HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Donald Blais Applicant
-and-
Canadian Union of Public Employees Local 3902, The Governing Council of the University of Toronto, James Dicenso and John Kloppenborg Respondents
DECISION
Adjudicator: Sherry Liang Date: November 21, 2011 Citation: 2011 HRTO 2113 Indexed as: Blais v. Canadian Union of Public Employees Local 3902
APPEARANCES:
Donald Blais, Applicant ) Dennis Stark, Student-at-law Canadian Union of Public Employees, Local 3902, Respondent ) Richard Blair, Counsel The Governing Council of the University of Toronto, James Dicenso and John Kloppenborg, Respondents ) Catherine Peters, Counsel
1This is an Application filed on December 10, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges discrimination in employment, contracts and membership in a vocational association, on the grounds of race, ancestry, ethnic origin, disability and creed, as well as reprisal under the Code.
2The respondent Canadian Union of Public Employees, Local 3902 (“CUPE” or the “Union”), requested a summary hearing in the Application, on the basis that there is no reasonable prospect that the Application against it can succeed. The Governing Council of the University of Toronto, James Dicenso and John Kloppenborg (collectively, the “University”) agree with the position of CUPE. Further, the University takes the position that the Application as a whole should be dismissed for delay, pursuant to section 45.1 of the Code, or as an abuse of process.
3The Tribunal scheduled a one-day summary hearing on March 21, 2011 to receive the submissions of the parties on the issues raised by the respondents. The parties were directed to deliver and file copies of any further documents or cases on which they intended to rely at the summary hearing, and all did. Much of the documentation before me was in the nature of communications between the parties. Although the meaning to be given to some of these communications was disputed, their authenticity was not.
4For the reasons below, I find that the Application against CUPE must be dismissed as it has no reasonable prospect of success. I also find that the Application against the University must be dismissed as it was filed beyond the time limit established in the Code and the delay was not incurred in good faith.
ALLEGATIONS AGAINST CUPE
5Unless otherwise noted, the background facts described below are not contested.
6CUPE is a certified trade union that holds bargaining rights for teaching assistants, lab demonstrators, tutors, part-time lecturers and others who are students or postdoctoral fellows at the University. This bargaining unit will be referred to as Unit 1. CUPE also represents a bargaining unit of part-time teaching staff at Victoria University (Unit 2) and a bargaining unit of non-student/fellow short-term teaching staff at the University (Unit 3). The applicant was a member of Unit 3 at the relevant times.
7Most members of Unit 3 are sessional lecturers. They are hired by the University on a course by course and term by term basis to teach courses to students of the University. Among the group of sessional lecturers in Unit 3, some have been advanced or promoted to the rank of Sessional Lecturer II, whose members are entitled to hiring preference over Sessional Lecturer I members for courses for which they are qualified. However, there is no guarantee in the collective agreement that any particular work will be posted to the Unit.
8Members who believe that their rights under the CUPE-University collective agreement have been violated may bring their complaint to CUPE, which may file a grievance on their behalf. CUPE retains carriage of all grievances.
9The applicant worked for the University on a series of sessional contracts from the fall of 1998 to the spring of 2006, in the Department for the Study of Religion (the Religion department). He has not worked for the University since then.
10CUPE filed grievances on behalf of the applicant in September 2005, April 2006, May 2006, July 2006 and April 2007. The applicant was also covered by a group grievance filed in August 2006. The individual grievances allege, among other things, that the applicant should have been hired to teach certain courses and, with respect to the July 2006 grievance explicitly, allege breaches of the “no-discrimination” clause of the collective agreement and request damages for breach of human rights. The July 2006 grievance also raised the issue of the cancellation of a course in the Religion department, Aboriginal Religion, which had been previously taught by the applicant, and sought reinstatement of the course.
11The grievances were referred to arbitration and hearings took place before an arbitrator, William Kaplan, on June 7, 2007, October 22, 2007, November 8 and 9, 2007 and November 12, 2007. The parties had also scheduled hearings for July 4, October 23 and December 11, 2008.
12CUPE established a Grievor Support Fund in 2007 to provide emergency interest-free loans to members in dire financial straits whose cases have been referred to arbitration as an advance on a settlement. The applicant was the first grievor to be granted a loan through this Fund, and ended up borrowing $16,500 from the fund through the course of the arbitration.
13Counsel for the Union and Union representatives met with the applicant on a number of occasions to prepare for the arbitration, prior to the start and before each scheduled set of hearings. Many hours were spent in review of the applicant’s case. The Union states that in one of the meetings in advance of the first date of arbitration, a discussion arose about a matter during which the Union and its counsel clarified to the applicant that counsel acted for the trade union and the solicitor-client relationship was between the Union and counsel, and not between the applicant and counsel. The applicant disputes that this information was conveyed to him at this time (i.e. before June 2007).
