Dindilall Chanderpaul v. Labourers’ International Union of North America, Local 183 and Tony Dionisio, 2010 HRTO 2062

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dindilall Chanderpaul Applicant

-and-

Labourers’ International Union of North America, Local 183 and Tony Dionisio Respondents

DECISION

Adjudicator: Mark Hart

Date: October 8, 2010

Citation: 2010 HRTO 2062

Indexed as: Chanderpaul v. Labourers’ International Union of North America

APPEARANCES BY

Dindilall Chanderpaul, Applicant ) Charles Amissah-Ocran, ) Counsel

Labourers’ International Union ) Robert Gibson and of North America, Local 183, ) Virginia Nelder, Counsel Respondent )

Tony Dionisio, Respondent ) Self-represented

ii

1This Application was received by the Tribunal on June 26, 2009 and again on June 30, 2009. The original complaint was filed with the Ontario Human Rights Commission on May 29, 2004.

2A preliminary hearing was held in this matter on July 27, 2010 to hear oral submissions from the parties regarding the respondents’ request for dismissal of all or part of the Application for delay and/or for failure to make out a prima facie case of a violation of s. 6 of the Code.

Delay

3The applicant’s complaint alleges that he experienced discrimination in respect of his membership in a vocational association because of his race, colour and ethnic origin, contrary to ss. 6 and 9 of the Code. The applicant is a member of the respondent, Labourers’ International Union of North America, Local 183 (“Local 183”). His complaint first alleges that he was threatened for attempting to express himself at Local 183 meetings, while union members of other racial backgrounds were listened to and treated respectfully (para. (b)). The complaint provides four specific incidents to support this allegation, the first three of which relate to meetings held in 1999 and the fourth which relates to a meeting on October 19, 2003. The applicant next alleges that in November 2003, he ran for municipal election in Mississauga and was denied a donation by Local 183, while the union did make donations to other candidates of European origin (para. (c)). Finally, the applicant alleges that on a number of occasions, he complained to the head office of the respondent union, but was advised that he must handle the situation on his own (para. (d)). No dates are provided in the complaint as to when this is alleged to have occurred.

4By Interim Decision, 2009 HRTO 2108, dated December 4, 2009, the applicant was directed to provide a written explanation for his delay in raising the 1999 allegations, and was further directed to file written submissions explaining how paragraphs (c) and (d) in the complaint amount to discrimination by a vocational association and Local 183 in particular.

5In response, the Tribunal received a letter from applicant’s counsel dated December 21, 2009. While the letter states that counsel was requesting additional time to provide the written explanation required of the applicant, no further written submissions were filed with the Tribunal prior to the preliminary hearing. This letter does provide submissions regarding paragraph (c) of the complaint (which will be addressed below) and provides particulars in support of the allegation in paragraph (d) of the complaint. The particulars provided in relation to paragraph (d) relate to events from 1997 and 1999.

6There is no question that the allegation regarding the alleged threat at the October 19, 2003 meeting and the denial of a donation in November 2003 fall within the one year period prior to the filing of the complaint, which this Tribunal has determined is the relevant period under s. 34(1) of the Code when dealing with an application filed under the Code’s transitional provisions: see Taylor-Wright v. York University, 2010 HRTO 312.

7With regard to the remaining allegations, the first question is whether the allegations from 1997 and 1999 form part of a “series of incidents” that extends to and includes the allegations from October and November 2003. In this regard, I accept and agree with the reasoning in Chintaman v. Toronto District School Board, 2009 HRTO 1225, that “a gap of more than one year between incidents in a series would in most cases interrupt the series” (see para. 11). In the instant case, there is a gap of over four years from the date of the last untimely incident in May 1999 and the timely allegations made in October and November 2003. In my view, this extensive gap in time is more than sufficient to prevent the untimely 1997 and 1999 allegations from forming part of a series of incidents that includes the 2003 allegations.

8Having found that the untimely 1997 and 1999 allegations do not form part of a series of incidents that includes the timely 2003 allegations, I next need to consider s. 34(2) of the Code, which states that a person may nonetheless apply to the Tribunal after the expiry of the one year time limit, 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.

9In relation to the requirement to establish that the delay was incurred in good faith, this Tribunal has held that the onus is on the applicant to provide some reasonable explanation for the delay: Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339.

10As stated above, the applicant did not file any written submissions to provide an explanation for his delay in raising the 1997 and 1999 allegations. At the hearing, I expressly invited the applicant to make oral submissions to provide an explanation for the delay. In response, the applicant stated that he continued to inform the Commission as new incidents arose. Whether or not this is true, this does not provide an explanation for the over four year delay in filing a complaint. The applicant also stated that at a certain point, he left the union and stopped seeking employment through the union, and then the more recent incidents occurred after he started re-attending Local 183 meetings. Once again, whether or not this is true, this still does not explain the applicant’s failure to file a complaint regarding the 1997 and 1999 allegations. This lack of explanation is compounded by the fact that the applicant did file a number of human rights complaints against a variety of entities, including Local 183, in 1999 and 2000, at least one of which was dismissed by the Commission for delay. Accordingly, the applicant was well aware both of his ability to file a human rights complaint and of the need to do so in a timely manner.

