HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jason Coffin

Applicant

-and-

Toronto Transit Commission, Amalgamated Transit Union, Local 113, Peter Janis, Bob Kinnear and Kevin Morton

Respondents

DECISION

Adjudicator: Naomi Overend

Date: November 2, 2009

Citation: 2009 HRTO 1840

Indexed as: Coffin v. Toronto Transit Commission

INTRODUCTION

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 18, 2009, alleging that the respondents discriminated against him in respect of employment on the basis of disability. This Decision concerns whether the applicant’s delay in filing his Application deprives the Tribunal of jurisdiction over this Application.

2The applicant advises in his Application that his employment was terminated in June 2007. His former employer, the Toronto Transit Commission (“TTC”) states the applicant’s employment, in fact, ended on May 7, 2007, more than two years before the Application was filed. In subsequent documents, the applicant did not take issue with the May date.

3The Amalgamated Transit Union, Local 113 (“Local 113”) filed a grievance on his behalf on May 16, 2007. At a Local 113 monthly meeting, held on October 21, 2007, the membership voted against referring the applicant’s grievance to arbitration. This was at the recommendation of the Executive Board.

4The applicant advises that he wrote to the International of the Amalgamated Transit Union (the “International”), to ask it to review the decision of Local 113. Although he did not provide a copy of the letter he sent to the International, he did provide the response he received from it on July 24, 2008. Dissatisfied with that response, he sent a further letter (also not provided) on August 4, 2008, to which the International responded on August 26, 2008. At this point, he was advised the International considered the case closed.

5Both the TTC and Local 113 have asked the Tribunal to dismiss this Application as being out of time.

DECISION AND ANALYSIS

6Subsection 34(1) 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) to which the application relates. It also gives the Tribunal discretion to accept late applications in certain circumstances:

34 (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.

7Pursuant to s. 34 of the Code, where an application is filed more than a year after the incident to which the Application relates (or after the last incident in a series of incidents), the Tribunal has no jurisdiction to deal with the application unless it is satisfied that the delay in filing the application was incurred in good faith. As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, “the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.” It is incumbent upon the applicant to provide the Tribunal with an explanation as to why he or she did not pursue his or her rights under the Code in a timely manner.

Timeliness

8The TTC takes the position that its final act occurred on the date it terminated the applicant’s employment, 25 months prior to the filing of the Application. It submits that it had no involvement in or control over Local 113’s decision-making process and, accordingly, any subsequent acts involving Local 113 cannot be included in calculating delay vis-à-vis the portion of the Application against it.

9Local 113 states that its final act, which was the vote to not take the grievance to arbitration, occurred on October 21, 2007, some 20 months before the applicant filed his Application.

10The applicant urges the Tribunal to accept that the time for calculating his delay starts on August 26, 2008, the moment he received the final letter from the International closing his matter. If that assertion is accepted, his Application is within the one-year time limit and the question of jurisdiction does not arise.

11The applicant has not submitted any other documents, such as any relevant portion of the Union constitution or the applicant’s correspondence to the International. Accordingly, all that is before me are the two responses from the International to suggest what authority the International has over Local 113. In its July 24, 2008 letter to the applicant, the International advises the following:

…as a general matter, local unions are afforded a wide range of discretion in carrying out their representational responsibilities, including decisions as to whether to pursue grievances. Such decisions by the local are given deference, absent a finding of any arbitrary, discriminatory or capricious conduct. Seeing no evidence of this type of conduct in this case, we find the actions of the local to entirely appropriate.

12It would appear from this passage that the role of the International is a limited form of review of the Local’s decision. The International, which is located in Washington, D.C., is not simply an extension of Local 113, but is a separate body.

13For these reasons, I accept Local 113’s assertion that the final act involving it occurred in October 2007. The 20 month delay in filing his Application (and 25 month delay vis-à-vis the TTC) is outside the time limit set out in s. 34(1) of the Code. In order for this matter to be within its jurisdiction, the Tribunal must be satisfied that the applicant has demonstrated that the delay was incurred in good faith.

Good Faith

14The applicant does not allege that he was unaware of his human rights, or the process that was in place for pursuing those rights. That is, when the TTC terminated his employment, or when Local 113 chose not to pursue his grievance, he does not allege that he did not know that he could file a complaint (prior to June 30, 2008) or application (subsequent to June 30, 2008) against his employer and/or his union on the basis of employment and membership in a trade union respectively. Rather, it would appear from his submissions that he chose to only pursue the matter via a request for review to the International.

15The applicant has not demonstrated that his failure to file a complaint in a timely manner was in good faith. This conclusion is further bolstered by the fact that, upon receipt of the August 26, 2008 letter from the International, he did not immediately pursue his Application, but waited another almost ten months to file, a further delay for which he has provided no explanation. In the absence of good faith, it is not necessary to consider the question of prejudice to the respondents.

16Accordingly, the Tribunal has no jurisdiction to deal with the Application. The Application is dismissed.