HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Orlando Prescod
Applicant
-and-
National Steel Car Limited and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 7135
Respondents
reconsideration DECISION
Adjudicator: Brian Cook
Indexed as: Prescod v. National Steel Car
Written Submissions By
Orlando Prescod, Applicant ) On his own behalf
United Steelworkers, Local 7135, respondent ) Cathy Baker, Counsel
1This Decision decides a request by the applicant to reconsider the Tribunal’s Decision 2009 HRTO 1246 (the “Decision”) dismissing this Application.
Background
2After receiving the Application, the Tribunal issued a Notice of Intent to Dismiss the Application on the basis it appeared that the Application was outside the Tribunal’s jurisdiction because it was filed more than one year after the last incident of discrimination described in the Application and it appeared that the subject-matter of the Application is substantially the same as the subject matter of a complaint that was filed with the Ontario Human Rights Commission. The Notice of Intent to Dismiss referred to sections 34(1) and 53(8) of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), which deal with these matters. I note for the purposes of this Decision the complaint filed with the Commission did not name the Union as a respondent.
3The Tribunal also issued a Notice of Incomplete Application. The Application (Form 1) only identified National Steel Car Limited (the employer) as a respondent. However the supplemental form, Form 1-A, identified both the employer and United Steel Workers Local 7135 (the “union”) as respondents. The applicant was asked to confirm he wished to name the union as a respondent and he did so.
4On August 12, 2009, the Tribunal issued its Decision dismissing the Application on the grounds that the subject matter of the Application was substantially the same as the subject matter of a complaint that was filed with the Human Rights Commission of Ontario. The Decision names both the union and employer as respondent.
5The applicant filed a Request for Reconsideration. He submitted that when he filed the Application, he intended to name both the employer and the union as respondents. He said that the last discriminatory act by the union was the union’s decision not to pursue a grievance and that this occurred in May or June 2008, less than one year before he filed the Application.
6In a Case Assessment Direction dated April 27, 2010, I determined that the relevant documents should be sent to the union to allow the union to make submissions regarding the Request for Reconsideration. I also invited the union to make submissions on the issues raised in the Notice of Intent to Dismiss if the Request to Reconsider were to be allowed.
7The union filed submissions. The applicant filed a reply and the union provided further submissions in response.
The Reconsideration Request
8The Tribunal’s Decision dismissed the Application on the grounds that the subject matter of the Application was substantially the same as the subject matter of a complaint that was filed with the Human Rights Commission of Ontario (the “Commission”). The complaint that was filed with the Commission dealt only with the employer. The union was not named in that complaint.
9It is clear that the reasons for dismissing the Application against the employer do not apply to the union. To the extent that the Decision dismissed an Application in respect of the union, it is appropriate to reconsider the Decision.
10The applicant is not barred by section 53(8) from bringing the Application against the union. This does not change the dismissal of the Application as against the employer, which remains barred by section 53(8).
The Application against the union
11The union submits that the Application against it should be dismissed because it was not filed within one year of the alleged discriminatory event, contrary to section 34(1) of the Code, and because the Application does not disclose a prima facie case of discrimination. A prima facie case is one that establishes a factual foundation for allegations which, if believed, provide a complete and sufficient basis for finding in the applicant’s favour, before considering any responding evidence.
12In the circumstances the Tribunal will schedule a two-hour hearing by telephone conference call to deal with the union’s request that the Application be dismissed for both delay and for failure to disclose a prima facie case. The parties may file any materials or caselaw they intend to rely on in the hearing with each other and the Tribunal no later than 14 days before the date of the scheduled hearing.
Dated at Toronto, this 22nd day of July, 2010.
”signed by”______________
Brian Cook
Vice-chair