Liana Desaulniers v. Canadian Auto Workers, 2009 HRTO 1743

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Liana Desaulniers

Applicant

-and-

Canadian Auto Workers

Respondent

RECONSIDERATION DECISION

Adjudicator: Eric Whist

Date: October 22, 2009

Citation: 2009 HRTO 1743

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 Application alleges that the respondent discriminated against the applicant in respect to membership in a vocational association on the grounds of disability and that the respondent engaged in reprisals contrary to the Code.

2The Application alleges that the applicant attempted to file a grievance on November 22, 2005, primarily in regards to a denial of benefits by her Thunder Bay employer, 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.

3In a decision dated September 30, 2009, 2009 HRTO 1583 (“the decision’), I dismissed the applicant’s Application because it was filed more than one year after the alleged last incident of discrimination. However, it has come to light that the applicant did provide submissions to the Tribunal, dated August 14, 2009, that should have been before me prior to my decision to dismiss the Application and which were not. The Tribunal has therefore decided, on its own motion, to reconsider whether the Application should be dismissed due to a delay in filing.

4The Tribunal’s authority to reconsider a decision derives from the Code and the Tribunal’s Rules. Section 45.7 of the Code states that the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision, and Rule 26.9 of the Tribunal’s Rules of Procedure states that “The Tribunal may reconsider a decision on its own initiative where it considers it advisable and appropriate to do so”. Given the fact that the applicant’s submissions on the very question of whether her Application should be dismissed were not considered it is advisable and appropriate for the Tribunal to now consider these submissions.

Submissions

5The applicant’s submissions are that she did file a complaint with the Ontario Human Rights Commission (“OHRC”) against her former employer in relation to the denial of benefits but alleges that she was told by the OHRC that they would only “go after the employer”, not her union. The applicant submits that she was told by her union, the CAW, that they could not pursue a grievance against her former employer because of the involvement of the OHRC. The applicant stated this led her to then file a complaint with the OLRB that the CAW had failed in its duty to provide her with fair representation. The applicant states that she learned that the OLRB could only force the CAW to file a grievance on her behalf and that she later took the CAW to Small Claims Court only to be told by the court that it was the wrong jurisdiction. The applicant then filed her Application with the Tribunal.

6The applicant goes on to submit that she has a learning disability that makes it difficult to process large amounts of written information, that she has suffered from emotional, mental and physical stress, that she could not afford the cost of a lawyer (apart from an initial brief advice session) and that the union’s failure to act responsibly has resulted in her not receiving the medical benefits that were due to her. The applicant attaches to her submissions a psychological assessment report as evidence of her learning disabilities, two letters the applicant sent to the CAW, a letter the applicant sent to the OLRB and two newspaper articles concerning union mergers in Thunder Bay.

Analysis

7Section 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.

8In the Decision I found that the last incident of alleged discrimination identified by the applicant was November 2005, when the CAW reportedly failed to file a grievance on her behalf. Clearly this is beyond the one-year period allowed for filing an Application. The applicant’s submissions do not change my finding on this issue.

9In the Decision I found that there was no evidence to show that the delay in filing the Application was incurred in good faith. The applicant had not provided any explanation for the almost four-year delay in seeking to enforce her rights under the Code regarding the events culminating in November 2005.

10I have considered this issue of the applicant’s delay in filing an Application again in light of the applicant’s submissions (and attached documents). My conclusion is that even if I was to accept that the applicant had somehow been led into believing that she could not file a human rights complaint against the CAW following the events of November 2005, and was under the further belief that she had to pursue her rights by means of a complaint to the OLRB, the fact remains that there was a further 17 months after her complaint to the OLRB was dismissed before she filed her Application with the Tribunal. I have not been satisfied that a persuasive explanation has been provided for why this further delay was incurred in good faith.

11The applicant states that she has a learning disability and that her limited financial means have prevented her from retaining legal counsel. However, I note that the applicant has made formal complaints to both the OHRC and to the OLRB, filed a claim in Small Claims Court and has received independent legal advice. Given these facts it is not clear why her learning disability and limited financial resources prevented her from filing an Application with the Tribunal in a more timely fashion.

12The applicant appears to be also arguing that she was unaware of her rights to file an Application. However, the Tribunal has found that ignorance of the law does not excuse undue delay in the initiation of a human rights application. The statutory deadline for filing an application gives individuals who are unaware of their rights sufficient time to seek advice or investigate their legal options. 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.

13Having considered the applicant’s submissions I am still of the opinion that the Application should be dismissed.