Foley v. National Automobile, Aerospace, Transportation, 2009 HRTO 1680

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Karen Foley

Applicant

-and-

National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 222

Respondent

and B E T W E E N:

Karen Foley

Applicant

-and-

General Motors of Canada Ltd. and Andy Michalczak

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: October 15, 2009

Citation: 2009 HRTO 1680

Indexed as: Foley v. National Automobile, Aerospace, Transportation

1This Interim Decision addresses the respondents’ request for the dismissal of the Applications pursuant to s. 45.1 of the Ontario Human Rights Code (the “Code”) on the basis that the substance of the Applications have been appropriately dealt with by the internal investigation process and the grievance and arbitration procedure. The respondents in TR-0514-09 (the employer Application) also alleged that the employer Application was out of time and in the alternative, sought the removal of the personal respondents. The respondents in TR-0513-09 (the union Application) also alleged that the facts do not give rise to a breach of the Code and is out of time.

2The complaints upon which the Applications are based were filed with the Ontario Human Rights Commission on May 3, 2007 and allege discrimination on the basis of disability and sex, sexual solicitation and reprisal. The alleged discrimination by Andy Michalczak took place between October 2002 and August 22, 2003. The applicant asserted that her complaints about him to management and the union were not taken seriously.

3The applicant agreed to the request to remove all the personal respondents except Andy Michalczak, on condition that the institutional respondents provide contact information for the personal respondents. It is not necessary at this stage that the provision of the contact information should be a condition of removing the personal respondents. I find that it is appropriate to remove all the personal respondents except Andy Michalczak. The style of cause will be amended accordingly. The allegations against Mr. Michalczak, if proven, could give rise to a finding of a breach of the Code by him personally and the employer respondent may not necessarily be vicariously liable for his actions.

Request to Dismiss Under Section 45.1

4The respondents submitted that the applicant filed a grievance and an internal human rights complaint with respect to the same matters and these allegations were jointly investigated by the employer and the union. They jointly concluded that the allegations of discrimination were not substantiated. These findings were jointly reviewed and upheld by the CAW National Employment Equity Representative and the Management Employment Equity representatives.

545.1 of the Code provides 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.

6The Tribunal has held, and I agree, that an internal investigation process is not a proceeding within the meaning of section 45.1 of the Code: Mauer v. Metroland Media Group, 2009 HRTO 200 at para 11. Accordingly, I find that the substance of the Applications has not been appropriately dealt with by the internal investigation processes.

7Further, the union did not pursue the grievance to arbitration and therefore, the substance of the Applications has not been appropriately dealt with by the grievance procedure.

Lack of Jurisdiction over Union Application

8The union submitted that the essence of the union Application is that the union officials failed to adequately investigate the applicant’s allegations and refused to pursue a grievance on her behalf. The union submits that these alleged facts, even if true, do not amount to a breach of the Code by the union but rather amount to an alleged breach of the duty of fair representation.

9This Tribunal has held that the mere failure to pursue a grievance on behalf of an applicant does not make the union a party to the alleged employer discrimination: Khaiter v. York University Faculty Association, 2008 HRTO 241 at para 42 and 43; Baylet v. Universal Workers Union, 2009 HRTO 700 at para 17.

Oral Submissions

10I find that the union has raised a serious question whether the facts as alleged could give rise to a finding that the union has breached the Code.

11In addition, both parties have raised a serious question whether the Applications, filed in 2007 in respect of events in 2003, are out of time.

12The Tribunal will convene a hearing to hear the parties’ evidence and oral submissions on the preliminary issues of delay and whether the union Application discloses facts which could result in a finding of a breach of the Code by the union.