14The applicant made the Union aware that he was autistic and as a result, Union counsel arranged for certain accommodations for him during the hearing.
15After several days of evidence, on the morning of July 4, 2008, the arbitrator strongly recommended that the Union consider mediation. Over several hours on that day, the issues were discussed between Union counsel, Union representatives, the applicant and an individual the Union understood to be the applicant’s advisor, Jeffrey Teresinski. Mr. Teresinski was present at the hearing before me, and described himself before the Tribunal as an “autistic facilitator”.
16There is some disagreement about the precise contents of the discussion. The applicant states that Union counsel and the Union’s representative Mikael Swayze “attempted to exert extreme pressure” on the applicant to accept a $100,000 settlement. The Union states that there was no offer to settle from the University but that when asked by a member of the group what he thought an offer to settle might involve, Union counsel indicated his opinion that it would be reasonable to expect an offer would be between $50,000 and $100,000 but no higher than $100,000.
17During this meeting, one of the Union’s representatives stated to the applicant “$100,000 is a lot of money for you.”
18The Union states that at the conclusion of the meeting on July 4, 2008, the group decided to pursue mediation prior to the next scheduled arbitration date in October and agreed to prepare for mediation as a group including the applicant’s bishop and anyone else he wished to bring to the meeting. The applicant states he was prepared to consider mediation but was not convinced it was in his best interests.
19The applicant states that it was on July 4, 2008 and not earlier that he was made aware that Union counsel represented the Union and not him. In email correspondence from Mr. Swayze to the applicant on July 7, Mr. Swayze reiterated the fact that the Union has carriage of the grievance and restated why the Union was considering mediation. He inquired about possible dates for mediation. Following this, the applicant began to correspond with the new president of the Union local (Bob Ramsay) regarding his case and ceased to communicate with Mr. Swayze. Meanwhile, Mr. Swayze continued to seek a date for mediation.
20On August 18, 2008, the applicant and Mr. Teresinski met with Mr. Ramsay and a CUPE National Representative, Sharon Rodgers, to discuss his case. In his Application, the applicant states that during this meeting, he asked that Swayze be removed as his representative, “over concerns that Swayze may be ethnically conflicted.” He explains that Mr. Swayze, Dr. Kloppenborg (one of the individual respondents and the person the applicant believes to be primarily responsible for the alleged discrimination against him) and the arbitrator Mr. Kaplan, and the new associate chair of the Religion Department “all share the same ethnicity/religion.” The applicant believed them all to be Jewish although the University states that Dr. Kloppenborg is in fact not Jewish.
21The Union describes the applicant’s views at this meeting as articulating a view that there was a conspiracy by the Jews involved in his case to deprive him of justice. The applicant denies using the term “conspiracy by the Jews” but, as indicated above, does not disagree that he wished to have Mr. Swayze removed as his representative because he is Jewish and believes that this results in an “ethnic conflict”. In his submissions, the applicant described his request to have Mr. Swayze removed as his representative as a “reasonable accommodation”, based on his discomfort with meeting with him as a result of being discriminated against by another individual sharing the same religious tradition as Mr. Swayze.
22On August 21, Ms. Rodgers offered to have the CUPE Legal Department look at providing advice/assistance to the applicant with respect to a potential human rights complaint. An email from Ms. Rodgers to Mr. Ramsay, which was forwarded to the applicant on August 29, states that the applicant “can file a human rights complaint at anytime. If he wants to pursue this [on his own], I would support him by having him write out his complaint and sen[d] it to me.” The applicant did not take further action to explore the possibility of a human rights complaint to the Tribunal at this time. The applicant states in his Application that “as an autistic, he required such assistance in the filing of forms was well known to Swayze and other Union membership familiar with his case.”
23Ultimately, the applicant agreed to October 14, 2008 as a date for mediation, and the Union wished to arrange a preparation meeting for October 7. The applicant subsequently asked to cancel the preparation meeting, the mediation and the arbitration of October 23. He did not wish to participate in mediation (although he also states in his correspondence that he may agree to it later), and wished to proceed with the arbitration on December 11. The applicant also referred to concerns about his health at this time as a reason for adjourning.
24During this time, other correspondence from the applicant refers to his belief that the University “has planned, for some time now, to remove or allow for attrition of non-Jewish faculty to advance the Jewish Studies Programme…” He also describes himself as experiencing “the worst discrimination at a University in Canada: a Jewish union rep who has refused to recuse himself when asked; a union which arranges for a Jewish arbiter [sic], and two Jewish chairs (Kloppenborg & Green) making sure that my position is sacrificed…” He states his intention to “involve lawyers known to defend against instances of Semitic racism.”
