HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Leonard Bish
Applicant
-and-
Canadian Union of Public Employees, Local 5167 and the City of Hamilton
Respondents
DECISION
Adjudicator: Naomi Overend
Indexed as: Bish v. Canadian Union of Public Employees
BACKGROUND FACTS
1This Decision deals with the request brought by the respondent, the Canadian Union of Public Employees, Local 5167 (“CUPE”), that the Application be dismissed for lack of jurisdiction on the basis of delay.
2The applicant alleges that due to a lung condition he was unable to continue in his position with Hamilton Street Railway, which is the name of the transit system in the City of Hamilton (“the City”). In order to accommodate his disability, the City moved him to a position with the Traffic Operations Department. This started out as a temporary accommodation in May 2007, but was made permanent on June 30, 2008.
3In the first position, the applicant was a member of the Amalgamated Transit Union (“ATU”); in the second position, he became a member of CUPE, as it was the bargaining unit for the employees in the Traffic Operations Department. His seniority with ATU (30 years) was not recognized by CUPE, and his CUPE seniority started accruing as of May 15, 2007, when he started working in a position within the purview of that bargaining unit.
4The applicant stated that he did not dispute the denial of his ATU seniority at the meetings in May 2007 and June 2008, although he was aware that this was a consequence of being moved to the new department. In November 2008, he filed a grievance with CUPE, which was denied by the City at Step 2 of the grievance process on February 9, 2009. In March 2009, his grievance was withdrawn by CUPE.
5On June 16, 2009, the applicant states he was invited to a meeting and advised that he was being “bumped” from his position by a person within the bargaining unit who had more seniority. This move had no practical effect as he continued doing the same work. However, his position status changed from “permanent” to “temporary full-time.” He was advised that if the person originally holding the position he was filling on a temporary full-time basis returned to work, then the City’s Return to Work Services would be taking over his file, which would be responsible for finding a new position for him.
6The applicant filed his Application on January 27, 2010 alleging discrimination in employment on the basis of disability concerning the loss of his seniority, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”).
7CUPE filed a Request for Order During Proceedings (Form 10) asking the Tribunal to dismiss this Application on the basis of delay. The City indicated that it “does not object” to the order being requested. The applicant did not file a Response to the Request for Order (Form 11).
Decision and analysis
8The applicant alleges that the last incident of discrimination occurred on February 9, 2009 when his grievance was denied. CUPE states that the last incident of alleged discrimination occurred on June 30, 2008, when his accommodation in the new bargaining unit became permanent, and that the Application is, therefore out of time.
9Section 34 of the Code states:
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.
10As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at para. 24, “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.” When filing outside this one-year time limit, it is incumbent upon the applicant to provide the Tribunal with an explanation as to why he did not pursue his rights under the Code in a timely manner.
11The applicant asserts that his Application was not outside the one-year time limit set out in s. 34 because the last incident of discrimination occurred when the City denied his grievance in February 2009, less than a year before he filed his Application. Assuming for the purposes of this decision that the loss of seniority constitutes an act of discrimination, it is difficult to see how the denial of a grievance based on that loss of seniority constitutes a separate act of discrimination on which a claim might be founded.
12Moreover, this 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. See Abutalib v. Toronto Police Services Board, 2010 HRTO 1697.
13There was nothing to prevent the applicant from filing a separate human rights application even while CUPE was filing a grievance on his behalf. In any event, the decision that CUPE made to not pursue his grievance took place in March 2009 but the applicant did not file his Application with the Tribunal until approximately 10 months later. The applicant has failed to provide any explanation for why he waited almost another year before pursuing his Application.
14While the applicant does not argue that the act of being “bumped” in June 2009 was part of an ongoing series of incidents, as that term is used in s. 34(1)(b), he does refer to it in the narrative of his Application. Is it appropriate to regard this date as the last in a series of incidents?
15The Ontario Divisional Court in Visic v. Ontario Human Rights Commission, 2008 CanLII 20993, at para. 45, adopted the test for a “continuing contravention” applied by the Manitoba Court of Appeal in Manitoba v. Manitoba (Human Rights Commission), (1984), 1983 CanLII 2967 (MB CA), 25 Man. R. (2d) 117, 1983 CanLII 4703 (MB CA), 5 C.H.R.R. D/1885, at para. 19:
To be a “continuing contravention”, there must be a succession or repetition of separate acts of discrimination of the same character. There must be present acts of discrimination, which could be considered as separate contraventions of the Act, and not merely one act of discrimination, which may have continuing effects or consequences.
16The distinction between “continuing effects of an act of alleged discrimination” and “further acts of discrimination” has been accepted by this Tribunal: See, for example, Mafinezam v. University of Toronto, 2010 HRTO 1495.
17On the face of the facts in this instant case, the fact of being bumped is properly characterized as a “continuing effect” of a decision made in 2007 and ratified in 2008 that the applicant would not carry his seniority into the new bargaining unit. It cannot properly be characterized as a discrete act of discrimination.
18The Tribunal can accept an Application that is outside the one-year time limit if it is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. As noted in Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, to determine that a delay in pursuing one’s Code rights was incurred in good faith, the applicant must provide a reasonable explanation for why he did not pursue his Code rights in a timely manner.
19I am not persuaded that the applicant has provided a reasonable explanation as to why he did not pursue his rights under the Code in a timely fashion. He does not indicate that he was of the view that the most appropriate method of proceeding was to pursue his grievance. Even if that were the case, however, the applicant has provided no explanation for why he waited for more than 11 months after his grievance was denied to pursue his rights via an Application to this Tribunal.
20Given the absence of evidence that the delay was incurred in good faith, the Tribunal is without the jurisdiction to deal with this Application. It is not necessary, therefore, to address the issue of prejudice.
21The Application is accordingly dismissed.
Dated at Toronto, this 31st day of January, 2011.
”Signed by”
Naomi Overend
Vice-chair