Bruce v. Ontario Secondary School Teachers’ Federation, 2010 HRTO 261

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kenneth Bruce

Applicant

-and-

Ontario Secondary School Teachers’ Federation, District 9, Sandra Sahli, Pat Pajot and Geoff Delaplanque

Respondents

AND B E T W E E N:

Kenneth Bruce

Applicant

-and-

Greater Essex County District School Board, Mary Gallagher, Heather Liffiton, Bob Garrett, Diane Beck and Dawn Garvey

Respondents

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: Laverne Jacobs

Date: February 4, 2010

Citation: 2010 HRTO 261

Indexed as: Bruce v. Ontario Secondary School Teachers’ Federation

APPEARANCES BY

Kenneth Bruce, Applicant ) Self-represented

Ontario Secondary School Teachers’ Federation, ) District 9, Sandra Sahli, Pat Pajot, ) Simon Blackstone, Counsel and Geoff Delaplanque, Respondents )

Greater Essex County District School Board, ) Mary Gallagher, Heather Liffiton, ) Suzanne M. Porter, Bob Garrett and Diane Beck, Respondents ) Counsel

Dawn Garvey, Respondent ) Ian Werker, Counsel

Introduction

1The applicant, Kenneth Bruce, filed two Applications with the Human Rights Tribunal of Ontario (the "Tribunal") on November 13, 2008 under subsection 53(3) of the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”). An earlier Interim Decision, 2009 HRTO 38, directed that a Case Resolution Conference (“hearing”) be held in order to determine these preliminary matters.

2The hearing was held on April 8, 2009.

3This Case Resolution Conference Decision deals with the question of whether the Applications can be dismissed for delay and/or because another proceeding appropriately dealt with the human rights issues.

4At the beginning of the hearing, the applicant requested an adjournment on the grounds that his representative, a friend, had taken ill the day before. After hearing all the parties, I ruled that the hearing should proceed. The applicant had not had any representation listed in the file in the past. As well, counsel for two of the parties had traveled to Windsor from Toronto and to adjourn the proceedings and start again on another date, requiring them to return to Windsor would cause prejudice that outweighed any prejudice to the applicant. The hearing proceeded as scheduled.

Background to the Applications

5The applicant was employed by the respondent, Greater Essex County District School Board (the “Board”) as a Casual Replacement Worker-Temporary Replacement Worker in the classification of Educational Assistant-Special Needs Students. He was a member of the Educational Support Staff bargaining unit. The individual respondent, Dawn Garvey, was a teacher whose alleged actions are at the centre of his human rights complaint. The individual respondents, Mary Gallagher, Heather Liffiton, Bob Garrett and Diane Beck were employees of the Board at the time of the applicant's employment.

6The respondent, Ontario Secondary School Teachers’ Federation, District 9 (the “union”) is the statutory bargaining agent for several units of employees at the Board. The three individual respondents, Sandra Sahli, Pat Pajot and Geoff Delaplanque, were officials of the Union who represented the applicant in his dealings with his employer immediately before and after his termination.

7The applicant’s employment was terminated by the Board on October 24, 2003. The union filed a grievance with respect to the termination but the grievance was ultimately determined to be inarbitrable by the Divisional Court in a decision dated October 25, 2005. On November 7, 2005, the union sought leave to appeal the Divisional Court decision to the Ontario Court of Appeal. However, leave to appeal was denied by the Court of Appeal on January 30, 2006.

8On March 3, 2006, the applicant filed a duty of fair representation complaint against the union with the Ontario Labour Relations Board (the “OLRB”). The OLRB complaint was dismissed on December 15, 2006 and the applicant’s request for reconsideration refused on March 7, 2007.

9The applicant filed a complaint with the Ontario Human Rights Commission on April 24, 2007 alleging sexual solicitation and reprisal. On the human rights complaint form, the applicant indicated that the last incident occurred on October 24, 2003.

Issues

10The issues in this case are three-fold:

1. Should the applicant’s allegations against the union be dismissed because they have been dealt with in another forum?

2. If not, should the applicant’s allegations against the union be dismissed for delay?

3. Should the applicant’s allegations against the rest of the respondents be dismissed for delay?

ANALYSIS

11The union argued that this matter has been dealt with by the OLRB and should be dismissed under s. 45.1 of the Code. These respondents argued, in the alternative, that undue delay on the part of the applicant has caused prejudice, requiring dismissal under section 34 of the Code.

