubordination and for making personal phone calls. The fact that the supervisor might have overreacted, in taking the decision to fire the applicant, did not amount to "discrimination" as defined by Code.

PROCEDURAL RULINGS

Smith v. Meineke Car Care Centre and Michael Colacci

In this case, the applicant alleged discrimination under the Code. The mediation stage had been reached in the matter, and a Notice of Mediation had been sent to both the applicant and the respondent parties; neither had been returned as undeliverable. On the scheduled date of mediation, the applicant failed to attend and did not communicate with the Tribunal to explain its failure in this regard.

The Tribunal wrote to the applicant asking that he advise within ten days of his intentions with respect to the Application. Having received no response within the requisite time period, the applicant was deemed to have abandoned the Application and the Application was dismissed.

Jerry Smith v. Prodomax Automation Inc.

In this case, the applicant alleged discrimination in employment due to age contrary to the Code. The hearing stage had been reached, with a start time of 1:30 p.m for a summary hearing by way of conference call. In accordance with its usual practice, the Tribunal waited until 1:50 p.m. before proceeding with the hearing. At as that time, the applicant, who had been given notice of the summary hearing by conference call, was still not present for the call.

Rule 3.13 of the Tribunal's Rules of Procedure states that the Tribunal may proceed with the hearing, if a party has been notified, in the party's absence and to take any action that it deems appropriate.

In dismissing the applicant's case as abandoned for non-attendance, the Tribunal explained the justification behind this specific procedural rule:

The applicant did not attend at the hearing although notified of the hearing. The respondent incurred the costs of attending at the hearing. The Tribunal also set aside the time and resources for the hearing, which are precious given the caseload of the Tribunal and the expense required to facilitate these hearings.

Abdul v. Inside Out Toronto

In this case, the applicant alleged discrimination in the area of services, goods and facilities on the basis of race and place of origin. Specifically, the applicant believed she had been discriminated in her communications with the executive director of the respondent employer when she tried to adduce information and make inquiries about the mentorship workshops offered by it to members of the public in 2009. She says that despite her numerous inquiries, she was never informed of the dates, times, and location of the workshops. The executed director's stated lack of knowledge, the applicant says was a ruse for the organization's and director's deep-seeded racism.

The discrete procedural issue before the Tribunal, was whether the claim was time-barred for reason that the last incident of discrimination in the applicant's Application occurred more than one year before the application was filed, in 2009.

Section 34 of the Code provides as follows:

(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

(c) 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

The applicant, in her verbal submissions before the Tribunal, argued that the last incident of discrimination actually occurred in 2011, when the applicant had communicated with the Director for the sole purpose of restating her concerns about the discrimination she believed he and his organization had subjected her to.

In finding that the one-year limitation period had been violated, the Tribunal stated:

The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay. . . The mandatory one-year limitation period is consistent with the Code's objective that human rights claims should be dealt with fairly and expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they seek to pursue a human rights claim.

I reject the applicant's contention that the alleged discrimination she experienced in 2009 continued until, or reoccurred in, 2011 simply because she attempted to recommunicate her concerns at that time. To allow an applicant to revive an out of time claim by simply restating old concerns would under the purpose of section 34 of the Code.

- Robert Tanha , Toronto

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