Humphries v. General Motors of Canada, 2010 HRTO 177

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Heather Humphries Applicant

-and-

General Motors of Canada Limited, Sharron Smith, Randy Giroux and Sykes Stan Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim Date: January 26, 2010 Citation: 2010 HRTO 177 Indexed as: Humphries v. General Motors of Canada

1This Application was received on June 30, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The respondents seek early dismissal of some or all of the Application under section 34(1) and 45.1 of the Code.

Background

2The applicant filed a complaint with the Ontario Human Rights Commission on February 22, 2006 alleging discrimination on the basis of sex dating back to 1994. The applicant worked for the corporate respondents as a Machinist Special Set up from May 1994 to July 2003, and then moved into assembly. She alleged that her husband, who was less qualified than her, was hired before her; that in 1995 her seniority date was adjusted and she fell behind a male colleague in seniority as a result; that she unsuccessfully applied for a job postings for tool and die work in December 2000, January 2001, July 2001, and July 2003. She alleges that 18 men were hired for tool and die work from October 2004 to January 24, 2005. She alleges that after she filed grievances and internal human rights complaints, she was disciplined in May 2005 and February 2006.

Delay

3Section 34 of the Code allows the Tribunal to consider applications alleging infringements of the Code brought within one year after the alleged breach. This was one of the amendments to the Code that went into force on June 30, 2008, and extended the limitation period from six months under the old Code. The section also preserves the Tribunal's 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.

4Under s. 34, the Tribunal may deal with an application filed more than a year after the incident, or the last incident in a series, if it is satisfied that the circumstances in s. 34(2) exist, that is, that the delay in filing the application was incurred in good faith and there is no substantial prejudice to the respondents.

5The applicant explained that when she contacted the Ontario Human Rights Commission (the "Commission") in 2001, they advised her to wait until after the internal grievances and complaints were dealt with before filing a complaint.

6The applicant did not file a grievance with respect to the December 2000 competition and the previous events, so that cannot be the explanation for not raising these issues earlier. Each competition is a discrete event and does not form a series of incidents. I find that the applicant has not established good faith with respect to the pre-December 2006 allegations and those allegations are therefore dismissed.

7The applicant filed an internal human rights complaint with respect to the January 2001 and July 2001competitions. The complaints were dealt with and a decision issued in August 2004 finding no discrimination, so it is not clear why she did not follow the advice of the Commission and file a complaint about the competitions at that time if she was not satisfied with the response of the respondents. I find that the applicant has not established good faith with respect to the January 2001 and July 2001 competition and these allegations are therefore dismissed.

8With respect to the February 2003 competition, it appears that the applicant filed neither a complaint nor a grievance and therefore waiting until 2006 to raise this competition was not a delay incurred in good faith. The allegation is accordingly dismissed.

9The applicant placed a transfer request in July 2003 for any positions in tool and die/mouldmaker. The applicant asserts that 18 men were placed in these positions from October 4, 2004 to January 25, 2005. The applicant filed a grievance on November 2004 with respect to the failure to hire her for a tool and die position in October 2004. This grievance was withdrawn by the union in approximately November 2004. Accordingly, it is not clear why the applicant waited until February 2006 to file a complaint about the October 2004 position and this allegation is accordingly dismissed.

10I find that the ongoing filling of positions from November 2004 to January 2005 amounts to a series of incidents, such that last date is approximately 13 months prior to the filing of the complaint. The applicant filed another grievance in April 2005 with respect to another position that arose after October 2004 and that grievance was still under consideration in May 2006.

11I accept that the applicant was advised by the Commission to wait until the grievance process was finished before filing a complaint, which advice is consistent with the general practice of the Commission at that time. Accordingly, I find that the delay between November 2004 and February 2006 in respect of any positions from November 2004 to July 2005 was incurred in good faith as she had an outstanding grievance during that time.

12I turn to a consideration of the respondents' assertion that it will experience substantial prejudice in responding to the filling of competitions from November 2004 to July 2005 because they sold the London defence operations in February 2003 and the remaining Electro-Motive operations in April 2005 and were not required to retain all records. The remaining records may be incomplete and/or in the possession of the purchaser.

13I am not satisfied that the respondents have established substantial prejudice at this time. The alleged prejudice is somewhat speculative, and the respondents have had from February 2006 to locate and retain the required documents. In addition, the respondents were dealing with a grievance related to this situation from April 2005 and presumably took steps to retain any documentation at that time.

14Accordingly, the allegation that the men were placed in tool and die positions from November 18, 2004 to July 2005 will be considered by the Tribunal.

15The allegation that the applicant was reprised against in May 2005 and February 2006 as a result of filing internal human rights complaints fall within the one year period prior to the filing of the original complaint and will be considered by the Tribunal.

Request to Dismiss Under Section 45.1

16The respondents also asked the Tribunal to exercise its discretion under section 45.1 of the Code to dismiss the remaining allegations on the basis that they have been appropriately dealt with through the grievance and arbitration procedure.

17Section 45.1 of the Code provides as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

18The issue for this Tribunal is whether another proceeding has appropriately dealt with the substance of all or part of the Application, such that all or part of the Application should be dismissed.

19It is helpful to consider s. 45.1 in two parts: (1) whether there was another "proceeding" and (2) if so, whether it "appropriately dealt with" the substance of the Application.

20The applicant filed grievances with respect to the May 2005 and February 2006 discipline which were withdrawn by the union. She also filed a human rights internal complaint which was dismissed on October 16, 2005. I am not satisfied that a union's decision to withdraw a grievance means that the matter was appropriately dealt with. I am not satisfied that a joint union management committee proceeding resulting in a written decision is a proceeding within the meaning of section 45.1.

21I decline to exercise my discretion to dismiss the remaining allegations on the basis of section 45.1. The allegations described in paragraphs 14 and 15 above form the subject matter of the Application.

22If both parties indicate a desire to participate in mediation, within seven days of the date of this interim Decision, the Registrar-Transition will contact the parties to schedule a mediation. If not, the Application will proceed to hearing.