25Mr. Ramsay responded to the applicant’s correspondence by objecting to his comments as highly offensive and utterly unfounded. The Union continued, however, to work on the applicant’s case. As indicated, the applicant asked to cancel the October 23 date set for arbitration and the Union made that request to the University. The University agreed to an adjournment of the date on condition, among other things, that it be provided a medical note supporting the request, and the parties devote the December 11 day to mediation. The Union agreed to this.
26During the course of email exchanges relating to the applicant’s request to have Mr. Swayze removed as his Union representative, he advised Mr. Ramsay that it was not a “matter of personal choice”, but because of his autistic syndrome in that he had “an autistic’s natural hardwiring to be unable to continue in a workable relationship with those directly experienced as significant liars or deceivers” [emphasis in original], and that this was “common knowledge in all psychological manuals and current research dealing with autistic spectrum disorders.” The applicant alleges that Mr. Ramsay responded, “I don’t think it is a reasonable expectation for me to learn about [the applicant’s autism].”
27On November 19, 2008, the applicant sent a letter to the trade union in which he expressed various concerns including poor legal advice, conflicts of interests and “the Union’s own systemic discrimination.”
28The Union states that as a result of the events in the late summer and fall of 2008, it became aware that the applicant possessed strong anti-Semitic opinions. This led it to doubt that the applicant’s case at arbitration could succeed. The Union believed that the applicant would express these views on the witness stand, to the detriment of his case. It would give credence to testimony already given by Dr. Kloppenborg at the arbitration that some students had complained about anti-Semitic comments in the course of the applicant’s teaching.
29By December 11 the Union states it had come to the conclusion, supported by legal advice from counsel, that it did not have any real prospect of success if it pursued the case through arbitration.
30The applicant did not attend on December 11. He states that he was advised by a legal clinic that he should not attend, so as not to further subject himself to emotional abuse, and not to give any appearance that he was providing tacit approval of any decision made. The Union proceeded to mediation on December 11 without the applicant. It eventually reached a settlement with the employer that included a payment of $50,000 to be paid in two instalments.
31Following the mediation, the Union sent the applicant a copy of the Memorandum of Settlement and the University sent him the cheques. The applicant returned the cheques to the University uncashed. Further events led to renegotiation of the terms of the settlement so that the University paid the Union the entire debt owed by the applicant ($16,500), and committed to hold the balance of the settlement for him to be available when he elected to claim the funds.
32The Application alleges that job postings in the spring of 2009 violated the collective agreement and were discriminatory. The applicant neither applied for any positions at that time, nor asked the Union to file any grievances about the postings.
Submissions
33The applicant’s allegations against the Union can be summarized as follows:
The Union’s accusations of anti-Semitism against the applicant are themselves discriminatory;
The Union’s actions as his representative were discriminatory. Included in this general category are allegations that it failed to file additional grievances on his behalf, failed to adequately advance his claims of discrimination during the arbitration, failed to respect his wish to have a change of Union representative, failed to appoint independent legal counsel for him and failed to follow up on an offer to assist him with a complaint to the Tribunal.
The Union failed to accommodate his religious beliefs or his disability of autism, in its refusal to change his Union representative (here the applicant refers to Mr. Ramsay’s statement made, in the context of the applicant’s request that Mr. Swayze be replaced for reasons related to his autism, that “I don’t think it is a reasonable expectation for me to learn about [ the applicant’s autism]”), and the conduct of the meeting of July 4, 2008.
The comment “$100,000 is a lot of money for you” is discriminatory because it is directed towards him as an aboriginal person and was experienced by the applicant as raising “the stereotype of an Aboriginal spending their settlement on a drinking binge.”
The Union agreed to changes to the collective agreement allowing members of Unit 1 to apply for Unit 3 courses in certain circumstances. The applicant’s Reply refers to having been notified of this in certain Union comments made on March 31, 2008, accompanying a job posting. The applicant also alleges that postings in the spring of 2009 allowed Sessional I lecturers to compete with Sessional II lecturers for the same contracts, and made no mention of accepting a Th.D. as an equivalent to a Ph.D., part of an unbroken discriminatory pattern at the University which is “knowingly facilitated” by the Union. His Reply suggests that the change regarding Sessional I lecturers was also accomplished through a change to the collective agreement.
At the hearing, the applicant made two additional allegations. The first was that the Union refused or ignored his request in March 2008 to contact an individual the applicant described as an “autism specialist”. The second was that Mr. Swayze was in a conflict of interest in representing him, as he was applying for a position with the University.
