Ilias Alexandris v. Coca-Cola Bottling Company, 2009 HRTO 524

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ilias Alexandris

Applicant

-and-

Coca-Cola Bottling Company

Respondent

INTERIM DECISION

Adjudicator: Judith Keene

Date: April 29, 2009

Citation: 2009 HRTO 524

Indexed as: Alexandris v. Coca-Cola Bottling

1This is an Interim Decision in respect of an Application filed on October 17, 2008 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The purpose of this Interim Decision is to address the respondent’s Request for early dismissal and to give directions for dealing with this Application.

2In this Application, the applicant alleges discrimination in employment on the basis of disability. The facts relied on by the applicant are an alleged “unlawful” layoff in 1994 that resulted in a reduction in the applicant’s pension entitlement.

3In its Response, the respondent asks for dismissal of this Application without a hearing on the basis that it is prejudiced by the applicant’s delay in filing the Application. The respondent also states that the applicant received the full value of his accrued pension benefits and a portion of the surplus in 1995 when the relevant pension plan was partially wound up. Finally, the respondent states that the applicant signed a release in 1995 that bars further claims in respect of that pension plan, and have attached a copy of that release to their Response. The release states as follows:

I have indicated my election above in full and final satisfaction of all my entitlements from the Employee’s Retirement Plan of Canada Dry Bottling Company Ltd. In consideration of full settlement of the value of my pension benefits under the Plan, I do hereby release and forever discharge Canada Dry Bottling Company from any and all obligations and liabilities to me and to my heirs and executors in respect of such settlement from any claims and demands in respect of any matter arising out of the Employee’s Retirement Plan of Canada Dry Bottling Company Ltd.

4The respondent gives a detailed chronology in regard to its purchase and restructuring of the firm for which the applicant worked until 1986. It states that when it ceased to operate the original employer as a separate corporation, in 1994, it undertook a restructuring, which involved terminating the employment of numerous employees in various departments, some of whom, including the applicant, were hired back in 1995. As part of the restructuring, there was a partial windup of the firm’s pension fund, and the applicant exercised one of his options in regard to that fund.

5In claiming prejudice, the respondent states that documents relating to the reasons for the 1994 layoff and identifying the individuals affected are no longer available. They state that most of the management employees involved in the layoff are no longer employed with the respondent, so that their ability to investigate and defend themselves is compromised.

6The respondent points out that the Application does not identify individuals whom the applicant alleges promised that he and other affected employees would be “given back their seniority”, or an individual who allegedly told him that he “could not perform his job”. They also assert that they have no records that would indicate that the applicant suffered from a disability in 1994, or whether he had any limitations at the time his employment was terminated. They state that the respondent was rehired in January 1995, remains employed by the respondent, is represented by a union and has never filed a grievance nor a claim under the respondent’s internal system for dealing with discrimination claims.

7The Tribunal sent the Response to the applicant and asked for a Reply within fourteen days pursuant to the Tribunal’s Rules of Procedure.

8In his Reply, the applicant admits that the events in issue took place fifteen years ago, but states that he and others affected took all the means available to complain. He states that “a formal complaint” was made “at a time when there was no union representation”, (apparently to Bob Chalmers, in 1997) and that one of the affected workers approached “Ryan Parsons of the CAW negotiating committee” with a letter, to no avail.

9The applicant identifies the person who made the remark about his not “being able to drive a forklift” as Bill Hoffman, the operations manager in 1994. He gives further details about the events at issue. This includes an allegation that the alleged offer to return seniority was retracted because of other workers objecting to the idea that the applicant and the other affected workers would be allowed to have their seniority returned while keeping their severance pay. He states that one of the objecting workers said “why did you give the seniority back to these black guys?”.

The preliminary legal issues

10Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within a one year time limit. It also gives the Tribunal discretion to accept late applications in certain circumstances:

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.

11The respondent has requested that the Application be dismissed because of delay. The respondent has also asked for early dismissal of the Application on the basis of the signed release.

12Section 43(2) of the Code provides that the Tribunal shall not finally dispose of an application within its jurisdiction without affording the parties a chance to make oral submissions. In the circumstances, it appears to be most consistent with a fair, just and expeditious process to schedule a teleconference to address the respondent’s preliminary issues. Accordingly, the Registrar will schedule a teleconference to hear submissions on the issue of whether the Tribunal should dismiss the Application as a result of the applicant’s having signed a release and/or delay. If the parties consent, the preliminary issues may be decided on the basis of written submissions.

13The parties will be required to address the following issues:

(a) Was the delay incurred in good faith? Is there any further explanation for the delay?

(b) Is there any substantial prejudice to any person affected by the Application if the Tribunal exercises its discretion to accept the Application pursuant to section 34(2)?

(c) What further information can the applicant give as to the identity of the individuals involved in the alleged incident of discrimination?

(d) What further information can the applicant give as to the facts of the alleged incident of discrimination?

(e) Should the Application be dismissed because of the release apparently signed by the applicant on January 25, 1995?

14The following directions shall apply to the conference call:

(a) The applicant should be prepared to proceed first, by responding to the written arguments of the respondents on the questions set out in paragraph 11 above.

(b) Any party who wishes to rely on any written materials (including written submissions or documents) in addition to the submissions already filed, or rely on any facts not contained in the Application, Response or Reply, must deliver them to the other party and file them with the Registrar within 14 days of the date of this Interim Decision.

15I am not seized of this matter.