Woodbeck v. The City of Thunder Bay, 2011 HRTO 666

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Harold Woodbeck

Applicant

-and-

The City of Thunder Bay

Respondent

a n d B E T W E E N:

Harold Woodbeck

Applicant

-and-

CUPE Local 87

Respondent

INTERIM DECISION

Adjudicator: Brian Cook

Date: April 6, 2011

Citation: 2011 HRTO 666

Indexed as: Woodbeck v. Thunder Bay (City)

WRITTEN SUBMISSIONS BY

Harold Woodbeck, Applicant ) Peter Hollinger, Counsel

The City of Thunder Bay, Respondent ) M. Fricot, Counsel

1This Interim Decision deals with two Applications under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The first Application (Tribunal File No. 2009-02547-I) named the City of Thunder Bay (the “City”) as a respondent and was filed on June 5, 2009. The second Application (Tribunal File No. 2009-02549-I) named the Canadian Union of Public Employees (“CUPE”) and its Local 87 (the “union”) as respondent. That Application was also filed on June 5, 2009. The Application alleges that the City failed to accommodate the applicant’s disability and that the union discriminated against him when it refused to pursue a grievance.

2On the basis of the materials filed by the parties, the Tribunal convened a telephone conference call to discuss various procedural issues. The conference call was held on January 10, 2011. The applicant and the respondents participated.

3During the conference call, I raised the question of the timeliness of the Application against the City. As noted, the first Application was filed on June 5, 2009, and indicated that the date of the last discriminatory event was December 10, 2007, which was more than one year prior to the date the Application was filed. Section 34(1) provides that a person must file an Application within one year after the incident to which the Application relates or, if there was a series of events, within one year after the last incident in the series.

4After the conference call, I issued Interim Decision 2011 HRTO 96, which directed the parties to make written submissions on the timeliness issue. I determined that the other issues discussed during the conference call would be dealt with as necessary after the timeliness issue had been determined. The submissions of the parties have now been received and reviewed. The applicant’s submissions were filed on his behalf by Peter Hollinger, a lawyer retained by the applicant “for the limited purpose of responding to the [Interim Decision]”. Submissions were also received from the City. No submissions were received from the union.

Chronology of events

5The applicant was employed by the City. He began to experience medical symptoms in 2005, which he attributed to air quality issues in the building where he worked. He last worked for the City in May 2005 because he claimed that he was medically incapable of working in the building. On the basis of medical information and air quality studies, the City took the position that the applicant could work in the building.

6On December 10, 2007, the City advised the applicant that his employment would be terminated if he did not report for work. The applicant did not report for work and his employment was terminated in January 2008.

7At some time prior to this, the applicant had secured new employment with a private contractor. The City was one of the contractor’s principal clients. On the basis of correspondence from the applicant’s then lawyer, the City understood that the applicant was a “potential plaintiff” against the City and advised the contractor that it did not want the applicant working on contracts involving the City. This was confirmed in a letter dated December 21, 2007. The nature of any legal proceedings that were at that time underway or contemplated is not clear from the documents filed with the Tribunal. However, the applicant did file a complaint with the Ontario Human Rights Commission (the “Commission”) in March 2008. The complaint alleged that the City had failed to accommodate a disability.

8The Commission closed its file on the applicant’s complaint in July 2008 and advised the applicant to file an Application directly with this Tribunal if he wished to pursue the matter. The applicant did file an Application with the Tribunal, but not until June 2009.

9The union filed a grievance in February 2008, alleging that the City had failed to accommodate a disability. The union withdrew the grievance in October 2008.

10The applicant lost his employment with the private contractor in November 2008. The applicant alleges that the reason for this was that the contractor’s only active project at that time was a project for the City. The applicant’s counsel submits that, “It was clearly an act of discrimination for the City of Thunder Bay to refuse to allow Mr. Woodbeck to be employed on their projects.”

11In summary, the chronology of events is as follows:

• December 2007 – Directive issued to the contractor stipulating that the applicant is not to work on any projects involving the City.
• January 2008 – termination of the applicant’s employment.
• October 2008 – grievance withdrawn by the union.
• November 2008 – applicant laid off by contractor because only available work is a contract with the City.
• June 2009 – Applications filed with the Tribunal.

Conclusions regarding the Application against the City

12Section 34 of the Code provides as follows:

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.

13Section 8 of the Code provides as follows:

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.

14Pursuant to section 34(1), and subject to section 34(2), the applicant can only bring the Application against the City if he can show that there was a discriminatory event that occurred within one year of June 2009, when he filed the Application against the City, or that there was a good faith explanation for the delay and no substantial prejudice will result to any person affected by the delay.

15There are two essential allegations made against the City – discriminatory termination of employment and reprisal for the issuance and effect of a directive preventing the applicant from working on contracts involving the City.

16The alleged discriminatory termination of employment was not within one year of June 2009. The alleged reprisal in the form of issuance of the directive that the applicant not be allowed to work on any contract involving the City was also not within that one-year period. The only event that does fall in the one-year period prior to June 2009 is the November 2008 layoff by the contractor.

17The City concedes that there was a continuing directive to the applicant’s new employer that he not be permitted to work on any contracts involving the City. However, the City contends that, to the extent that this was discriminatory (which it denies), the discrimination arose when the directive was initiated.

18The City submits that the reprisal allegation in this case cannot be seen as a “continuing event” and refers to the Tribunal’s decision in Mafinezam v. University of Toronto, 2010 HRTO 1495 (“Mafinezam”). In that case, the respondent issued a Trespass Notice to the applicant informing him that he could not attend the respondent’s premises. The Trespass Notice was issued several years before the Application was filed. The Tribunal rejected the applicant’s argument that he had been the victim of a continuing act of discrimination and found that the Application had not been filed in accordance with section 34(1) of the Code.