34The applicant stated in his oral submissions that the “turning point” in his relations with the Union was in November 2007, when Dr. Kloppenborg testified during the arbitration about complaints of anti-Semitism against the applicant. He stated that he wished to have this challenged during cross-examination, but the Union did not agree.
35The applicant’s answer to Question E28 of the Form pertaining to the Union indicates that he also alleges that the Union engaged in a reprisal against him for the exercise of rights under the Code. There are no particulars given of the reprisal claim, only a reference to his narrative as a whole.
36In the Union’s submissions, there is no reasonable prospect that any of the allegations made against it could lead to a finding that it has violated the Code. The facts relied on by the applicant could not reasonably lead to a finding that the Union discriminated against the applicant or denied him necessary accommodation of his religion or disability.
Decision
37The issue in a summary hearing is whether the Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed. In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-10, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:
In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.
In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the alleged prohibited ground. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.
38As the Tribunal stated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17:
The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one’s Code rights.
39In this case, the applicant relies on a well-documented series of communications between him and the Union, as well as assertions about what occurred during the grievance arbitration process, in support of his claim against the Union. The issue before me is whether the facts he relies on could reasonably support a finding that the Union has violated his rights under the Code. I find that they cannot.
40Section 6 of the Code, which is the applicable provision with respect to most of the allegations against the Union, prohibits unequal treatment with respect to membership in a trade union on the grounds of, among other things, race, ancestry, ethnic origin, disability or creed. I find no reasonable basis on which the Union’s actions towards the applicant could be considered unequal treatment on the basis of his race, ancestry, ethnic origin or creed.
41Most of the applicant’s allegations against the Union reflected dissatisfaction with its advocacy on his behalf vis-à-vis the University. He disagreed with positions taken during the arbitration hearing and with the Union’s decision to pursue a mediated settlement. In Traversy v. Mississauga Firefighters’ Association, 2009 HRTO 996, I stated as follows at para. 33:
Assuming that the Code also applies to this aspect of a union’s relationship with the employees it represents, a claim that the union violates the Code must be based on an assertion of differential treatment, and not simply a failure to act. The failure or refusal to take forward a human rights issue, such as accommodation of a disability in the workplace, is not, in and of itself, a breach of the Code. There may be many reasons that have no discriminatory overtones why a union might choose not to pursue a human rights claim on behalf of an employee: see Baylet v. Universal Workers Union, 2009 HRTO 700. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.
42In this case, I find that there is no reasonable prospect the facts alleged could lead to a finding that the Union’s actions were based on discriminatory factors. I turn to a consideration of the allegations.
43First, there is no reasonable basis on which the Union’s characterization of some of the applicant’s comments and communications as anti-Semitic could be found to amount to discrimination against the applicant on the grounds of race, ancestry, ethnic origin, disability or creed. The applicant does not dispute that he wrote the correspondence the Union refers to, although he states they were taken out of context or deliberately misinterpreted. He clearly disagrees that they reflect any anti-Semitic sentiment. But whether or not the Union fairly or reasonably came to that conclusion, there is nothing in the facts that could support an inference that its opinions or actions were based on the grounds alleged. There is nothing to suggest that it would not have come to the same opinion regardless of the personal characteristics of the applicant.
44The fact that the applicant’s grievances raised issues of discrimination in employment, and that the applicant did not agree with some of the Union’s decisions on strategy, procedure or ultimate outcome in the handling of these grievances, do not by themselves give rise to a claim of discrimination against the Union. There is nothing in these events that suggest that his race, ancestry, ethnic origin, disability or creed were factors in the decision to engage in mediation, or to refuse his request to change his Union representative. It is not clear whether the applicant asserts that the decision to enter into the settlement was itself discriminatory, but if this is part of his claim against the Union, then again, the facts alleged do not provide any reasonable basis for such a conclusion.
45Although the applicant alleges a refusal to file grievances, he does not point to any request made that was refused by the Union.
46The comment “$100,000 is a lot of money for you” could not reasonably support a finding of discrimination or harassment under the Code. Whether or not it might be seen as insensitive, it was not inaccurate in view of the undisputed facts of the applicant’s financial circumstances. The applicant states that he perceived it as discriminatory, in making a link to his aboriginal ancestry, but there is nothing in the comment itself or the context in which it was made from which an inference could be made that such a link was intended or was a reasonable understanding of the comment.
47The assertion that Mr. Swayze was in a conflict of interest because of his own application to the University for a teaching position does not raise any issues of discrimination under the Code.
48Some of the applicant’s allegations suggest that the Union failed to accommodate needs arising from his disability of autism, or his religion, in the manner in which it dealt with his grievances. Although the applicant did not refer to specific provisions of the Code in his submissions, I considered whether these allegations could amount to a failure to accommodate either under section 17 (disability-related accommodation) or section 11 (constructive discrimination).
