Thomas Thorogood v. International Brotherhood of Electrical Workers, Local 120, 2010 HRTO 786

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Thomas Thorogood

Applicant

-and-

International Brotherhood of Electrical Workers, Local 120

Respondent

INTERIM DECISION

Adjudicator: Sherry Liang

Date: April 9, 2010

Citation: 2010 HRTO 786

Indexed as: Thorogood v. International Brotherhood of Electrical Workers, Local 120

1This is an Application filed on January 29, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”).

2The applicant is a retired electrician and member of the respondent the International Brotherhood of Electrical Workers, Local 120 (the Local). He alleges that the Local discriminated against him on the ground of age, by denying him benefits under a retirement incentive program, and then refusing a full refund of his contributions into the program. The applicant also alleges a reprisal or threat of reprisal under the Code.

3The Local raises a number of defences to the Application, including that the Application is untimely. This Interim Decision deals with the issue of delay in bringing the Application and makes further directions for the hearing. I find, for the reasons below, that the allegations about that the denial of retirement incentive benefits and refusal of a refund of contributions cannot proceed. However, the applicant’s allegation that the Local delayed for a year and half in sending him a partial return of his contributions, and that this was a reprisal, will proceed to be heard.

BACKGROUND

4The Local is a trade union representing electricians in the construction industry in and around London, Ontario. It is affiliated with the International Brotherhood of Electrical Workers and the IBEW Construction Council of Ontario, who are parties to a province-wide collective agreement.

5The applicant has been a member of the Local since 1959. It appears that although the applicant worked as an electrician for many years, he also worked as a contractor and was considered an employer covered by the collective agreement for about 8 years just prior to 2000.

6In 1999, the applicant turned sixty years of age. In 2000, he ceased performing work as an employer in the electrical industry and began to perform work as an electrician, referred to work by the Local. He was paid under the terms of the collective agreement and remittances were on his behalf by his employer to the Local in respect of dues and benefits.

7In April 2004, the applicant advised the Local that he was making an application for benefits under the Retirement Incentive Program (the RIP). The RIP is a special program established in 1995 and negotiated into the collective agreement. Under the terms of the agreement, all employees contribute to the RIP, and the union collects the contributions and pays out the benefits. Its purpose is to encourage electricians to take early retirement, to open up work for younger members.

8The applicant’s application for benefits under the RIP was denied in August 2004. The applicant objected to the denial of benefits, but his request to the Local for reconsideration of his application was turned down. He continued to work under the collective agreement until 2006. In October 2006, he advised the union that he was retiring from the Local that month, and requested a return of his contributions into the health and welfare funds.

9In January 2007, he reiterated his request that the money he contributed to the RIP be returned to him. In February 2007, the administrator of the Local’s retirement program responded by advising him that he could not have a return of all contributions; however, the Local would be returning contributions made after he turned 65 years, amounting to $910.89. The applicant was told that he would be receiving the money in May 2007, one year after he reached age 65.

10In April 2007, the applicant filed an application with the Ontario Labour Relations Board (the OLRB), alleging that the respondent failed in its duties towards him under, among other things, section 74 of the Labour Relations Act, 1995 (LRA).

11By decision dated December 14, 2007, the OLRB dismissed the application under the LRA on the basis that the Board did not have jurisdiction over the dispute, as it did not arise out of the manner in which the union represented the applicant in his employment relationship with an employer.

12The applicant states that he then contacted the head office of the International Brotherhood of Electrical Workers for assistance. Included in the correspondence is a letter from the International Vice-President dated April 2008, stating that an International Representative would be investigating the applicant’s allegations against his Local.

13The applicant states that he did not receive his payment of $910.89 until December 2008. Included in his material is email correspondence from the Local’s retirement program administrator in July 2008 suggesting that he would receive his cheque if he wrote a letter “dismissing the application to the board” and “accepted their position”.

14The applicant alleges that the delay in sending him the cheque could be construed as a reprisal.

DECISION

15Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within a one-year time limit. It also gives the Tribunal discretion to accept late applications in certain circumstances:

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.

16Under section 34, the Tribunal has no jurisdiction to deal with a complaint filed more than a year after the incident, or the last incident in a series, unless it is satisfied that the circumstances in subsection 34(2) exist.

17The Tribunal has explained that “good faith” does not simply mean the absence of “bad faith”, and that the one-year limitation period is consistent with the policy objective that human rights claims be dealt with expeditiously:

In my view, where an applicant seeks to establish that a delay in filing an application was “incurred” in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. … The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.

Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at para 24.

18In order to satisfy the Tribunal that the delay was incurred in good faith, the applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.

19The Tribunal has stated that waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application. Further, although ignorance of one’s rights may in some circumstances amount to good faith, the applicant must also establish that he or she had no reason to make inquiries about his or her rights.

20In this Application, the applicant alleges that the denial of RIP benefits was discriminatory on the basis of age. This is a matter he has known about since August 2004, when the Local told the applicant that his application for RIP benefits was denied. He also alleges that the refusal to refund all of his contributions is also discriminatory. This was a matter that crystallized at the very latest by February 2007. This Application was not filed until January 2009, approximately two to five years after the actions alleged to be discriminatory.

21The applicant states that as an “average worker”, he had very little knowledge of the correct path to take, and could only start at one point and keep going until he found the proper procedure. He submits that he started by writing letters to the Local, and this was a time consuming process. He states that he contacted various government offices and agencies, such as his Member of Parliament, to determine what action he could take. He states that he thought the Department of Labour (by which I understand him to mean the OLRB) was the correct forum. He also states that he phoned some lawyers for assistance but the cost was too high. He states that if he had known what he knows now, he would have come to the Tribunal in the first place.

22The applicant also states that in November 2007, he received a letter from the OLRB suggesting that his remedy lay with the Superior Court of Ontario or the Pension Commission of Ontario, and that when he talked to the Pension Commission, they suggested that he take the matter to the Ontario Human Rights Commission.

23The Tribunal appreciates that it may take applicants some time to investigate and determine the correct forum through which to have their dispute aired. But the one-year time limit for filing applications would have little meaning if an applicant could spend an indefinite length of time pursuing other avenues before bringing an application to the Tribunal. I am not convinced that the applicant’s lack of sophistication is a reasonable explanation for the delay of between two and five years in bringing these issues to the Tribunal. If he believed that the actions of the Local starting in 2004 were discriminatory, he had an obligation to make inquiries about the proper forum to which to bring his complaint. Further, although he was pursuing other avenues during the time in question, it was not reasonable to allow those to continue at length, and in sequence, before then exploring the possibility of an application to the Tribunal.

24Although the applicant appears to point to his receipt of the cheque in December 2008 as somehow crystallizing his complaint of discrimination, he knew well before this of the Local’s position that he was entitled to only a partial refund of his contributions. The receipt of the cheque did not add anything to the facts on which he bases his claim about the denial of the RIP benefits or denial of a full refund. I therefore find these aspects of the Application to be untimely, and the applicant cannot pursue them.

25The applicant has now, however, particularized his claim of reprisal, which had not been fully particularized in his Application. Part of the reprisal claim, being based on conversations with the Local shortly after the applicant applied for the benefits, is also untimely. It is not as clear that the reprisal claim arising out of the late delivery of the cheque in December 2008 is untimely. I make no determination at this stage on whether the applicant can establish reasons under section 34(2) for the Tribunal to accept this part of his Application.

26The Application is scheduled for a hearing starting on April 28. Based on my reasons above, the applicant cannot pursue his claim of age discrimination in the denial of benefits under the RIP or the refusal to provide a full refund of contributions. These allegations are untimely. The allegations that the Local engaged in reprisals or threat of reprisals during conversations between the applicant and the Local’s officials are also untimely.

27However, the Tribunal will hear the applicant’s claim that the delay in providing him his partial refund of contributions between May 2007 and December 2008 was a reprisal under the Code. The Tribunal will reserve its ruling on whether this allegation is untimely, until hearing the evidence and submissions on all aspects of this issue.

28Since this aspect of the Application has only recently been particularized, it is appropriate to provide the respondent with an opportunity to provide a written response to this allegation. The respondent is therefore directed, by April 19, 2010, to provide a response to the allegation that its delay in providing the cheque that was ultimately delivered in December 2008 was a reprisal under the Code. The respondent should also indicate whether it takes the position that this allegation is untimely under section 34(1).

29On or before April 19, 2010, the applicant and the respondent are directed to provide each other with any documents and witness statements relevant to the allegation of reprisal, if they have not already been disclosed.

30Because of my determinations above, it is unnecessary to rule on the applicant’s Request for an Order During Proceedings, as it deals with disclosure of documents arguably relevant to allegations that have been dismissed.