Zuihui Li on behalf of Ning Hui Mu v. Cargill Foods, a Division of Cargill Limited, 2011 HRTO 846

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Zuihui Li on behalf of Ning Hui Mu Applicant

-and-

Cargill Foods, a Division of Cargill Limited, Chris Reicker and Brad Haigh Respondents

-and-

United Food and Commercial Workers Canada Locals 175 and 663 Intervener

DECISION

Adjudicator: Sheri D. Price Date: April 29, 2011 Indexed as: 2011 HRTO 846

APPEARANCES

Zuihui Li, Applicant, on behalf of Ning Hui Mu, Claimant Zuihui Li, Representative

Cargill Foods, a Division of Cargill Limited, Chris Reicker, and Brad Haigh, Respondents Donald Jarvis, Counsel

United Food and Commercial Workers Canada, Locals 175 and 633, Intervener Marcia Barry, Counsel

INTRODUCTION

1The applicant filed an Application on June 30, 2009 under s. 34(5) of the Ontario Human Rights Code, R.S.O. c. H. 19, as amended (the "Code"), alleging discrimination on the basis of age, sex and race in respect of employment. The applicant filed the Application on behalf of the claimant, Ning Hui Mu, who self-identifies as an "over 55-year old Chinese woman". The Application also alleges that the respondents engaged in reprisals against the claimant contrary to the Code.

2The respondents deny that they discriminated against the claimant on the basis of any prohibited ground under the Code. They also contend that the applicant is prevented from filing the Application with the Tribunal on the basis of delay, pursuant to s. 34(1) and (2) of the Code.

3Pursuant to an earlier Interim Decision, 2009 HRTO 1839, an in-person hearing was convened on November 24, 2010 to afford the parties an opportunity to make oral submissions on the delay issue.

4For the reasons set out below, I find that the Application was filed more than a year after the last incident or the last in a series of incidents to which the Application relates. I am not satisfied that the delay in filing the Application was incurred in good faith. The Application is therefore dismissed.

BACKGROUND

5The claimant was employed by the corporate respondent ("the employer") in its meat processing facility from 1996 until January 28, 2008.

6In October 2007, the claimant applied for and was granted a leave of absence from work for the period from November 19, 2007 to December 19, 2007.

7In the Application, the applicant alleges that at some points during the period from 1996 to November 19, 2007, the respondents discriminated against the claimant by denying her training as a machine operator; by not providing her with a stool she needed to sit on while working due to an injury; and by denying leave of absence requests.

8On January 28, 2008, the employer terminated the claimant's employment on the stated basis that she had abandoned her job by failing to return to work on December 19, 2007 following her leave of absence and by failing to contact the employer to justify her absence from work on or after December 19, 2007. The applicant contends that the January 28, 2008 decision to terminate the claimant's employment was discriminatory on the basis of race, age and sex.

9The applicant also contends that the respondents mistreated the claimant when she attended at the workplace on April 28, 2008, including, among other things, by refusing to let her speak to a union representative. The applicant alleges that such mistreatment constituted discrimination on the basis of race, age and sex.

10On or about June 2, 2008, the claimant filed a grievance against the employer in respect of the January 2008 termination of her employment through her trade union, United Food and Commercial Workers, Locals 175 and 633 ("the union").

11On June 4, 2008, the employer made a without prejudice offer to settle the grievance. Specifically, the employer offered to reinstate the claimant to employment on certain conditions, including that the claimant acknowledge that her employment would be terminated in future if she failed to return to work following an approved leave of absence without contacting the company in accordance with its call-in procedures; and that she provide documentation substantiating her absence from work during the period in question and deeming her fit to return to work.

12The claimant refused to accept the employer's offer to settle her grievance. The applicant alleges that the proposed terms of reinstatement constituted discrimination on the basis of race, age and sex and/or reprisal against the claimant.

13On June 27, 2008, the employer wrote a letter to the claimant's trade union denying the claimant's grievance and advising that its June 4, 2008 offer to settle the grievance would be open for acceptance until July 18, 2008.

14As the employer's June 4, 2008 offer was never accepted by the claimant and/or her trade union, it expired on July 18, 2008.

15On July 21, 2008, the union wrote to the claimant to advise that the employer had denied her grievance and that the union had decided not to proceed to arbitration with it. The union also advised the claimant of her right to appeal the union's decision.

16The claimant indicated that she wished to appeal the union's decision. However, the internal appeal of the union's decision continued to be outstanding as of the date of the hearing in this matter. This was apparently due to the claimant's unavailability to attend the appeal because she was out of Canada much of the time from July 21, 2008 to the date of the hearing in this matter.

ANALYSIS AND DECISION

17Sections 34(1) and (2) of the Code provide that an applicant may not apply to the Tribunal more than a year after the incident or the last in a series of incidents to which the Application relates unless the Tribunal is satisfied that the delay was incurred in good faith and that no substantial prejudice would result to anyone affected by the delay.

