Eren v. Chrysler Canada Inc., 2011 HRTO 1468

Human Rights Tribunal of Ontario

B E T W E E N:

Jemal Eren Applicant

-and-

Chrysler Canada Inc. and CAW Local 444 Respondents

DECISION

Adjudicator: Sherry Liang Date: August 5, 2011 Citation: 2011 HRTO 1468 Indexed as: Eren v. Chrysler Canada Inc.

1This is an Application filed on March 7, 2011, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2By Interim Decision dated May 18, 2011, I directed the parties to provide submissions on whether this Application should be dismissed for delay. I have reviewed the submissions of the applicant, the respondent Chrysler Canada Inc. (“Chrysler”) and the respondent CAW Local 444 (“CAW”). For the reasons below, I find that this Application has been made beyond the time limits in the Code and the applicant has not satisfied me that the delay was incurred in good faith.

BACKGROUND

3The Application alleges discrimination in employment on the ground of disability.

4The applicant was an employee of Chrysler until November 2007, represented in his employment relations by the CAW.

5The applicant states that on August 17, 2007, he was injured in a motor vehicle accident. At the time, he was working under the terms of a “last chance” agreement. The applicant had been previously terminated from employment and re-instated to employment under that agreement.

6He states that after the accident, he was not able to comply with the requirements of the last chance agreement, and his employment was once again terminated, in November 2007. His union filed a grievance, which was withdrawn in November 2008. The applicant alleges that he did not receive a copy of the union’s letter confirming the withdrawal of the grievance, and only received it in 2009 after he contacted a lawyer due to concerns about the way the union was handling his grievance. However, based on correspondence from his lawyer dated January 28, 2009, it appears that the applicant knew before the date of that letter that the grievance was being withdrawn.

7Despite this, the applicant asserts that he met with the union in February or March of 2009, and after that believed that the union was still actively pursuing his return to work through the grievance procedure.

8However, he received a letter from the union on December 17, 2009, confirming that that his grievance had been withdrawn at the fourth step of the grievance procedure in November 2008. In submissions from the applicant’s lawyer, it is alleged that the applicant “was confused” when he learned that the grievance was withdrawn by the union, without his knowledge. It is stated that the applicant contacted Chrysler in September 2010 and “[u]ntil September 2010, he did not truly know that the grievance was now considered by both the Respondent Employer and the Respondent Union, to be permanently inactive.”

9His lawyer wrote to the union on December 7, 2010, seeking further information about the status of his grievance, to which the union responded on December 13, 2010, once again confirming the withdrawal of the grievance in November 2008. The letter indicates that the union made efforts to re-instate the grievance, up to December 2009, but was unable to. In the Application, the applicant states that the “date of the last event” was December 18, 2010.

10Finally, the applicant also asserts that based on his experience, he believed that it was not uncommon for the union to successfully negotiate a return to work for an employee after being terminated, even if no grievance was filed at the time or filed and withdrawn.

11It should be noted that many of the facts alleged by the applicant are addressed by the union and Chrysler and some are specifically denied. The union, for instance, states that the applicant’s discharge was based on absences from April and June of 2007. It states that it determined that there would be little chance of success in pursuing the grievance to arbitration given the applicant’s past poor record. It also states that it sent the applicant a letter in December of 2008, confirming withdrawal of his grievance. The union confirms that it did try to reinstate the grievance in November 2009, but was unsuccessful in doing so and advised the applicant of this in December 2009.

DELAY UNDER THE CODE

12Section 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.

13Under 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.

14As stated in Miller v. Prudential Real Estate, 2009 HRTO 1241, in order for an applicant 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 for filing an application 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 seek to pursue a human rights claim.

15In 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.

16The Tribunal has stated that efforts to pursue one’s rights without filing an Application do not, without more, justify a waiver of the one-year limitation period under section 34(2): Gagne v. Maximum Mining, 2010 HRTO 689.

17As indicated in my Interim Decision, both respondents have raised the issue of whether the Application is untimely. I directed the applicant to provide submissions on why December 18, 2010, which appears to be the date of receipt of the last correspondence from the union, amounts to the date of a timely “incident” within the meaning of section 34(1).