49I find there is no reasonable prospect that the Union could be found to have failed in any duty to accommodate the applicant’s religion or disability. The duty to accommodate arises where an individual experiences either direct or constructive discrimination as a consequence of a disability or other personal characteristic covered by the Code. The applicant relied on the email correspondence between himself and the Union’s representatives as evidence of the refusal or failure of the Union to accommodate his disability of autism. On my review, I do not find support for his position in that correspondence.
50The applicant suggests that the Union failed to accommodate his disability of autism when it refused to change his Union representative on his request, and when Mr. Ramsay made a statement, in the context of that request, to the effect that he could not be expected to learn about the applicant’s autism. I find there is no reasonable prospect the applicant could establish that the refusal to replace Mr. Swayze amounted to a failure to reasonably accommodate his autism. Given the overall context, in which the applicant had already articulated the basis of his request as a belief that Mr. Swayze was “ethnically conflicted”, it was not discriminatory for the Union to decide not to accede to the applicant’s request or treat it as a request for accommodation on the basis of his disability which required further investigation on its part.
51The correspondence the applicant relies on does not provide any basis for a conclusion that he was unable to fully participate in the discussions and decision-making around his grievances because of his religion or disability and that the Union failed to accommodate his needs arising from those personal characteristics. The correspondence demonstrates that the Union gave the applicant the opportunity to bring his religious advisor to the proceedings or meetings, sought an adjournment on medical grounds when he requested it, and provided lengthy and thoughtful responses to concerns he raised, even when some of the applicant’s comments were viewed by the Union as offensive.
52There is an implicit if not explicit suggestion that the Union’s decision to engage in mediation rather than continue the arbitration hearing was in itself discriminatory but there is nothing before me establishing that the applicant was unable, because of a religious or disability-related need, to participate in the process of mediation, and could only participate in arbitration. Clearly he disagreed with the decision but that is a dispute about the nature or quality of the union’s representation of him, not an issue of discrimination under the Code.
53The applicant’s assertion that the Union should have contacted an autism specialist on his request does not raise an issue of discrimination or failure to accommodate under the Code. The email from the applicant asks Mr. Swayze to “do him a favour” by contacting an individual he describes as a “psch scholar and advocate for autistic persons.” He describes the benefit of such a contact as the possibility that this individual may have “some suggestions” with respect to his case. There is no assertion that without the involvement of this individual, he would be unable to fully participate in the grievance proceedings as a result of a disability.
54There is nothing in the facts alleged that suggest the applicant was unable, for religious reasons, to participate in the grievance arbitration process, and that the Union failed to accommodate his religious needs. The applicant did not ask the Union to adjourn any date set for arbitration or mediation as a result of religious needs. As indicated, he did ask to have dates adjourned for a disability-related need, and the Union complied with his request.
55The suggestion that the Union should have known that he required assistance in completing forms initiating an application to this Tribunal does not amount to a failure to accommodate. The Union offered its assistance and the applicant did not take further steps to follow-up on that offer, including to advise the Union that he was unable to fill out any forms without its assistance.
56In relation to the meeting of July 4, the applicant alleges that the seating arrangement did not take account of his autism-related needs, such as to be near an exit. There is nothing that suggests that this was communicated to the Union at the time or that it would not have accommodated such a request if made. The applicant alleges that he felt pressured by the discussion at the meeting but that in itself would not lead to a finding of a violation of the Code. In any event, no decisions were made at that meeting, and the applicant was given time during the months following to consider his position and provide his input to the Union.
57The correspondence indicates that the Union was frank with the applicant about its view that the parties should attempt to arrive at a mediated settlement. The Union made it clear to the applicant, if not at this meeting, then subsequently, that if the University offered to settle on a basis that it viewed as meeting the applicant’s best interests and the interests of its members as a whole, it would accept it. The Union sought his input on the framework of a proposed settlement. The applicant may have disagreed with the Union’s assessment of the matter but that in itself does not give rise to an issue of discrimination.
58In short, on the material before me, there is no basis for a finding that any of the decisions the Union made or actions taken in the handling of the applicant’s grievances were based on discriminatory factors, or were a result of a failure to accommodate any religious or disability-related needs under the Code. The applicant’s dissatisfaction with the Union’s handling of his grievances is not a basis for a finding of a violation of s.6 of the Code.
59Some of the applicant’s allegations may be seen as raising issues under section 5 of the Code, insofar as he suggests that the Union agreed to discriminatory changes to the posting process, in the collective agreement or otherwise.