Timeliness of the Application

18The first issue is whether the Application was filed within a year of the last in a series of "incident[s] to which the Application relates" within the meaning of s.34(1) of the Code. If so, the Application is timely and may not be dismissed on the basis of delay.

19An earlier Interim Decision in this matter incorrectly stated that the Application had been filed on June 17, 2009. In fact, the Tribunal's date stamp indicates, and the applicant agrees, that the Application was filed on June 30, 2009.

Whether Ongoing Steps In Grievance Procedure Are "Incidents" To Which Application Relates

20Although in the Application the applicant identified the date of the last event upon which the Application is based as "end of June 2008", the applicant now contends the incidents to which the Application relates are ongoing, and that the Application is therefore timely.

21Specifically, the applicant contends that every step during the grievance process is an "incident to which the Application relates" within the meaning of s. 34(1) because the facts underlying the Application and the June 2008 termination grievance are the same. The applicant further submits that the grievance process in respect of the June 2008 grievance is ongoing because the appeal of the union's decision not to refer the grievance to arbitration is still pending. On this logic, the incidents to which the Application relates are still ongoing, argues the applicant, and the Application cannot be considered untimely at all.

22It is not clear to me that the grievance procedure is ongoing simply because the claimant has appealed the union's decision not to take the termination grievance to arbitration. That appeal was apparently filed pursuant to the union's internal processes, not the grievance procedure in the collective agreement between the union and the employer. In any event, assuming without finding that the grievance procedure in respect of the grievance is ongoing, I do not agree with the applicant that every step of the grievance procedure is an "incident to which the Application relates" within the meaning of s.34(1) of the Code.

23The Supreme Court has stated that in interpreting statutes, a court or tribunal should take a purposive and contextual approach, reading "the words of an Act … in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament." Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (S.C.C.), [1998] 1 S.C.R. 27 at para. 21.

24The purpose of s. 34(1) of the Code is to ensure that alleged infringements of the Code are brought forward in a timely way so that they can be addressed expeditiously: Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at para. 24. Interpreting s. 34(1) in accordance with its purpose, I find that it requires an Application to be filed within a year of the last alleged "incident" of discrimination, harassment or reprisal upon which it is based.

25This is completely at odds with the interpretation advanced by the applicant. If the applicant's proposed interpretation of s.34(1) were accepted, the timeliness of an Application would not depend on when it was filed in relation to alleged Code infringements, but on when it was filed in relation to steps in parallel legal proceedings. Such an interpretation would defeat the purpose of s.34(1) and is therefore to be rejected.

26Nor does the applicant's proposed interpretation accord with the plain and ordinary meaning of the words in s. 34(1) of the Code. Reading the words in s. 34(1) in their ordinary and grammatical sense harmoniously with the scheme of the legislation, I find that the incidents to which the Application "relates" are the incidents which the Application is "about". The Application is "about" alleged discrimination by the employer. It is not "about" the grievance procedure. The fact that the Application happens to be based on the same facts as a grievance filed on the claimant's behalf by her trade union does not change the fact that the Application "relates" to the alleged incidents of discrimination upon which it is based.

27I must also reject the applicant's submission, in the alternative, that the date of the last incident to which the Application relates was July 21, 2008.

28There was no new "incident to which the Application relates" on July 21, 2008. On that date, the claimant was officially informed that the employer was maintaining its January 2008 decision to terminate her employment. I do not agree with the applicant that the maintenance of the employer's position in that regard may be regarded as a continuing discriminatory act against the claimant. Even if the decision to terminate the claimant's employment in January 2008 was discriminatory, the refusal to reverse that decision during the grievance procedure cannot be viewed as a separate incident of discrimination. See Bish v. Canadian Union of Public Employees, 2011 HRTO 221 at para. 11-12; Mafinezam v. University of Toronto, 2010 HRTO 1495 at para.17.

29On July 21, 2008, the union merely informed the claimant what had transpired during the grievance procedure. For the reasons set out above, I have found that steps during the grievance procedure are not incidents to which the Application relates. It follows that merely informing the claimant about what occurred at a given step of the grievance procedure cannot be an incident to which the Application relates.

Whether Fact that Allegedly Discriminatory Settlement Offer Remained Open for Acceptance an "Incident" to which the Application Relates

30In the further alternative, the applicant submits that the date of the last incident to which the Application relates is July 18, 2008, the date on which the employer's June 4, 2008 offer to settle the termination grievance expired.

31The applicant does not allege that the expiry of the offer was a discriminatory "incident" in and of itself. Rather, the applicant submits that since the employer's allegedly discriminatory offer remained open for acceptance until July 18, 2008, an "incident to which the Application relates" occurred up to and including on July 18, 2008.

