Dwyer v. Chrysler Canada, 2009 HRTO 88

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Stanley Dwyer

Applicant

-and-

Chrysler Canada Inc.

Respondent

INTERIM DECISION

Adjudicator: David A. Wright

Date: January 27, 2009

Citation: 2009 HRTO 88

Indexed as: Dwyer v. Chrysler Canada

1On July 9, 1976, Stanley Dwyer was dismissed from employment by the respondent, Chrysler Canada. Thirty-two years, two months, and seven days later, on September 16, 2008, he filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges that the 1976 dismissal was discriminatory on the basis of colour, place of origin, ethnic origin and disability.

2Since 1976, the applicant has pursued various legal avenues to obtain redress. He filed a grievance through his union, U.A.W. Local 1285. The Union pursued the grievance to arbitration before Arbitrator K.A. Hinnegan. The arbitrator dismissed the grievance on January 17, 1977. An application for judicial review to the Divisional Court was successful and the matter was remitted to be determined by a different arbitrator. On October 23, 1978, the grievance was again dismissed: see Re Chrysler Canada Ltd. and United Automobile Workers, Local 1285 (1978), 1978 CanLII 3525 (ON LA), 20 L.A.C. (2d) 220 (O’Shea). An application for judicial review and application for leave to appeal to the Ontario Court of Appeal were also dismissed. He also filed a complaint with the Commission regarding the dismissal on May 9, 1980. This complaint was dismissed. It appears that he also filed a duty of fair representation application at the Ontario Labour Relations Board, which was dismissed. Proceedings have been ongoing under workers’ compensation legislation.

3In its Response, the respondent argues that the Application should be dismissed as a result of abuse of process as a result of the prior proceedings and delay. The applicant has made full submissions on these issues in his Reply, although neither party directly addressed the application of ss. 34 (1) and (2) of the Code, which read as follows:

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.

4There is a further reason why the Tribunal may not have jurisdiction to determine this Application. Subsection 53(8) of the Code reads as follows:

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.

Neither party made submissions relating directly to the application of this subsection.

5The Tribunal will determine, as a preliminary matter, the issue of its jurisdiction to determine this Application. Accordingly, the applicant shall have until February 9, 2009 to deliver and file all his submissions regarding: (i) whether the Tribunal has jurisdiction to determine this Application, in light of the application of s. 53(8); and (ii) whether the Tribunal should waive the time limit pursuant to s. 34(2). The respondent need not make any submissions unless directed to do so by the Tribunal.

6I note that the CAW - Canada, Local 1285 seeks leave to intervene. There is no need to determine the issue of its intervention at this time. The other parties shall copy the Union with any correspondence or material filed with the Tribunal, and the Tribunal will provide it with any decisions. Finally, the respondent’s name in the style of cause is amended to reflect its correct legal name, Chrysler Canada Inc.

7I am not seized of this matter.