Chanderpaul v. Labourers’ International Union of North America, 2009 HRTO 2108

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dindilall Chanderpaul

Applicant

-and-

Labourers’ International Union of North America, Local 183

and Tony Dionisio

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: December 4, 2009

Citation: 2009 HRTO 2108

Indexed as: Chanderpaul v. Labourers’ International Union of North America

1This Application was received by the Tribunal on June 26, 2009 and again on June 30, 2009. The original complaint was filed with the Ontario Human Rights Commission on May 29, 2004.

2The respondent, Labourers’ International Union of North America, Local 183 (“Local 183”) filed a Response alleging that the Application was not made against it or the personal respondent before the June 30, 2009 statutory deadline.

3The personal respondent Dionisio was on the executive board of Local 183 in 2004. In June 2006, the International Union, the Labourers’ International Union of North America (“LIUNA”) put Local 183 under trusteeship and removed the personal respondent. The personal respondent no longer has a position in Local 183 and is adverse in interest to Local 183.

The Legislation

4As of June 30, 2008, the system for enforcing rights under the Human Rights Code, R.S.O. 1990, c. H.19, as amended 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.

5The 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.

6From 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

7The Tribunal’s Rules of Procedure for Transitional Applications 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

8On June 26, 2009, the Tribunal received a section 53(5) application (TR-1) with a Commission complaint attached. The TR-1 named the personal respondent Dionisio and LIUNA instead of Local 183, the institutional respondent named in the original complaint.

9LIUNA and Local 183 were separate entities in 2004 when the complaint was filed. Local 183 asserts that the applicant was well aware of this difference and therefore, by naming LIUNA and not Local 183, the Application was not made against Local 183.

10Further, the Application against the personal respondent was delivered to Local 183, but Local 183 refused to accept delivery on behalf of the personal respondent as he no longer worked for Local 183. The Tribunal directed the applicant to deliver the Application to the personal respondent and he did so on September 8, 2009.

11No Response has been filed by respondent Dionisio although the 35 day deadline for filing a Response has passed.

Analysis

12Section 53(5) effectively sets a deadline of June 30, 2009 for when a transitional application may be “made” to the Tribunal.

13I agree with Local 183 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 Rules.

14In 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 the intention to make an application. In some cases, the TR-1 form may suffice. In other cases, the original Commission complaint may suffice.

15Delivery of the application to the respondents is one of the most difficult aspects of the process to complete successfully. Although the Commission generally provided the complainant with the contact information for the respondents and their counsel, as in this case, corporate respondents may refuse to accept delivery on behalf of personal respondents, regardless of whether they continue to work for the corporate respondent, may refuse to disclose contact information for personal respondents so that delivery can be made directly to them, or may refuse to accept service delivered upon their counsel who represented them at the Commission. Understandably, this makes the delivery process difficult. Thus, sufficiency of the statement of delivery will generally not affect the date on which the application is considered to have been made to the Tribunal.

16My 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;

17In 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. I find that despite naming LIUNA rather than Local 183 in the TR-1, Local 183 ought to have been aware that it was the party intended to be named, as they were the party named in the original complaint. . Having regard to the fact that Local 183 has been aware of the complaint since 2004, I find that these are appropriate circumstances to relieve against the strict application of the Rules.

18I find that the Application against Local 183 was made prior to the statutory deadline.

Delay

19Local 183 has asked the Tribunal to disregard the new allegations relating to May and June 2009 set out in the Application. The transitional provisions of the Code are intended to deal with the subject matter of complaints filed with the Commission prior to June 30, 2008. Events which post-date the complaint by four years do not form part of the subject matter of the present Application.

20Local 183 alleges that the incidents set out in the original complaint were out of time. I agree that the 1999 allegations appear to be considerably beyond the one year time limit set out in section 34(1) of the Code. The applicant is directed to write a written explanation for the delay in raising the 1999 allegations, within 14 days of the date of this Decision. The Tribunal will issue further directions on these allegations.

21With respect to allegations made within the one year before the filing of the complaint in 2004, Local 183 submits that the passage of time has severely prejudiced their ability to respond. However, that delay was caused by the Commission and should not be a basis for dismissing the Application at this stage. The passage of time can be addressed by the member who hears this Application.

No Code Violation

22Finally, Local 183 submits that the Application does not engage the Code provisions. The application alleges discrimination by a vocational association on the basis of race, colour and ethnic origin. However, I agree that paragraphs (c) and (d) in the original complaint do not appear to engage that provision or the Local 183. Paragraph (c) is an assertion that Local 183 refused to make a donation to the applicant when he participating in a municipal election. Paragraph (d) is an assertion that the applicant complained to LIUNA (not a party to the complaint) many times.

23The applicant is directed to file a written submission explaining how paragraphs (c) and (d) in the original complaint amount to discrimination by a vocational association and Local 183 in particular. The Tribunal will issue further directions on these allegations.