32The respondents challenge the notion that the employer's June 4, 2008 offer to settle the grievance may be construed as an "incident to which the Application relates" within the meaning of s.34(1). The respondents submit that the June 4, 2008 offer is covered by settlement privilege and therefore may not be referred to or relied upon in order to found a claim of discrimination under the Code. Even if the June 4, 2008 offer to settle the grievance could be construed as an incident to which the Application relates, the respondents submit that the mere fact that the employer's offer was open for acceptance until July 18, 2008 does not mean that an "incident" occurred up to and including on July 18, 2008.

33Leaving aside the issue whether the offer to settle the grievance was privileged and therefore incapable of founding a claim under the Code, I am not persuaded that the fact that the employer's offer was available for acceptance after it was communicated on June 4, 2008 means that an incident to which the Application relates occurred after that date.

34The respondents argue, and I agree, that in order for an "incident" to occur, something has to happen. This is consistent with the definition of "incident" in The Pocket Oxford Dictionary of Current English, 7th ed. (Oxford: Clarendon Press, 1984) as an "event or occurrence".

35In this case, there was no event or occurrence after the employer communicated its June 4, 2008 offer to settle the grievance. I agree with the employer that the mere fact that the employer's offer remained open for acceptance for a period of time after June 4, 2008 does not mean that an "incident" occurred after the offer was communicated. The last incident of alleged discrimination to which the Application relates occurred on June 4, 2008; and the June 30, 2009 Application was therefore untimely.

36In reaching this conclusion, I am mindful of the fact that one thing did "happen" after the employer made its offer on June 4, 2008. Specifically, on June 27, 2008, the employer wrote to the union to extend its settlement offer to July 18, 2008. However, this cannot be regarded as an "incident to which the Application relates" because the claimant was not even aware of the June 27, 2008 letter until it was disclosed pursuant to the Tribunal's processes in March 2010, long after the Application was filed. In any event, even if I were to regard June 27, 2008 as the date of the last incident to which the Application relates, the June 30, 2009 Application would still be untimely.

37The Application was not filed within one year of the last incident of alleged discrimination upon which the Application is based. Accordingly, in order to proceed with the Application, the applicant must satisfy the Tribunal that the delay in filing the Application – however brief – was incurred in good faith: African Canadian Legal Clinic v. Legal Aid Ontario, 2010 HRTO 1255 at para.15.

Whether Delay in Filing Application Incurred in Good Faith

38In order to satisfy the Tribunal that the delay was incurred in good faith, an applicant must provide the Tribunal with a reasonable explanation why he or she failed to pursue his or her rights under the Code in a timely manner.

39Having carefully considered the matter, I am not satisfied the delay in filing the Application was incurred in good faith.

40The applicant submits that the main reason for the delay in filing the Application was because the claimant wanted to wait and see if her human rights issues could be resolved through the grievance process before filing her Application with the Tribunal. This is not a reasonable explanation for the delay.

41Nothing prevented the applicant from filing a timely Application under the Code while the claimant continued to pursue her June 2008 grievance. In any event, the claimant knew by no later than July 2008 that the employer had denied the June 2008 grievance and that the union would not be pursuing it to arbitration. At that point, there was ample time to file a timely Application.

42This Tribunal has repeatedly rejected the submission that waiting for another legal proceeding to conclude before pursuing one's rights under the Code constitutes a good faith reason for delay in filing an Application. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670 at para. 23; Persaud v. Toronto Community Housing Corporation, 2010 HRTO 1315 at para. 34; Kumar v. Unilever Canada, 2010 HRTO 1113 at 13-14; Cartier v. Securitas Canada, 2010 HRTO 546 at para 14-15; Hatibovic-Kofman v. Royal College of Dental Surgeons of Ontario, 2010 HRTO 1578 at para. 9; Hassell v. Parkdale United Church, 2010 HRTO 991 at para 40.

43The applicant also submits that there was delay in filing the Application because the claimant was out of the country "on and off" during 2008 and 2009. The applicant, who was in Canada, submits that this made it more difficult for him to communicate with the claimant and to prepare the Application on her behalf. This is also not a reasonable explanation for the delay in filing the Application.

44The applicant submits that he and the claimant communicated by telephone and through the internet about the Application while the claimant was out of the country. Even if it was "more difficult" for the applicant to prepare and file the Application while the claimant was out of the country, I have no explanation why he could not have filed the Application during one of the periods when the claimant was in Canada or during the one year period permitted by the Code.

45The applicant has not provided a reasonable explanation for the failure to file a timely Application under the Code. The Tribunal is therefore not satisfied that the delay in filing the Application was incurred in good faith. As I am not satisfied that the delay in filing the Application was incurred in good faith, it is not necessary for me to determine whether allowing the Application to proceed would cause substantial prejudice to anyone affected by the delay.

46The Application is dismissed.