60During his submissions, I queried the applicant on his theory that changes to the posting process discriminated against him on the grounds of his aboriginal ancestry. He referred to excerpts from the Report of the Royal Commission on Aboriginal Peoples which speak of racism against aboriginals as experienced through, among other things, exclusion. He stated that the University has never made efforts to have the number of aboriginal teachers reflect the student population.
61I see no reasonable prospect that these allegations could lead to a finding under section 5 against the Union. Even if the Union agreed to the posting and qualifications at issue, there is nothing before me that gives rise to any basis for a finding that those elements of the hiring process discriminate against the applicant on the ground of his aboriginal ancestry as alleged. There is nothing directly discriminatory about the alleged change to the collective agreement allowing Unit 1 lecturers to apply to Unit 3 postings, and there is nothing in the facts alleged that could establish that it amounts to constructive discrimination in the sense of being a neutral factor having an adverse effect on persons of aboriginal ancestry. I arrive at the same conclusion regarding a related suggestion that the Union was complicit in the University’s decision to allow Sessional I lecturers to compete for courses with Sessional II lecturers, or to fail to explicitly give recognition to a Th.D. (doctorate in theology) as an equivalent to a Ph.D. Even if the Union had any part in these decisions, there is no reasonable prospect that these allegations could lead to a finding of either direct or constructive discrimination on the grounds alleged.
62As indicated above, the applicant’s answer to Question E28 of his Application asserts that the Union engaged in a reprisal under the Code, and refers to his narrative as a whole. Section 8 of the Code provides:
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
63On my reading of the applicant’s narrative, and having heard his oral submissions, there are no facts alleged against the Union that could sustain a finding of reprisal. The applicant’s narrative addresses his claim that the Union discriminated against him in the course of representing him in the workplace, including refusing or failing to accommodate his religious or disability-related needs in the handling of his grievances. It does not describe how the Union engaged in any action or made any threat intended to retaliate for the applicant’s assertion of rights under the Code.
64In conclusion, the allegations against the Union are dismissed.
DELAY IN BRINGING THE APPLICATION AGAINST THE UNIVERSITY
65Many of the facts described above are also relevant to the issue of the timeliness of this Application.
66As described above, the applicant filed grievances on April 3 and July 12, 2006, over the failure to be awarded certain sessional contracts. The grievance of July 12 also raised the University’s withdrawal of Aboriginal Religion as a course offering.
67The Application raises the same issues as those grievances. In the narrative attached to the Application, the applicant describes his history of teaching at the University. He alleges that he was streamed into teaching Aboriginal Religion over his years with the University and was denied the opportunity to teach non-Aboriginal Religion courses. He alleges that Aboriginal Religion was cancelled for discriminatory reasons and with a view to shutting him out from any teaching opportunities in the Religion department. He also suggests that the decision to stop offering this course in 2006 was a reprisal in response to his grievances.
68The applicant alleges that the same discriminatory pattern has continued through to the 2009-2010 academic year, in the sense that Aboriginal Religion continues to remain off the course listings. He also alleges that he was unable to apply for courses in the spring of 2009 because of changes allowing Unit I lecturers to apply for Unit 3 postings, and the absence of recognition of his Th.D. as equivalent to a Ph.D. The Application states that the postings “allow non-Religious Studies PhDs to make application but make no mention of accepting ThDs as an equivalency.” The applicant does not disagree that the University’s guidelines allow for the consideration of Ph.D. equivalent degrees but, in his Reply, states that, in light of some evidence given by Dr. Kloppenborg during the arbitration, he lacks all confidence in the “consideration” of “equivalent degrees.”
69The applicant alleges that these actions are a deliberate and continuous pattern of discriminatory action against him on the grounds of race, ethnicity, religion and religious vocation.
70In his submission, the whole history of his dealings with the University and the Union over the events covered by the Application are a “series of incidents”. He understood that he could file his Application within a year of the conclusion of the series of incidents and that, by filing it on December 10, 2009, it was a timely Application. Although at some points the applicant refers to discrimination continuing into 2009-2010, at other points he suggests that he viewed the settlement of December 11, 2008 as establishing the date from when the time to file an Application began to run, which is consistent with his statement that he took the one year time limit “literally” and so filed his Application on December 10 of the following year.
71During the hearing, I sought clarification on what recent events formed the basis of the applicant’s allegations that there was a continuing series of incidents of discrimination. I asked the applicant what were the most recent acts of discrimination. The applicant referred to the continuing failure to offer Aboriginal Religion as a course, as well as the alleged changes to the postings and qualifications. He also stated that he believed, based on the evidence given by Dr. Kloppenborg during the arbitration hearing, that the Religion department was no longer going to treat a Th.D. as equivalent to a Ph.D for hiring purposes. I sought clarification on how this change in qualification amounted to discrimination under the Code, and the applicant stated that it was an exclusionary policy that disadvantaged him as an aboriginal person.