19Section 34(1)(b) does not speak of a series of effects from acts of discrimination. It speaks of a series of incidents. In Visic v. Ontario (Human Rights Commission), 2008 CanLII 20993 (ON S.C.D.C.), the Court adopted the reasoning in Manitoba v. Manitoba (Human Rights Commission) (1984), 1983 CanLII 2967 (MB CA), 25 Man. R. (2d) 117 at para. 19 (C.A.) in which the Court discussed the idea of a “continuing contravention”:

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.

20In Mazinezam, the Tribunal (at paragraph 13) referred to this reasoning and concluded “the continuing effects of an act of alleged discrimination do not in themselves constitute further acts of discrimination.”

21In my view, in this case, if there was reprisal, the reprisal occurred in December 2007, when the directive was issued. On the basis of the applicant’s allegations, the act or incident related to the alleged reprisal was clearly the issuing of the directive. It appears to me that the applicant’s argument is really that the direct effect of the directive was delayed. As discussed further below, the fact that the direct effect of the directive may have been delayed might be relevant in regard to an argument that the delay in filing an Application in respect of the alleged reprisal was incurred in good faith. However, in my view, the fact that the direct effect of the alleged reprisal may have been delayed does not mean the layoff by the contractor can be construed as an act or incident of reprisal by the City. The November 8 layoff is accordingly not an incident for the purposes of s. 34(1). Given this conclusion, I cannot accept the applicant’s argument that the November 8, 2008 layoff is the last in a “series of incidents”, as per s. 34(1)(b).

22The next question is whether the applicant is nevertheless permitted to bring the Application against the City because the delay was incurred in good faith and there is no substantial prejudice to the other parties.

23The applicant submits that he did not file the Application earlier because he was attempting to pursue his rights under the Collective Agreement. In October 2008, the union advised him that it was not prepared to take his grievance to arbitration. While this might help to explain the delay for the period from January to October 2008, the Tribunal has held that delay that results because the applicant is waiting for another legal proceeding to conclude does not in itself provide a good faith explanation for the delay: Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670 and Cartier v. Securitas Canada, 2010 HRTO 546.

24Even if this did provide a good faith explanation, it does not explain the further delay from October 2008 to June 2009, when the Application was filed.

25Additionally, in February 2008, at the same time that the applicant filed the original grievance, the applicant filed a complaint with the Commission. On July 14, 2008, the applicant received a letter from the Commission advising him of the changes to the Code which took effect on June 30, 2008, and directing him to file an Application with the Tribunal if he wished to pursue the matter. If the applicant had followed this direction, the Application would have been filed in time. The applicant concedes that the letter from the Commission informed him that he was required to file the Application within one year of the last incident of alleged discrimination. However, he argues that the letter did not inform him that if he did not file the Application in time, he would be forever barred from doing so.

26In my view, this explanation does not provide a good faith explanation for the delay. The applicant was clearly aware that there was a time limit and should have considered that there were consequences for failing to meet this time limit. At a minimum, he should have taken steps to at least investigate what consequences might flow from not meeting the time limit. However, he has provided no indication that he did this.

27In respect of the new allegation of reprisal, I note that the applicant did not pursue this allegation in November 2008 when he was laid off by the contractor. He also did not pursue this allegation in June 2009 when he filed the Application because he did not identify reprisal as a ground. This potential ground was not identified until February 2011, when the applicant retained counsel to make submissions on the timeliness issue. I do not accept that this 13-month delay was incurred in good faith.

28Even it were accepted that there was a good faith explanation for the delay in regards to the reprisal allegation, it would also be necessary to amend the Application before the reprisal allegation could be considered.

29The Tribunal has permitted amendments to applications made under section 34, taking into account the nature of the amendment, whether prejudice will result to the other parties to the Application, the stage at which the request to amend is made, and whether the proposed amendment is fair. (see Dube v. Canadian Career College, 2008 HRTO 336, Wozeilek v. 7-Eleven Canada, 2009 HRTO 926, and Dunford v. Holiday Ford Sales, 2009 HRTO 1563).

30In considering these criteria, I am not persuaded that it would be appropriate to amend the Application. The history of this Application suggests that reprisal has arisen as a new ground primarily as a way of solving the timeliness problem. As discussed, it only does that if it is also accepted that the lay off was the effect of the reprisal and that the layoff was the last in a series of incidents. The proposed amendment is not simply an expansion of the scope of the original allegations. It would add an entirely new allegation that the respondents would be required to respond to.

31For all of these reasons, I find that the Tribunal does not have jurisdiction to hear the Application against the City, and the Application against the City is dismissed on that basis.

The Application against the union

32The Application against the union was filed within one year of the alleged discriminatory event. The Application was filed on June 5, 2009, and alleges that the decision of the union in October 2008 that it would not pursue the grievance was discriminatory.

33In light of my findings with respect to the Application against the City, the applicant is directed to advise the Tribunal and the union if he wishes to pursue the Application against the union. He must do this within four weeks of the date of this Interim Decision. In considering this, the applicant should appreciate that an allegation that a union failed to pursue a grievance is typically not sufficient to establish an infringement of a person’s Code-protected rights. For example, in Traversy v. Mississauga Professional Firefighters Association, 2009 HRTO 996, at paragraph 33, the Tribunal stated:

[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 must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.

34If the applicant wishes to pursue the Application against the union, he should specify how the union’s failure to pursue the grievance was based on discriminatory factors.