Desaulniers v. Canadian Auto Workers, 2009 HRTO 1583

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Liana Desaulniers

Applicant

-and-

Canadian Auto Workers

Respondent

DECISION

Adjudicator: Eric Whist

Date: September 30, 2009

Citation: 2009 HRTO 1583

Indexed as: Desauliniers v. Canadian Auto Workers

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on May 27, 2009. The applicant alleges that the respondent discriminated against her in respect to membership in a vocational association on the grounds of disability and that the respondent engaged in reprisals contrary to the Code. The purpose of this Decision is to address whether the applicant’s Application should be dismissed at this preliminary stage because it was filed more than one year after the alleged last incident of discrimination.

2The Application alleges that the applicant attempted to file a grievance on November 22, 2005 principally in regards to a denial of benefits and that the applicant’s union, the Canadian Auto Workers (CAW), refused to file the grievance. The Application further alleges that CAW staff made disparaging comments about the applicant. The Application indicates that the applicant filed a complaint with the Ontario Labour Relations Board (OLRB) under section 74 of the Labour Relations Act, 1995, S.O. 1995, c.1, Sched. A, as amended, on the grounds that the CAW had failed in its duty to provide her with fair representation. This complaint was dismissed by the OLRB on December 17, 2007. It appears the applicant also filed a claim in Small Claims Court but that this claim was dismissed on April 24, 2009 for lack of jurisdiction. It must be noted that the information the applicant provided in her Application is sketchy and not particularly clear.

3On July 21, 2009, the Tribunal sent the applicant a Notice of Intent to Dismiss. In that Notice, the Tribunal advised the applicant that it appeared that she might not be able to apply to the Tribunal because of the delay in filing her Application. The Tribunal also directed the applicant to provide submissions to explain why she should be able to apply to the Tribunal in light of the apparent delay in filing her Application. The Notice also informed the applicant that if she did not make submissions explaining why she believes her Application should be accepted by the Tribunal, then the Tribunal would decide whether to dismiss or proceed with the Application based only on the information in the Application.

4It is now more than four weeks since the applicant’s submissions were due. The applicant has not filed any submissions to the Tribunal as directed. Accordingly, the Tribunal will decide whether to dismiss or proceed with the Application based on the information provided in the Application.

5Section 34 of the Code provides that a person may file an Application alleging that his or her rights under the Code have been infringed within one year of the incident (or last incident) of alleged discrimination. It also provides that persons may apply to the Tribunal more than one year after the incident(s) in certain circumstances. Section 34 states:

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.

6I find that the date of the last incident of alleged discrimination identified by the applicant to be November 2005 when the respondent reportedly failed to act on her grievance. There are no references to events after this date. Clearly this is beyond the one-year period allowed for filing an Application.

7The issue I must next determine is whether the delay in filing the Application was incurred in good faith. The 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 prejudiced by the delay: see Esanu v. Georgetown Non-Contact Hockey League, 2009 HRTO 579.

8The applicant has not provided any explanation for the almost four year delay in seeking to enforce her rights under the Code regarding events culminating in November 2005. I have considered the possibility that the applicant had a good faith belief that her claim before the OLRB regarding fair representation was a means of pursuing her human rights and that somehow she should be allowed to continue this pursuit by means of an Application before the Tribunal now that her complaint before the OLRB has failed. However, even if I were to accept this line of reasoning - and it is by no means clear that this is the applicant’s reasoning from her Application - I note that the OLRB’s decision, according to the applicant, dates from December 19, 2007, 17 months prior to her filing of an Application. The applicant has presented no information as to why she did not pursue her rights under the Code at that time.

9Given the circumstances, the Tribunal has not been satisfied that the delay in filing the Application was incurred in good faith within the meaning of section 34(2) of the Code. The Application is therefore dismissed.