11The applicant further submits that the Commission had already found that his delay in filing his complaint in 2004 was incurred in good faith, and he pointed to a paragraph to this effect from a Case Analysis Report prepared by a Commission staff member. While this may have been the view of the Commission staff member, that view does not bind this Tribunal, which makes decisions in accordance with the proper interpretation of the current provisions of the Code, including s. 34(1) and (2). Based upon the Tribunal’s interpretation of the meaning of “good faith” in s. 34(2), as set out above, I find that the applicant has not provided a reasonable explanation for his delay in raising the 1997 and 1999 allegations and hence I find that the delay in raising these allegations was not incurred in good faith within the meaning of s. 34(2) of the Code.

12As both good faith and a lack of substantial prejudice must be established in order to justify a delay beyond the one year period, it is not necessary for me to consider the question of whether any substantial prejudice would be caused to the respondent.

13As a result, the allegations made in paragraphs (b)(i), (ii) and (iii) and in paragraph (d) of the complaint are dismissed for delay.

Prima Facie Case

14With regard to the remaining two allegations, the respondents take the position that these allegations fail to make out a prima facie case of discrimination contrary to ss. 6 and 9 of the Code.

15With regard to the allegation in paragraph (b)(iv) of the complaint, the respondents state that while the applicant has alleged that he received a “death threat” at the October 19, 2003 monthly members meeting after he tried to express his opinions, there is no allegation that this alleged threat was related to a ground of discrimination prohibited by the Code and in particular the grounds of race, colour and ethnic origin cited by the applicant.

16At the preliminary hearing, I asked the applicant to respond to this argument. He stated that another member, whom the applicant identified for the first time, had said “I’ll break your fucking bones”. The applicant referred to a prior incident in alleging that Local 183’s business manager had created an environment where one member could beat up another member, and if the member got charged, the union would “pick up the tab” by paying for their criminal defence. The applicant stated that he was not allowed to express himself freely, and submitted that this was a violation of his human right to express himself freely.

17Whether or not the applicant has a right to express himself freely, this is not a right that is covered under the Code in the absence of any connection to a prohibited ground of discrimination. On the basis of the oral submissions made to me by the applicant, I cannot discern any connection between the threat that he alleges was made and the grounds of race, colour or ethnic origin cited in his complaint. On this basis, I find that the allegation in paragraph (b)(iv) of the complaint does not support a prima facie case of a violation of the Code.

18At the preliminary hearing, the applicant alleged for the first time that another union member had called him a “Paki” at the October 19, 2003 meeting. The applicant stated that he had witnesses, who were in attendance at the preliminary hearing, who would testify that this was said. The problem with this allegation is that it is not raised in the complaint, which under s. 53 of the Code forms the subject-matter of a transitional application. The allegation with respect to the October 19, 2003 meeting refers only to an alleged “death threat” and not to any racial slur alleged to have been made by an entirely different person. Accordingly, I find that this allegation does not form part of the subject-matter of the complaint filed by the applicant, and so is not within the scope of this Application.

19With regard to the allegation in paragraph (c) of the complaint, the respondents state that there is no allegation that donations were given to other union members while denied to the applicant. Rather, the applicant was running for the position of Mayor of Mississauga, and the union declined to make a donation to him because it was supporting the incumbent, Hazel McCallion. The respondents state that the making of a political contribution to a non-union member running for Mayor while denying a contribution to a union member running for the same position is comparing apples to oranges, and cannot constitute discrimination in respect of membership in a vocational association within the meaning of s. 6 of the Code.

20The applicant does not dispute the basic facts relating to this allegation. However, he states that other union members did request that political contributions be made to certain candidates who were non-union members, and these requests were granted by Local 183.

21Whether or not that is the case, I fail to see how Local 183’s decision to make a political contribution to the incumbent Mayor of Mississauga and to deny to make a donation to the applicant who was running for the very same position can amount to discrimination in respect of membership in a vocational association within the meaning of s. 6 of the Code. The applicant conceded at the preliminary hearing that no other union members requested or received political donations from Local 183 to run for Mayor of Mississauga. In my view, the fact that a donation was made by Local 183 to a non-union member and denied to a member does not amount to discrimination in respect to membership in a vocational association.

22Accordingly, I find that the applicant’s allegation in paragraph (c) of the complaint does not support a prima facie case of a violation of s. 6 of the Code.

23As all of the allegations in the applicant’s complaint are dismissed either for delay or for failure to make out a prima facie case, I dismiss the Application in its entirety.