72The University submits that the events forming the basis of the allegations of discrimination against it occurred before April 2006, the last time the applicant worked for the University. Although the Application refers to events following April 2006, relating to the grievance and arbitration process, the steps taken in that process, including the mediation and settlement of the applicant’s grievances on December 11, 2008, are not part of the allegations of discrimination. There is no allegation that the University’s settlement of the grievances on that date was in itself an act of discrimination.
73It is true that the applicant has referred to the academic year 2009-2010 in his Application but in the University’s submission, there are no new facts in relation to that academic year that were not known to the applicant from years previous. For instance, the applicant asserts that Aboriginal Religion remains off the course offerings. This is not a new issue as this course was withdrawn in 2006 and was in fact one of the issues referred to in the grievance of July 2006. The University may have stopped listing the course in the course calendar in 2009, but this simply reflects the fact that it had been some years since it was actually offered.
74The University states that the assertion that teaching requirements were changed in 2009 to exclude the applicant is also not based on any new facts. In any event, there are no facts alleged that provide a basis for a claim that any change in the teaching requirements was discriminatory or done as a reprisal against the applicant. Even if this allegation is timely, it cannot proceed, and it certainly cannot be said to be part of a “series of incidents” which would allow the applicant to pursue the other untimely allegations.
75In the University’s submission, the applicant has not provided an explanation for the delay that meets the onus under section 34. He states, essentially, that he was waiting for the arbitration process to finish. The Tribunal has stated in its decisions that this is not a reasonable explanation for a delay in filing an Application. In this case, it submits, the applicant knew as of July 4, 2008 that the Union was intending to participate in a mediation with which he did not agree. He knew as of December 12 that the Union had reached a settlement with which he did not agree. He still waited until almost a year later, December 10, 2009, to file his Application. There is no explanation for that delay.
Decision
76Section 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:
- (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.
77Under 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.
78As 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.
79The 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. The 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. In Gagne v. Maximum Mining, 2010 HRTO 689 the Tribunal stated that “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(2).”
80Further, 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. See Thorogood v. International Brotherhood of Electrical Workers, Local 120, 2010 HRTO 786.
81The threshold question in applying section 34 to the circumstances here is what constitutes the “incident” or “series of incidents” upon which this Application is based. In considering the meaning of the “last incident in a series”, the Tribunal has adopted the principle discussed in Visic v. Ontario (Human Rights Commission), 2008 CanLII 20993, 236 O.A.C. 115 (ON S.C.D.C.), to the effect that the continuing effects of an act of alleged discrimination do not in themselves constitute further acts of discrimination.
82Where an applicant asserts that there is a series of incidents, the last of which falls within a year of the Application, that “last incident” must be an event upon which an allegation of a violation of the Code is based. An application is not made timely simply because there is some sort of interaction between an applicant and respondent sometime in the year before it is filed.
83Thus, in Darroch v. King (Township), 2010 HRTO 2268, for instance, I decided that a meeting at which an applicant was provided with the results of a workplace investigation was not the “last incident” in a series within the meaning of section 34(1). There was no new act of discrimination alleged to have occurred in the meeting. As well, in Colbeck v. Pinecrest-Queensway Community Health Centre, 2010 HRTO 1435, a meeting at which the respondent refused the applicant’s request to be reinstated was found not to be part of a “series of incidents”, as it amounted simply to confirmation of the original action taken.
84For ease of reference, where I refer to the applicant’s allegations of “discrimination” in applying sections 34(1) and 34(2) below, I include his allegations of reprisal.
85Applying these principles, I find that the events of December 11, 2008 cannot be viewed as the last incident in a series of incidents for the purpose of section 34(1). As I have indicated, the Union’s decision to enter into a settlement of his grievances does not by itself give rise to an arguable claim of discrimination. It was not alleged that the University’s actions in settling the grievances were independent acts of discrimination in employment and there are no facts that would support such a theory in any event.
86The applicant referred to an unbroken pattern of discrimination continuing into 2010 but on my review of the facts in support of his allegations, it is apparent that much of what he refers to are not independent “incidents” of discrimination since 2006, but only the continuing effects of past decisions or actions. When I asked the applicant at the hearing to describe the most recent event of alleged discrimination, he referred to the “continuing refusal” of the University to offer Aboriginal Religion in its Religion Department, which he stated is still not being taught for the fifth year in a row. That was a decision originally made in the spring of 2006, and was the subject of one of the applicant’s grievances that year. The failure to reinstate the course in 2009, or by the time of the hearing, is not a new act of discrimination, but part of the continuing effects of an alleged act of discrimination in 2006.
