Matthews v. C.A.W. Local 1285, 2010 HRTO 178

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Phillip Matthews

Applicant

-and-

C.A.W. Local 1285, Leon Rideout and Whitey MacDonald

Respondents

INTERIM DECISION

Adjudicator: Alan Whyte

Date: January 26, 2010

Citation: 2010 HRTO 178

Indexed as: Matthews v. C.A.W. Local 1285

1In this Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”), the applicant alleges discrimination in employment on the basis of disability and age. However, in a separate document headed "Complaint", which is not part of the Application form or the accompanying supplemental form, the applicant has entered: "Social area (s): employment, union membership".

2The applicant is an employee of Chrysler at its Brampton plant, and the organizational respondent (“the union”) is the bargaining agent of the bargaining unit employees at that plant, including the applicant.

3The essence of the Application is that the union appoints people to its internal positions in the union in a discriminatory manner, so as to exclude disabled and older employees.

4The union filed a Request for Order during Proceedings (RFOP) which asserts that the Tribunal has no jurisdiction as the Application does not fall within any social area in the Code, points out that the applicant has not applied for a union position since 2004 and therefore the Application is out of time, and takes the position that the applicant has not demonstrated a prima facie case.

5The applicant filed a Response to the RFOP which relies on certain jurisprudence regarding the concept of "bona fide occupational requirement" and asserts that his Application is not out of time as union positions are posted on a regular basis and the last posting was November 2009. The applicant does not directly address the question of the Tribunal's jurisdiction.

6This is an appropriate case to schedule an oral hearing by conference call to receive submissions from the parties with respect to the three issues raised in the RFOP which are:

• Does the Application engage any of the social areas set out in the Code;

• Is the Application out of time under section 34(1) of the Code, and if so, does section 34(2) operate so as to provide jurisdiction to the Tribunal? With respect to the latter section, the onus is on the applicant to show that the delay in filing the Application was incurred in good faith, and the onus is on the respondents to show that substantial prejudice will be suffered by them as a result of the delay in filing the Application;

• Has the applicant set out a prima facie case in the Application.

7At the hearing, the parties must be prepared to address section 6 of the Code, which deals with membership in a vocational association, and its possible applicability to the facts of this case.

8If the parties have any documents or case law that they intend to rely on during the hearing, they are directed to provide those materials to the other, and to file them with the Tribunal, at least 14 days prior to the scheduled hearing date.

9I am not seized.