Charles Keeling v. General Motors of Canada Limited and Canadian Auto Workers Union, Local 222, 2009 HRTO 1509

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

DECISION

Adjudicator: Alan Whyte

Date: September 21, 2009

Citation: 2009 HRTO 1509

Indexed as: Keeling v. General Motors of Canada

WRITTEN SUBMISSIONS BY

Charles Keeling ) on his own behalf

General Motors of Canada Limited ) Greg Bullen, counsel

Canadian Auto Workers Union ) Keith Osborne, -Local 222 ) Representative

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") 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.

3In an Interim Decision, 2009 HRTO 1110, the Tribunal refused to dismiss the Application on the basis of section 45.1 of the Code and directed that submissions be filed by the parties with respect to the delay issue. Those submissions have now been received.

4This Decision determines the respondents' request for dismissal on the basis of delay in the filing of the Application.

Background

5The 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 and 2003, there were exchanges between the applicant and GM with respect to a possible "buyout" package.

6The applicant received documentation from GM on June 19, 2003 but did not fully understand that its effect was termination from his employment. He did not fully appreciate that he had been terminated until he unsuccessfully attempted to fill a prescription on October 24, 2003. Through the CAW, the applicant filed a grievance on November 19, 2003. There then ensued a period of approximately two years during which it is unclear whether the CAW was making efforts to resolve the applicant's grievance, but it seems that it was not keeping the applicant informed of its efforts. According to the applicant, his grievance was the subject of discussions at negotiations between GM and the CAW in the summer of 2005, but was not resolved.

7The applicant did not receive a copy of his grievance from the CAW until September 2005. In October 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. That proceeding culminated in a decision from the OLRB dated April 22, 2009 which dismissed the applicant's complaint.

8The OLRB decision, which was filed with the Tribunal by the applicant, indicates that the applicant's section 74 complaint was inactive from December 2005 until October 2008, when the applicant asked that the OLRB proceed with the matter. During this time, the applicant hired a lawyer in January 2006, who apparently did little or nothing to pursue the matter on behalf of the applicant, until September 2008 when the applicant retrieved his file from the lawyer and secured alternate legal representation. The applicant noted that, as a result of his complaint to the Law Society of Upper Canada, the lawyer was found to have not complied with the Rules of Professional Conduct, including the obligation to keep the client informed of the status of the legal proceedings. As stated above, the applicant's section 74 complaint was dismissed in April 2009. This Application was filed with the Tribunal on March 9, 2009.

Positions of the parties

Applicant

9In his submissions, the applicant alleged bad faith on the part of GM and the CAW such that, in his view, the delay in filing this Application is attributable to their conduct. Specifically, the applicant alleges that the CAW "sat on" the applicant's grievance for approximately two years, and given his understanding that a unionized employee must proceed first with grievance proceedings (as opposed to other proceedings involving human rights or OLRB claims), he submits that he was prejudiced by the CAW's conduct. With respect to GM, he alleges an ongoing act of discrimination since June/November 2003 as a result of GM's failure to pay to him the severance monies to which he says he is entitled. He points to GM's intransigence from 2003 to the present and suggests that it is GM which is responsible for any delay incurred.

10The applicant also submits that the OLRB "absolved" him of any responsibility for delay up to September 2008 as a result of the above mentioned conduct on the part of the CAW and GM.

11In sum, the applicant takes the position that the only period of time that is relevant for the purposes of the determination of the delay issue is the period from September 2008 forward, that being the point in time when he removed his file from his first lawyer and determined to proceed with the OLRB process. As the applicant filed this Application within one year from September 2008, he submits that the Application is not untimely.

GM

12GM submits that this case involves a greater than six year delay since the applicant was contractually separated. It points to the statement in the applicant's submissions to the effect that he knew that the OLRB and human rights Applications were different and addressed different issues; it submits that as the OLRB proceedings were not about human rights issues and since the applicant knew this, the OLRB proceedings cannot be used to excuse the delay in bringing this Application.

13With respect to the applicant's suggestion that his first lawyer was negligent, GM points out that any such negligence was already three years post separation. GM also points to the applicant's statement that a unionized employee is required to go through the grievance procedure before going to the OLRB, and it submits that there is no such requirement regarding a human rights Application, which can be launched at any time without regard for other proceedings.

14GM takes the position that the applicant is attempting to divert the responsibility for his delay onto the other parties, and that he has not satisfactorily explained the significant delay on his part in initiating this Application.

