John Kelly v. CultureLink Settlement Services and Canadian Auto Workers Union, Local 40, 2010 HRTO 508

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Kelly

Applicant

-and-

CultureLink Settlement Services and Canadian Auto Workers Union, Local 40

Respondents

INTERIM DECISION

Adjudicator: Judith Keene

Date: March 5, 2010

Citation: 2010 HRTO 508

Indexed as: Kelly v. CultureLink Settlement Services

1This is an Interim Decision made in respect of an Application filed on March 16, 2009 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), alleging discrimination in employment by the respondents on the basis of disability. The Interim Decision addresses the employer’s Request for Order During Proceedings (RFOP) seeking dismissal of the Application on the basis of delay and the Union’s RFOP also seeking dismissal of the Application as against it. It will also provide directions to the parties with respect to case management issues going forward.

2The applicant alleges that CultureLink Settlement Services (“the employer”) breached the Code in failing to ensure that he received forms in a timely fashion for an application for long-term disability benefits, and in terminating his employment while he was on a disability-related leave after he had temporarily vacated a bargaining unit position for a secondment to a non-bargaining-unit. The Application also alleges discrimination on the basis of disability in respect of the applicant’s dealings with Canadian Auto Workers Union, Local 40 (“the Union”) after he received notice that his employment had been terminated. A hearing has been set for March 22-24, 2010.

3On March 1 2010, a conference call was held to deal with preliminary issues in this matter. As a result of the conference call, the March 22, 2010 hearing date has been adjourned. The hearing will proceed on the remaining two days.

DIRECTION IN RESPECT OF THE EMPLOYER’S RFOP

4A review of the documents filed in this case reveals that the last act by the employer that allegedly breached the Code appears to have been July 5, 2007, with notice to the applicant on July 9, 2007.

5The employer’s RFOP alleges that the applicant “was clearly aware of his rights at least one year before his Application to the Tribunal…and was at that time represented by counsel”. The RFOP goes on to claim significant prejudice, but gives no details of the alleged prejudice.

6The applicant’s counsel filed a full response to the employer’s RFOP. This material and other material filed by all the parties indicates that the applicant made efforts to pursue his rights, although the “representation by counsel” one year prior to the filing of this Application referred to in the RFOP appears to have been one instance of pro bono assistance. Efforts to pursue one's rights without filing an application have not, without more, been held by this Tribunal to justify a waiver of the one-year limitation period under section 34. However, applicant's counsel has also filed a full description of the applicant's medical condition during the relevant time, outlined how that condition would affect the applicant's ability to undertake legal proceedings and filed medical documentation in support of this argument. In my view, the applicant’s submissions may support a finding that the applicant has established “good faith” for the purpose of section 34(2).

7The second part of the test for a waiver of the one-year time limit under section 34(2) is “no substantial prejudice” to any person affected by the delay. The employer has not provided support for its assertion that it is substantially prejudiced. Documents on file, and the employer’s own admissions indicate that the employer was on notice of a possible action for wrongful dismissal on the part of the applicant, and that it replied to a solicitor's letter in that regard on April 17, 2008 without mention of prejudice.

8During the conference call, the parties agreed that the medical evidence of the applicant may be such that the employer’s position as to the delay might change. To this end, the applicant will be making efforts to ensure that the anticipated medical evidence is forwarded to the employer as soon as possible before the hearing dates.

THE UNION’S RFOP

9As against Union, the last alleged discrimination appears to have occurred, at the earliest, sometime in November or December of 2008. The allegations against the Union therefore fall within the one-year time limit established by s. 34 of the Code.

10During the conference call, the Union asserted that it had sent an RFOP requesting that the Application be dismissed as against the Union. Neither the Tribunal nor the applicant had received the RFOP. The Union undertook to send or re-send the RFOP, and the Tribunal has now received a copy of the RFOP dated January 8, 2010.

11The Union’s RFOP states that it wishes to be removed from the Application as “There was no discrimination on the Union’s part”. Presumably, this is a claim that no prima facie breach of the Code has been established as against the Union.

12It is only in very rare cases, in which the facts and issues are very simple and clear, and clearly outside the Tribunal’s jurisdiction to decide, that the Tribunal may dismiss on the ground that an application fails to disclose a breach of the Code, without giving an opportunity to the parties to make oral submissions.

13In Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025, the Tribunal reiterated that, while the onus is on the applicant to establish a prima facie case of discrimination, the threshold for establishing a prima facie case of discrimination is not high, discrimination is often not overt, the respondent may have knowledge of facts or possess evidence of discrimination that is not accessible to the applicant, and that in many, if not most cases, the burden will shift to the respondent to provide a non-discriminatory reason for its actions. The Tribunal set out the approach it uses where the matter is at such a preliminary stage that no evidence has been presented:

In such circumstances, the threshold test will be the same, but there will be no evidence before the Tribunal. It will be sufficient if the applicant raises allegations that, if accepted to be true, would be enough to establish a violation of the Code. See: Capocci v. York Catholic District School Board, 2009 HRTO 107, 2009 HRTO 107 at para. 20; Greenhorn v. 621509 Ontario Inc. (Belleville Dodge Chrysler Jeep), 2006 HRTO 22, 2006 HRTO 22, at paras. 21-22). (above, at para 6)

14The Application alleges that the Union breached the Code by not assisting with a grievance arising from an allegedly discriminatory firing. While the Application is not clear on this point, it also appears to allege a breach of the Code in the manner in which the Union dealt with the applicant. The first allegation, if proven, would amount to a prima facie breach of the Code, as might the second allegation.

15In support of its RFOP, the Union denies discrimination, but has asserted facts that generally agree with the applicant’s description of his dealings with the Union. The Union’s position appears to be that it had no duty to assist the applicant, as in its submission, the applicant was no longer a member of the bargaining unit. The Union cites a provision of its Collective Agreement with the employer that appears to deal with the retention of seniority rights. It is not clear on the material filed, what connection this provision has with the Union’s position that the applicant was no longer a member of the bargaining unit at the relevant time. In these circumstances, an argument that the Union did not breach the Code must be left for a hearing on the merits.

16The Union’s RFOP is therefore denied.

DIRECTIONS FOR HEARING

17My decision in respect of the Union’s RFOP means that, unless the parties settle, the applicant is entitled to a hearing on the merits of the allegations against the Union. I have not made a decision in respect of the employer’s RFOP. In the circumstances, if the Application also goes forward as against the employer, the efficiency would seem to indicate that the two should not be the subject of separate hearings.

18In the circumstances, the Tribunal will hear argument on the issues raised by the employer on March 23, and if necessary, March 24, 2010. The parties are directed to attend prepared with dates on which they can be available for any subsequent hearing days that might involve the employer, and for the hearing on the merits as against the Union.

19At the hearing, in order to provide for the fair, just and expeditious resolution of the matter, the Tribunal may make further procedural directions under Rule 1.7 of the Tribunal’s Rules of Procedure.