12Counsel for the Board agreed with the union that the OLRB proceedings dealt with the substance of the application in file T-0476-08. However, counsel for the Board submitted that the OLRB proceedings did not address the sexual harassment allegations raised in the Application. They joined with the union and the rest of the respondents in arguing, however, that there has been undue delay causing prejudice and that both Applications should be dismissed under section 34.

13The applicant explained that he had not filed his complaint with the Human Rights Commission until April 24, 2007 because he had been advised by the Ontario Human Rights Commission, the OLRB and by the union not to pursue his human rights complaint while the union took legal proceedings on his behalf. However, there is no evidence to support this assertion. Secondly, the applicant argued that the matter is ongoing on the basis that following his termination he has been subjected to a line of reprisals which flow from his dismissal and that this series of reprisals has continued up to February 2, 2009.

14The applicant alleges these reprisals include:

• the school board returning, unopened, a package containing a copy of his application to the Tribunal on January 30, 2009;

• being asked by letter dated February 2, 2009, not to enter the premises of Western Secondary School (the school where he had worked).

• being asked by the police not to contact the alleged harasser shortly thereafter.

15The applicant characterized these actions as reprisals for launching a complaint before the Ontario Human Rights Commission and as incidents targeted to prevent him from exercising his right to participate in a human rights process under the Code. The actions in question occurred in 2009 when the applicant attempted to effect service of documents relating to these Applications.

DECISION

16While I agree that the sexual harassment allegations did not form part of the proceedings before the arbitrator or the OLRB, I am not satisfied that the applicant established that his nearly four year delay in bringing his Application was made in good faith and would not cause substantial prejudice to other parties in the proceeding within the meaning of section 34 of the Code. For the reasons which follow, the Applications are dismissed.

17As the issue of delay is common to all respondents, I will deal with this issue first. Section 34 of the Code states that an applicant must file an application to the Tribunal within one year after the last incident to which the application relates. The Tribunal may accept a late application if satisfied that the delay was incurred in good faith and that no prejudice will be suffered by anyone affected by the delay. Section 34 of the Code provides:

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.

18As this is a transition matter, the one-year time frame relates to the filing of the initial application at the Ontario Human Rights Commission, as opposed to the date when the file was opened at the Tribunal after its abandonment at the Commission, pursuant to ss. 53(3) of the Code.

19The Tribunal has consistently held that an applicant must provide a reasonable explanation for why he or she did not pursue his or her rights under the Code in a timely manner. It is only in this way that the Tribunal can conclude whether there have been circumstances that suggest that the delay was incurred in good faith. See Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424.

20Counsel for all the respondents argued that there is no explanation for the delay between the date of the termination of the applicant’s employment in 2003 and the filing of the human rights complaint almost four years later.

21The applicant has not provided a reasonable explanation for his delay in filing his complaint. Moreover, his oral and written submissions indicate that he was aware that the grievance being brought on his behalf did not address the sexual harassment allegations that formed the basis of his human rights complaint. In these circumstances, it is difficult to accept that the applicant was acting in good faith by not pursuing or even inquiring about his human rights claim at the Commission at an earlier date. Finally, the passage of time from the date of the last incident, being his termination on October 24, 2003 will cause considerable prejudice to the parties and witnesses who would be required to present their case and give testimony in response to the allegations.

22I am also of the opinion that the applicant’s contention that there have been continuing reprisals does not constitute a reasonable explanation for filing his complaint at the Ontario Human Rights Commission in 2007, almost four years after his employment was terminated. The question at issue is whether there was a series of incidents between October 24, 2003 and April 24, 2007 when the human rights complaint was filed at the Commission which delayed the applicant from filing his complaint within the one-year limit. There is no evidence that there were. The incidents the applicant now seeks to rely on to explain the delay between 2004 and 2007 all occurred in 2009. They cannot be used as a justification for late filing.

23As my finding on delay is sufficient to dispose of the matter, I do not need to address the arguments under section 45.1 of the Code.

24The Applications are dismissed. I thank the parties for their helpful submissions and oral arguments.