CAW

15The CAW points out that if, in the timeframe of the applicant's Application to the OLRB, the applicant felt that there was harassment and discrimination, there was nothing to preclude him from filing a human rights complaint with the Ontario Human Rights Commission ("the Commission"). It also points out that the union has an excellent process for dealing with harassment and discrimination that was not used by the applicant.

DECISION

16The relevant sections of the Code are 34 (1) and (2), which read 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.

17Accordingly, the first issue to be addressed is whether or not the delay in filing the Application was "incurred in good faith" by the applicant. If it is found that the delay was not incurred in good faith, then it is not necessary to determine the "substantial prejudice" issue.

18I find that the "date of the last incident" for the purposes of establishing the point in time when the applicant knew or ought to have known that he may have been discriminated against is October 24, 2003, which is when the applicant's termination by GM was brought to his notice as a result of his being denied the filling of a prescription under his benefit plan. This is in fact later than the June 19, 2003 date that the applicant himself identified as the date of the last event in his Application, however nothing turns on the difference between these two dates as they are both well outside the one year time limit for filing an Application. His explanation for why he was applying more than one year from the last event was "has been in the system with CAW grievance initially to September 2005 and OLRB since then".

19There are two time frames to examine in relation to the applicant's reasons for not proceeding with his human rights complaint before March 2009; the first is November 2003 (the date of the filing of his grievance with the CAW) to September 2005, and the second is October 2005 (the date of the filing of his section 74 complaint with the OLRB) to March 2009.

20With respect to the first timeframe, it should be noted that the applicant's grievance did not, on its face, raise any human rights issues. The grievance states "I claim I have been unjustly separated and request to be reinstated and compensated for all monies lost". Although this grievance could be interpreted broadly to include a claim under the Code, there is nothing in the parties' submissions, including the submissions by the applicant, which suggests that it was the applicant's intention to raise human rights issues by way of the grievance.

21It is clear that there were difficulties in the communication between the applicant and the CAW between November 2003 and September 2005, when the applicant finally lost patience with the union's handling of the grievance. However, other than the applicant's statement that he believed that one could not proceed with both a grievance and a human rights complaint at the same time, the applicant has not provided any satisfactory explanation for his delay in this timeframe. It is obvious that the applicant could have contacted the Commission (or legal counsel) at any time in order to receive advice as to the time limit for the filing of a human rights complaint (which was six months at the time), and to determine whether his understanding that both a grievance and human rights complaint could not proceed simultaneously was correct. However, he apparently did not take this step.

22In October 2005, the applicant commenced the OLRB proceedings against the CAW. In January 2006 he obtained legal counsel to represent him in those proceedings. However, once again, it appears that he failed to make any inquiries of his legal counsel as to whether or not he could proceed with both the OLRB proceeding and a human rights complaint at the Commission. The second timeframe is affected by the lawyer's apparent failure to communicate with the applicant, with which I have some sympathy, however, it was incumbent on the applicant to pursue the proceedings either on his own or with the assistance of a new lawyer more quickly than he did. I note the applicant took 32 months to fire the first lawyer and recover his file.

23In any event, it is clear that the applicant knew that his human rights issues were not going to be pursued or dealt with in any way in the OLRB proceedings. Again, other than his mistaken belief that one could not pursue both an OLRB complaint and a human rights claim simultaneously, there is no satisfactory explanation as to why such a claim was not pursued prior to March 2009.

24The Tribunal has found that ignorance of the law is no excuse in the context of delay in the initiation of a human rights application. In Lutz v. Toronto (City), 2009 HRTO 1137, the Tribunal held that a delay may be found not to have been incurred in good faith where a party simply says that they were not aware of their rights, and made no inquiries about options for pursuing the alleged wrong. Once again, the onus was on the applicant to make appropriate inquiries in order to determine whether his understanding was correct.

25With respect to the applicant's submission that he was "absolved" by the OLRB regarding his delay, my reading of the OLRB's decision does not support this submission, and in any event, the finding of another tribunal operating under another statute would not bind this Tribunal in determining this matter.

26For the above reasons, I find that the applicant has not satisfied the burden of demonstrating that the delay in filing this Application was "incurred in good faith" as required under s. 34(2) of the Code. Consequently, it is not necessary to determine whether the respondents have demonstrated substantial prejudice as a result of the delay.

27In the result, the Application is dismissed.