HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Josie Wallenius
Applicant
-and-
Ontario Nurses’ Association and Glen Oram
Respondents
DECISION
Adjudicator: David A. Wright
Indexed as: Wallenius v. Ontario Nurses’ Association
APPEARANCES
Josie Wallenius, Applicant ) Self-Represented
Ontario Nurses’ Association and ) Colin Johnson, Counsel
Glen Oram, Respondents )
INTRODUCTION
1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which was filed on May 5, 2010, and completed on June 28, 2010. A summary hearing was held on October 22, 2010, to address whether the Application should be dismissed for delay and whether the Application has a reasonable prospect of success.
DECISION
2The Application is dismissed for delay.
BACKGROUND
3The applicant alleges that the respondent union and its representative, the individual respondent, discriminated against the applicant with respect to membership in a trade union on the basis of age, contrary to s. 6 of the Code, and committed reprisals against her, contrary to s. 8 of the Code.
4The union pursued grievances on the applicant’s behalf against the Corporation of the City of Thunder Bay. The applicant alleges that the grievances were settled under duress. The applicant also alleges that the manner in which the respondents represented her was tainted by ageism.
5The grievances were settled on January 29, 2009. The agreement, comprised of many terms, included a resignation from employment by the applicant, an undertaking that the resignation would not be subject of any human rights claims, and a statement that the applicant had been fairly represented by the union.
6The agreement also included a term that the employer would write a letter to College of Nurses of Ontario stating that the employer had discontinued its investigation regarding the applicant’s competence as a result of her resignation and retirement. The respondents have provided a copy of a letter to this effect dated February 9, 2009. However, the applicant alleges it was not sent, on the basis of a conversation with a person at the College of Nurses. The College of Nurses concluded its inquiry regarding the applicant on November 11, 2009, and sent her a letter to this effect on November 12, 2009.
TRIBUNAL PROCESS
7On July 12, 2010, the Tribunal issued a Case Assessment Direction (“CAD”) directing, on its own initiative, that a half-day summary hearing would be held by teleconference pursuant to Rule 19A.1 of the Rules of Procedure, on the question of whether the Application has a reasonable prospect of success. The Application was delivered to the respondents and two affected parties with the CAD. The CAD directed that the respondents need not file a Response prior to the summary hearing. All parties were directed to file any documents or cases they intended to rely upon no later than seven days prior to the summary hearing.
8The CAD directed the parties to be prepared to address three issues:
Whether the Application is outside the Tribunal’s jurisdiction because it was filed more than one year after the last event. Section 34(1)(a) of the Code provides that the Tribunal has no jurisdiction over an Application filed more than a year after the incident to which it relates, unless “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”. The parties shall be prepared to address the issues of whether there was good faith and substantial prejudice.
Whether this Application would constitute an abuse of process in light of the content of the settlement, including articles 4, 6, 7, 8, 14, 15 and/or 17.
Whether, in light of the allegations in the Application, the Application has a reasonable prospect of success.
DELAY
9Sections 34 (1) and (2) of the Code read as follows:
(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.
10The applicant alleges that she has filed within the one-year period provided for in s. 34. She alleges that her reception of the letter from the College of Nurses ending its inquiry was the last event in a series of incidents within the meaning of s. 34. She appears to allege that the union had some role in what she says was the failure of the employer to actually send the letter dated February 9, 2009, although she provides no details of how this is an allegation of discrimination by the union. She also appears to allege that she learned information from the response to a Law Society of Upper Canada complaint against a lawyer from whom she obtained independent legal advice that affects the limitation period in s. 34.
11In my view, the Application has been filed outside the one-year time period in s.34. The conclusion of the College’s investigation cannot reasonably be seen as an incident of alleged discrimination by the Union that would constitute part of a series of incidents within the meaning of s. 34. If the letter dated February 9, 2009 was not sent on the date that it appears to have been sent, in my view there is no reasonable basis on which the employer’s failure to fulfill its obligations under the grievance settlement can constitute an incident of age discrimination by the Union.
12I also do not accept that a response of the lawyer to a Law Society complaint can affect the timeliness of the Application under s. 34. The applicant alleges, among other things, that she learned from the lawyer’s response to the Law Society that the “union wished to compromise the case”. What I understand the lawyer’s letter to mean is that the union appeared to want to settle the case. There is nothing about such information that would affect the time limit for filing the Application under s. 34.
13The Application is about alleged age discrimination by the Union in representing the applicant in the grievance process, and that process concluded with the settlement on January 29, 2009. The Application was filed in May 2010, beyond the one-year period in s. 34 of the Code.
14The applicant alludes to good faith within the meaning of s. 34 by stating that she “was in a catatonic state” after the settlement and “felt abused by ageism”. In the absence of any medical documentation, such statements have not been found to be good faith within the meaning of s. 34(2). I also do not believe that any information she later learned constitutes good faith in filing a human rights Application against the Union more than one year after the