87In its Response, the University acknowledged that in or around 2009, a decision was made to “remove Aboriginal Religion from the Department’s curricular offerings.” During oral submissions, the University stated that all it did in 2009 was to stop listing this course in its course calendar, because it had not been offered in some years. All the facts about the University’s decision to stop offering this course were known to the applicant in 2006.
88The applicant also stated that he was prevented from applying for courses in the spring of 2009 because of changes to the posting process and qualifications. I have found above that there is no reasonable prospect that the Application against the Union based on the allegation that it was complicit in some of these actions could succeed. The conclusion is the same regardless of whether the claim is against the Union or the University. In any event, the material before me does not establish any new facts in relation to these allegations specific to 2009. There may have been new postings, reflecting a new academic year, but there was nothing in the postings that was unknown to the applicant from previous years. It should not be noted that the applicant did not apply for any positions in 2009, so the discrimination alleged is not a refusal to hire, but is based on the content of the postings.
89Although in the Reply, the applicant refers to the change to the collective agreement allowing Unit 1 members to post for Unit 3 positions as having taken place following the settlement of his grievances, the document he relies on demonstrates that the change was announced in March 2008.
90There were also no new facts in 2009 with respect to the qualifications for teaching courses in the Religion department. The applicant alleges that the postings of the spring of 2009 fail to specify that Th.D’s would be treated as equivalent to Ph.D’s in the posting process, but this was not new. What changed was the applicant’s perception, based on evidence given during the arbitration, that his Th.D would no longer be accepted as an equivalent to a Ph.D. Whether or not he is accurate in his account of that evidence, which is disputed, this does not lead to an independent act of alleged discrimination in 2009.
91In his Reply, the applicant raises an allegation that testimony given during the arbitration was discriminatory. Even if he could use evidence in another proceeding as the basis of an application under the Code, the last day of hearing during which evidence was given was November 12, 2007, well beyond the one-year time limit.
92I therefore find that the Application against the University was filed beyond the one-year limitation specified in the Code. With a few exceptions, the events forming the basis of the Application occurred before July 2006. He could have filed his Application about these events at that time. The applicant refers to some events following July 2006, such as events during the grievance and arbitration process, but they cannot be considered part of a “series of incidents” for the purpose of section 34(1). I have also found that, with respect to some of these later events, there is no reasonable prospect they could form the basis of a finding of a violation of the Code against either the Union or the University.
93It remains for me to consider whether the delay in filing the Application was incurred in good faith. The applicant submitted in his Reply that he could not pursue his allegations of discrimination until his grievances were resolved. He also submitted that he believed that the Union would represent his interests, including taking forward his claim of discrimination through the grievance and arbitration process. He states that if he had known the Union would diminish or dismiss his discrimination complaints, he would have immediately approached the Tribunal and not filed grievances through the Union.
94Where applicants believe their rights under the Code have been infringed, they have a year within which to seek advice, consider their options, investigate and bring a claim to the Tribunal. Within that year, an applicant may choose to pursue other avenues of redress. However, as I have indicated above, the Tribunal has generally not viewed an applicant’s efforts to pursue a claim of discrimination without filing an application as a reasonable explanation amounting to good faith under section 34(2), thus allowing an untimely Application to proceed.
95The Tribunal has concurrent jurisdiction with arbitrators over claims of discrimination in a workplace covered by a collective agreement. Where an application is made while an applicant is also seeking a remedy through a grievance arbitration process, the Tribunal may defer the application pending the conclusion of that process (s.45), and has done so on many occasions.
96The applicant may have mistakenly believed that he was obliged to wait until the conclusion of the arbitration process but he had ample opportunity to seek advice on the matter. In fact, it appears that he was consulting with a legal clinic in the fall of 2008, and had been represented by the same clinic in a previous complaint to the Ontario Human Rights Commission in 2007.
97Even if I accept that it was reasonable for the applicant to believe he could achieve an adequate remedy through the arbitration process, and to refrain from initiating an Application at the outset for that reason, it is clear that by July 2008, he had lost faith in that process and in the Union. He was contemplating filing an Application to the Tribunal but did not do so for another year and half. The applicant has not provided any reasonable explanation for why he waited from July 2008 to December 10, 2009 to file this Application.
98In conclusion, I find that the Application against the University was filed beyond the time limit provided in section 34(1) of the Code, and the applicant has not satisfied me that the delay was incurred in good faith.
99Given my conclusion on the issue of delay, it is unnecessary to consider the University’s additional submission that the Application against it should be dismissed under section 45.1 or as an abuse of process.
100In the result, the entirety of the Application is dismissed.
Dated at Toronto, this 21st day of November, 2011.
“signed by”
Sherry Liang Vice-chair