HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Charles Keeling
Applicant
-and-
General Motors of Canada Limited and Canadian Auto Workers Union-Local 222
Respondents
INTERIM DECISION
Adjudicator: Alan Whyte
Indexed as: Keeling v. General Motors of Canada
1In this Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”), the applicant alleges discrimination in employment on the grounds of disability and reprisal.
2General Motors of Canada Limited (“GM”) and the Canadian Auto Workers (“the CAW”) have filed Responses seeking the dismissal of the Application on the grounds of section 45.1 of the Code and on the basis of delay in the filing of the Application. The CAW has indicated in its Response that its proper name is “Canadian Auto Workers Union-Local 222” and the style of cause is amended accordingly.
3This Interim Decision denies the request for dismissal on the basis of section 45.1 and provides directions for the determination of the delay issue.
Background
4The applicant commenced employment with GM in 1988. He suffered a workplace injury in 1990, and worked intermittently from 1990 to 1995. On January 25, 1995, the applicant went on an extended sick leave of absence and has not worked for GM since. Between 1998 to 2003, there were exchanges between the applicant and GM with respect to a possible “buyout” package. The applicant filed a grievance in November 1993. There then ensued a period of approximately 2 years during which it appears the CAW was making efforts to resolve the applicant's grievance, but not keeping the applicant informed of its efforts. In 2005, the applicant filed a “duty of fair representation” complaint at the Ontario Labour Relations Board (“OLRB”) under section 74 of the Labour Relations Act,1995, S.O. 1995, c.1, Sched.A, as amended (LRA). That proceeding culminated in a Decision from the OLRB dated April 22, 2009 which dismissed the applicant's complaint.
5There is no reference in the OLRB Decision to any issues of discrimination under the Code. The CAW has confirmed in its Response that the applicant did not raise any human rights discrimination issues at the OLRB.
6It is unclear what the status of the applicant’s grievance is, although that need not be determined for the purposes of the issues dealt with in this Interim Decision.
Section 45.1
7Section 45.1 of the Code reads as follows:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
8In Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, the Tribunal discussed the proper interpretation of section 45.1 as follows at para.24:
In Campbell v. Toronto District School Board, 2008 HRTO 62, the Tribunal discussed some principles that apply to the interpretation of s. 45.1. They include:
Section 45.1 gives expression to a legislative intent to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere;
The discretion given to the Tribunal in s. 45.1 is at least as broad as the doctrines of issue estoppel and abuse of process;
In determining whether another proceeding has appropriately dealt with the substance of the application, the Tribunal should not be overly technical;
The Tribunal does not act as an appellate court from the decisions of other tribunals, and the Tribunal need not be satisfied that it would have reached the same conclusion as that reached in the other forum.
Some of the factors the Tribunal found relevant to the exercise of its discretion to apply s. 45.1 in that case, which dealt with a decision by another tribunal as opposed to a settlement of its proceedings, were the purpose of the statutory scheme governing the other proceeding, whether the same question was decided, whether human rights principles were applied, and the safeguards available to the parties in the other administrative procedure.
9Most significant for the purposes of this case are the considerations of the purpose of the statutory scheme governing the other proceeding, whether the same question was decided and whether human rights principles were applied.
10The focus of section 74 of the LRA is whether or not a union has been discriminatory, arbitrary or has acted in bad faith in the representation of one of its members. In considering that issue, the OLRB has the discretion to consider human rights issues-it may or may not do so depending on the facts of the case. As stated above, such issues were not considered by the OLRB in its April 2009 Decision.
11Accordingly, that OLRB did not consider the same question as is raised in this Application (whether or not discrimination and reprisal were suffered by the applicant) nor were human rights principles applied by the OLRB in its decision-making.
12For these reasons, the Tribunal declines to dismiss this Application under section 45.1 of the Code.
Delay
13Sections 34(1) and (2) of the Code provide as follows:
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.
14Although the applicant’s Reply contains some submissions that could be interpreted as relevant to the issue of good faith on his part in filing this Application approximately 6 years after the alleged discrimination, the Tribunal will provide a further opportunity to the applicant to address the “good faith” issue which arises under section 34(2) of the Code. In addition, the Tribunal requires submissions from the respondents with respect to any “substantial prejudice” that they allege they have suffered as a result of the applicant's delay in filing this Application.
15The Tribunal therefore orders:
(a) the applicant to deliver to the respondents and file with the Tribunal submissions regarding the issue of why his delay in filing this Application was incurred in good faith, within 14 days of the date of this Interim Decision;
(b) the respondents to deliver to the applicant and file with the Tribunal submissions in response to the applicant’s submissions and also with respect to the “substantial prejudice” issue which arises under section 34(2) of the Code, within 28 days of the date of this Interim Decision;
(c) the applicant to deliver to the respondents and file with the Tribunal submissions in reply to the respondents’ submissions, within 35 days of the date of this Interim Decision.
16I am not seized.
Dated at Toronto, this 22nd day of July, 2009.
Alan Whyte
Vice-chair