Polihronakos v. Mississauga (City), 2010 HRTO 140

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

George Polihronakos

Applicant

-and-

The Corporation of the City of Mississauga, Canadian Union of Public Employees and its Local 66, Eric Draycott, Joe Pitushka,

Martin Powell and Silvio Cesario

Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin

Date: January 21, 2010

Citation: 2010 HRTO 140

Indexed as: Polihronakos v. Mississauga (City)

1This is an Application filed on July 29, 2009 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), alleging discrimination in employment by the respondents on the basis of age and reprisal. The purpose of this Interim Decision is to schedule a half day hearing to hear submissions on various preliminary issues including delay.

BACKGROUND

2The Application arises out of the applicant’s employment as a temporary labourer with the City of Mississauga in the period September 9, 2002 to September 12, 2008. Among other things, the applicant alleges that the City and the personal respondents (who are/were managers or directors of the City) discriminated against him by awarding job postings to younger and less experienced employees or candidates; by poisoning his work environment; and by “terminating” him on September 3, 2008. In addition, the applicant alleges that his union discriminated against him by their actions or inactions in promoting and maintaining the allegations in the Application. It appears that a primary reason for the applicant’s allegations against the union relates to his view that the union did not fully represent him in grievances because he was a temporary employee and the collective agreement contained provisions that restricted his right to have access to the grievance and arbitration procedure. The Application refers to July 13, 2009 as being the date of the last event, although it is not obviously apparent from the Application what this date relates to.

3A Response has been filed by the City and personal respondents, along with a Request for Order During Proceedings (the “Request”). In the latter, the City requests that a significant portion of the Application be dismissed on the basis that it is filed beyond the one year time limit prescribed in section 34 of the Code. In this respect, the City argues that the allegations fall into two separate categories – job competition allegations and the August 2008 suspension incident (which the applicant characterizes as a termination) and subsequent events. The City argues that the former allegations are untimely. In addition, the City requests that the personal respondents be removed as parties. The City requests a conference call to deal with the Request.

4A Response has been filed by the Union. Among other things, the Union argues that the Application does not disclose a prima facie case of discrimination against the union. In addition, the union submits that most, if not all of the issues in dispute, are out of time.

5The applicant has filed a Response opposing the Request. The applicant argues that the job competitions are linked to the allegations regarding the August 2008 suspension. Further, the applicant states that the gap of more than a year between 2007 and 2008 is due to his good faith that “the system would work for me and …that the City of Mississauga would want to work out this problem”. On the issue of removing personal respondents, the applicant states that he is not “for or against” this motion, but then goes on to say that the personal respondents should be sharing equally with all other respondents. The applicant requests an in person hearing to deal with the Request.

6In his response, the applicant has also checked “Request to amend Application or Response”, which presumably relates to the additional facts set out in the Request, along with the numerous documents appended to his Response.

7The union has provided a letter to the Tribunal in which it requests that in the event the Tribunal does not summarily dismiss the Application, the union reserves its right to respond to the new allegations against it made in the Response.

8All parties have agreed to mediation, although the City respondent has requested that its Request be addressed prior to scheduling any mediation.

DECISION

9I find that it is appropriate to schedule a half day hearing to address the preliminary issues raised.

10Section 34 of the Code states:

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 parties should be prepared to make submissions on the following:

(a) Do the allegations constitute a series of incidents within the meaning of the Code? If they do, was the Application filed within one year after the last incident? If it was not, was the delay in filing the Application incurred in good faith and with no substantial prejudice to the respondents?

(b) Do the events described in the Application and other material filed (assuming the Tribunal permits the additional particulars to be relied on by the applicant) raise allegations of discrimination on a prohibited ground covered by the Code against the union. If not, should the Application be dismissed against the union?

(c) Should the personal respondents be removed as parties?

12If the parties wish to rely on any supporting material for the purposes of the hearing of these issues (including submissions, facts or caselaw not already provided in the material filed), the parties are directed to deliver this material to each other and the Tribunal, by no later than two weeks before the date scheduled for hearing.

13The union may file a further response to the allegations made by the applicant in the Form 11 Response within 14 days of the date of this Interim Decision.

14The Tribunal draws the applicant’s attention to the Applicant’s Guide, available on the Tribunal’s website or from the Registrar’s office, for assistance in preparing for the hearing. The Guide, at pages 2 – 3, provides a list of resources available to applicants appearing before the Tribunal.

15I am not seized of this matter.