18In reviewing the allegations, it is apparent that the applicant alleges that his termination by Chrysler in November 2007 was discriminatory. He seeks to be reinstated to the seniority list and compensated for lost income, among other things. It appears that he also alleges that the union discriminated him in the manner in which it handled his grievance, which includes the fact that it decided to withdraw his grievance in November 2008.

19The threshold question in applying section 34 to the circumstances here is what constitutes the “incident” or “incidents” to which the Application relates. I find that the incidents of discrimination raised by the applicant relate to his termination in November 2007 and the withdrawal of his grievance by the union in November 2008. It may also encompass the union’s efforts to reinstate his grievance or refusal to pursue the reinstatement of his grievance following November 2008.

20With respect to Chrysler, the Application was filed approximately three-and-a-half years (from November 2007 to March 2011) after the date of the applicant’s termination from employment. Any events following November 2007 cannot be considered part of a “series of incidents” with respect to Chrysler, as they relate to the interaction between the applicant and the union, none of which are alleged to be acts of discrimination by Chrysler.

21I also find that the applicant has not provided a reasonable explanation for the delay in bringing his Application against Chrysler. The applicant essentially asserts that he believed that he could be reinstated through a grievance process. Even if the applicant may have believed for part of that three-and-a-half years that the union was pursuing a grievance on his behalf, and even if he believed those efforts had the potential to reverse the termination, these factors do not justify a delay of that length. If it was not clear by December 2008, it was certainly clear by December 2009 that there was no hope of reinstating the grievance. It cannot be said that the applicant had no reason to inquire about or consider an application under the Code well before the date this Application was filed.

22In his submissions, counsel for the applicant asserts that the onus is on the respondents to state what is the last date for filing a timely application, failing which it is unfair to the applicant to have to show cause under section 34(1). I do not accept this submission. In my Interim Decision, I directed submissions from all parties on the issue of the timeliness of the Application, including an explanation from the applicant about why the Application was not filed earlier. I base my decision on the material and submissions before me.

23Having regard to section 34(1), I therefore find the Application against Chrysler to be untimely.

24I also find that the Application against the union is untimely, and the applicant has not provided a reasonable explanation for the delay in filing it. I conclude that the correspondence in December 2010 cannot be relied upon as an “incident” to which the Application relates. For the purposes of section 34(1), an “incident” must be an event upon which an allegation of a violation of the Code is based. There is no allegation that anything said or done by the union in this correspondence was discriminatory. The correspondence was, at its highest, a continuation of the applicant’s efforts to obtain more information from the union about the withdrawal of his grievance, an event which had occurred in 2008. It cannot be said that the correspondence in December 2010 amounted to an independent act of discrimination, or part of a “series of incidents” within the meaning of section 34(1). See Mafinezam v. University of Toronto, 2010 HRTO 1495.

25Although not particularized, the applicant appears to suggest that some of the union’s actions in handling his grievance were discriminatory. Assuming that to be the case, the pivotal event would appear to be the decision in November 2008 to withdraw his grievance, of which the applicant has been aware since at least January 2009. There is also the possibility that the applicant alleges that the union’s failure to reinstate the grievance following the withdrawal was discriminatory. If this is the case, the correspondence is clear that as of December 2009, the union considered the matter closed. The letters following that date, as I have stated, cannot be considered an incident of alleged discrimination but amounts, at the most, to an effort to revisit or revive earlier events.

26Although I have doubts about whether even the correspondence of December 2009 could be considered an incident of alleged discrimination, assuming that it can be, there is still a delay of more than a year until the Application was filed in March 2011.

27Further, the applicant has not provided a reasonable explanation for why he did not file the Application concerning the union’s handling of his grievance within the time required under the Code. Again, his explanation appears to be that he believed his grievance was still viable. He asserts that until September 2010 he “did not truly know” that his grievance was permanently inactive. On the material before me, there is nothing that provides any basis for such a belief. He had information well before that, establishing that the union had withdrawn his grievance in 2008 and did not intend to pursue it further. He had also retained legal counsel by January 2009, due to his concerns about his grievance. If he believed that the union discriminated against him in the manner in which it handled his grievance, he could have filed this Application in a timely manner.

28In the result, the whole of the Application is untimely and it is dismissed.