HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ninghui Mu

Applicant

-and-

Cargill Foods, a Division of Cargill Limited, Brad Haigh and Chris Riecker

Respondents

-and-

United Food and Commercial Workers Canada Locals 175 and 663

Intervener

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: November 2, 2009

Citation: 2009 HRTO 1839

Indexed as: Mu v. Cargill Foods

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 June 17, 2009. She alleges discrimination in the context of employment on the basis of race, sex, and age. She also alleges reprisal or threat of reprisal. Specifically, the applicant states her employment was terminated unfairly and in breach of her human rights, that unfair conditions were imposed on her as a condition of re-employment, and that she has been subjected to discrimination in the workplace for a long period of time.

Background

2On September 15, 2009, the applicant’s union, the United Food and Commercial Workers Canada Locals 175 and 663 (“Union”) sought leave to intervene. It indicated that the Union had filed a grievance on the applicant’s behalf alleging unjust termination.

3The grievance was denied by the employer and the Union decided not to refer the matter to arbitration. The applicant advised the Union that she wished to appeal the Union’s decision not to refer the grievance to arbitration. An appeal hearing was scheduled for October 22, 2008, but adjourned because of the applicant’s unavailability. According to the Union, although it has remained in contact with the applicant, the appeal hearing has still not proceeded because of the applicant’s unavailability. The Union states that, if the applicant is successful in her appeal of the Union’s decision, the Union will refer the matter to a grievance arbitration.

4The respondents filed a Response to the Application on September 22, 2009. The respondents confirmed that a grievance had been filed, but they do not seek to defer the Application on this basis.

5Instead, they ask that the Tribunal dismiss the Application because it was filed more than one year after the alleged incidents of discrimination.

6The applicant filed a response to the Union’s request to defer the Application pending the outcome of the grievance. She did not file a Reply and has not addressed the respondents’ request to dismiss the Application based on timeliness.

Union’s request to intervene

7The Tribunal indicated in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131 that:

A union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents when the application alleges discrimination in employment. Absent exceptional circumstances, the applicant’s bargaining agent will be granted intervention status in Tribunal proceedings where it requests it.

8I am satisfied that the Union has the requisite interest in this Application. The Union is granted leave to intervene.

Union’s request to defer

9Section 45 of the Code gives the Tribunal the power to defer an application in accordance with its Rules of Procedure (“Rules”).

10Rule 14.1 of the Rules states:

The Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative, at the request of an Applicant under Rule 7, or at the request of any party.

11The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

12Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer the Application, having regard to the status of each proceeding and the steps that have been taken to pursue them.

13Based on the Union’s submissions, it would appear that the grievance lies dormant. While it is possible that it will be referred to arbitration, the likelihood seems remote and, in any event, is contingent upon the applicant pursuing (and being successful in) an appeal of the Union’s decision. In the circumstances, I find that it would be unfair to defer the Application. The Union’s request to defer is denied.

The respondents’ request to dismiss

14The applicant states that the last incident complained of occurred at the end of June 2008. The respondents argue that the bulk of the incidents complained of occurred before the termination of the applicant’s employment on January 28, 2008. They state that, to the extent that the alleged reprisals relate to the respondents’ offer of re-employment (made June 4, 2008), the Application (dated June 17, 2009) is still out of time.

15In my view, it is appropriate to determine the respondents’ request for an early dismissal of the Application as a preliminary matter. Section 34 of the Code states:

(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.

16Section 34 of the Code requires applications to the Tribunal to be made within one year of the last incident of alleged discrimination unless the applicant can show the delay was incurred in good faith and there will be no substantial prejudice to any respondent.

17There is a significant issue regarding the Tribunal’s power to hear this matter as a result of the delay. In the circumstances, the Tribunal will consider whether the Application should be dismissed under section 34(1) of the Code or whether it is appropriate for the Tribunal to exercise its discretion under section 34(2) of the Code.

18Accordingly, the Registrar will schedule an oral hearing to address the following issues:

a. Was the Application filed within one year of the incidents to which the Application relates?

b. If the Application was filed after the expiry of that time limit, was the delay incurred in good faith and will substantial prejudice result to any person affected by the delay?

19If parties or the intervenor wish to rely on any written materials (including written submissions, documents or case law) or facts not already before the Tribunal, it must deliver such additional material to the other parties and file it with the Registrar no later than two weeks before the date of the hearing.

20I am not seized of this matter.