Miksovsky v. Fleet Industries, 2009 HRTO 1768

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Stan Miksovsky

Applicant

-and-

Fleet Industries Ltd.

Respondent

AND B E T W E E N:

Stan Miksovsky

Applicant

-and-

International Association of Machinists and Aerospace Workers

Respondent

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: October 26, 2009

Citation: 2009 HRTO 1768

Indexed as: Miksovsky v. Fleet Industries

1These Applications were received by the Tribunal on May 28, 2009. The respondent in TR-0369-09 (the “employer respondent”) filed a Request for Order during Proceedings seeking to have the Application dismissed as filed after the June 30, 2009 statutory deadline. The respondent in TR-0958-09 will be referred to as the Union respondent.

2The applicant filed complaints with the Ontario Human Rights Commission on January 15, 2008 against both respondents. The complaint against the employer was given Commission File No. RSEA-7B7RBM. The complaint against the union bears Commission File No. VMAS-7BJKMM. The complaints alleged that the employer and the union negotiated the payment of severance for all employees except the applicant because of his age.

The Legislation

3As of June 30, 2008, the system for enforcing rights under the Code has been significantly amended. Before, individual complaints were only heard by the Tribunal if the Ontario Human Rights Commission (the “Commission”) decided to refer them for a hearing. Now, applicants may file their claims, now called applications, directly with the Tribunal. The Legislature made provision for complainants who had filed complaints with the Commission prior to June 30, 2008 to file transitional applications with the Tribunal during the period June 30, 2008 to June 30, 2009.

4The transition provisions are set out in section 53:

53(1) This section applies to a complaint filed with the Commission under subsection 32 (1) of the old Part IV or initiated by the Commission under subsection 32 (2) of the old Part IV before the effective date.

(2) Subject to subsection (3) and despite the repeal of the old Part IV, during the six-month period that begins on the effective date, the Commission shall continue to deal with complaints referred to in subsection (1) in accordance with subsection 32 (3) and sections 33, 34, 36, 37 and 43 of the old Part IV and, for that purpose,

(a) the Commission has all the powers described in subsection 32 (3) and sections 33, 34, 36, 37 and 43 of the old Part IV; and

(b) the provisions referred to in clause (a) continue to apply with respect to the complaints, with necessary modifications.

(3) Subject to subsection (4), at any time during the six-month period referred to in subsection (2), the person who made a complaint that is continued under that subsection may, in accordance with the Tribunal rules, elect to abandon the complaint and make an application to the Tribunal with respect to the subject-matter of the complaint.

(4) The Tribunal shall make rules with respect to the practices and procedures that apply to an application under subsection (3) in order to ensure that the applications are dealt with in an expeditious manner.

(5) If, after the end of the six-month period referred to in subsection (2), the Commission has failed to deal with the merits of a complaint continued under that subsection and the complaint has not been withdrawn or settled, the complainant may make an application to the Tribunal with respect to the subject-matter of the complaint within a further six-month period after the end of the earlier six-month period.

(6) The new Part IV applies to an application made under subsections (3) and (5) ….

(8) No application, other than an application under subsection (3) or (5), may be made to the Tribunal if the subject-matter of the application is the same or substantially the same as the subject-matter of a complaint that was filed with the Commission under the old Part IV.

5From June 30, 2008 until December 31, 2008, applicants could file section 53(3) applications and from January 1, 2009 to June 30, 2009, applicants could file section 53(5) applications with respect to “continued” complaints. The statutory deadline for making a transitional application is June 30, 2009.

The Tribunal’s Rules

6The Tribunal’s Rules of Procedure for Transitional Applications under Section 53(3) and 53(5) of the Human Rights Code set out the steps required to file a transitional application:

12.1 To file a section 53(5) Application an Applicant must complete the Application (Form TR-1), deliver it to the Respondent(s) and file it with the Tribunal. A complete Application must provide the information requested in every section of the Application form and must include all required attachments.

12.2 The completed section 53(5) Application (Form TR-1) must be filed between January 1 and June 30, 2009 and must include:

a) the complaint or the amended complaint filed at the Commission; and

b) the Commission complaint file number.

The Chronology

7On May 28, 2009, the Tribunal received a single section 53(5) application (TR-1) by email attaching the two original complaints against the employer and union respondents. The TR-1 listed only the employer respondent by name and made reference to the Commission File No. VMAS-7BJKMM, but it appeared to the Tribunal that the applicant intended to pursue an application against both respondents. The applicant did not file any statements of delivery at that time indicating that the Application had been delivered to the respondents.

8On August 10 2009, the Tribunal received a second TR-1 form dated August 6, 2009 with complaints attached, together with statements of delivery indicating that the materials had been delivered to the respondents on August 6, 2009.

Analysis

9Section 53(5) effectively sets a deadline of June 30, 2009 for when a transitional application may be “made” to the Tribunal.

10I agree with the employer respondent that June 30, 2009 is a statutory deadline and I have no discretion to waive or extend that deadline. However, I do have to determine when an application is “made” to the Tribunal and in doing so I have the discretion to waive the Tribunal’s Rules.

11In my view, an application is made to the Tribunal if an applicant has filed sufficient material with the Tribunal by June 30, 2009 to indicate his or her intention to make an application. In some cases, the TR-1 form may suffice. In other cases, the original Commission complaint may suffice.

12My discretion to waive the Tribunal Rules is set out in Rule 4.3:

4.3 To ensure the fair, just and highly expeditious resolution of an Application under section 53(3) or section 53(5) of the Code the Tribunal may:

a) vary or waive the application of these Rules at any time on its own initiative or on the request of a party, with or without terms;

13In the circumstances of this case, I have exercised my discretion to relieve against the technical requirements of Rule 12 regarding the filing of an application. Having regard to the fact that the respondents were aware of the complaints since January 2008, and the applicant’s delivery of the materials to the Tribunal before the statutory deadline, I find that these are appropriate circumstances to relieve against the strict application of the Rules requiring delivery of the Applications to the respondents prior to the delivery of the Applications to the Tribunal. There is no prejudice to the respondents in learning on August 6, 2009 that the transitional applications were filed.

14The TR-1 filed with the Tribunal on May 28, 2009 clearly indicates that the applicant intended to proceed against both respondents. This is confirmed by the attachment of both complaints.

15I find that the Applications against the respondents was made prior to the statutory deadline.

Processing Applications Together

16The Tribunal proposed processing the Applications together on the basis that they raised similar facts and issues. The employer respondent objects on the basis that the issues raised in each Application are sufficiently different to justify holding separate hearings.

17The employer respondent asserts that the employer and union negotiated an agreement to resolve all issues related to severance pay. The agreement involved the employer providing the severance monies to the union for distribution at their sole discretion. Accordingly, the employer asserts that the issues are sufficient different to justify proceeding separately.

18I do not agree. In both Applications, the negotiation and agreement between the union and the employer are important facts to be determined. It may be that the involvement of each after that agreement differs, but that is not sufficient at this stage to conduct separate hearings. If there are measures that can be taken in the future to ensure that the union and the employer do not have to participate in all aspects of the other respondent’s case, those measures can be implemented by the Member hearing the Application.

19The respondents have not indicated an interest in mediation. The Tribunal will contact the parties to canvass dates for the first day of hearing.