HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Henry Checko
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Natural Resources, the Ontario Public Service Employees Union, and Mark Barclay
Respondents
INTERIM DECISION
Adjudicator: Eric Whist
Indexed as: Checko v. Ontario (Natural Resources)
1This Application, which was filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleges discrimination in employment on the basis of disability. This Interim Decision addresses requests made by the respondents that the Application be dismissed pursuant to section 45.1 of the Code or on the basis of delay pursuant to section 34 of the Code.
BACKGROUND
2The applicant was employed by the Ministry of Natural Resources (the "institutional respondent"). During his employment, the Ontario Public Service Employees Union ("the "union") was the applicant's bargaining agent and the applicant was covered by the terms of the Collective Agreement between the union and the institutional respondent. The applicant retired from his position with the institutional respondent on April 30, 2010.
3The applicant filed a number of grievances in 2009 relating to his job classification as a Resource Technician III. The applicant was of the view that he had been improperly classified. These grievances were referred to the Grievance Settlement Board and were scheduled for mediation on April 14, 2010. Mark Barclay, the personal respondent, was assigned by the union to act on its behalf during this mediation.
4The Grievance Settlement Board assigned a Vice-Chair to conduct the mediation. The union asserts that the Vice-Chair heard from both parties (including both the union and the applicant) as to the content and issues raised by the grievances, and made clear to the parties that, in the Vice-Chair's view, there was virtually no likelihood that the grievances would be found to be arbitrable as the specific remedies being sought were prohibited by statute. The union asserts that it shared the Vice-Chair's assessment of the likelihood of success of the grievances. On April 14, 2010 the applicant withdrew his grievances.
5The Application alleges that the applicant did not intend to withdraw his grievances but that he was pressured and intimidated into withdrawing. The Application alleges that both the union and the institutional respondent were aware at the time that the applicant had a mental disability. The Application alleges that the union was aware that the applicant was on medication and that his mental and emotional condition and disability prevented him from thinking clearly and making an informed decision about his grievances. The Application alleges that the institutional respondent accepted the withdrawal of the applicant's grievance knowing that he had been forced and intimidated into making such a decision.
6The Application alleges that the applicant subsequently attempted to contact the personal respondent and the union to indicate that he believed he had been discriminated against because of his disability when he withdrew his grievances on April 14, 2010, and that he was requesting that his grievances be reopened. The Application contends that the applicant received no responses to his repeated communications to the union and the personal respondent, notwithstanding that he provided medical information to support his contention that his disability affected his ability to make decisions.
7On June 27, 2011 the applicant filed an application with the Ontario Labour Relations Board ("OLRB") alleging that the union had violated its duty of fair representation. The applicant filed his Application with the Tribunal on June 29, 2011. The union submits that the two applications are virtually identical.
8On October 27, 2011 the OLRB dismissed the applicant's OLRB application.
REQUESTS FOR DISMISSAL
9Both the union and the intuitional respondent requested in their respective Responses that the Application be dismissed.
10The union requests that the Application be dismissed pursuant to section 45.1 of the Code. Section 45.1 states:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
11The union submits that filing an application with the OLRB as well as making subsequent written submissions to the OLRB constitutes a proceeding within the meaning of section 45.1. The union submits that the substance of the Application was appropriately dealt with given that the OLRB dealt with an application virtually identical to the applicant's Application (including the allegation of discrimination. The union submits that the Supreme Court of Canada's decision in British Columbia (Workers Compensation Board) v. Figliola, 2011 SCC 52 makes clear that the applicant cannot relitigate a decision made by a different administrative tribunal and that if he had been dissatisfied with the OLRB's decision he should have engaged the judicial review processes available and intended by the legislature.
12The union also requests that the Application be dismissed for delay pursuant to section 34 of the Code. Section 34 of the Code states that:
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.
13The union submits that the incident that gave rise to the Application occurred on April 14, 2010 when the applicant withdrew his grievances. The Application is not filed until June 29, 2011 more that one year after the alleged incident of discrimination. The union submits that while there was some subsequent contact between the applicant and the union, this contact does not constitute further incidents of discrimination. The union submits that the Tribunal has no jurisdiction to deal with a complaint filed more than one year after the last of a series of incidents unless it is satisfied that the delay was incurred in good faith as allowed for in section 34(2). The union submits that the applicant has provided no explanation for the delay in filing of the Application that would establish that the delay was incurred in good faith.
14The institutional respondent requests that the Application be dismissed against it for delay as it was filed more than one year after the last incident of discrimination and the applicant has failed to provide a reasonable explanation for this delay. The respondent further requests that the Application be dismissed on the basis that it fails to disclose a prima facie case of discrimination. It submits that the applicant has failed to establish a link between his membership in a protected group and any negative impact the institutional respondent's conduct may have had on him by virtue of the institutional respondent accepting the applicant's withdrawal of his grievances.
15The applicant filed a Reply to the respondents' Responses in which he responded to the requests for dismissal. The applicant submits that section 45.1 of the Code does not apply in that the substance of his Application was not addressed by the OLRB given that it dismissed his application to the OLRB on a preliminary basis without examining whether he was discriminated against. The applicant submits that the substance of his Application has never been considered and that the Tribunal should determine the merits of his case.
16The applicant submits that after April 14, 2010 he continued until at least December 23, 2010 to bring to the attention of the union and the personal respondent his belief that he had been discriminated against and that he wished to re-open his grievances. The applicant submits that the failure of the union and the personal respondent to fully represent the applicant and to reply to his repeated communication in the period up until December 23, 2010 was a breach of their duty to accommodate and constitute further acts of discrimination on the basis of the applicant's disability. Consequently, the applicant submits his Application is timely pursuant to section 34(1). The applicant further submits that his ongoing disability rendered him unable to file his Application within one year of April 14, 2010 and therefore the delay in filing his Application (if any) was caused by his disability and was reasonable and in good faith.
17The applicant submits that his Application should be heard on its merits. He submits that he has established a prima facie case of discrimination, that the respondents knew or ought to have known about his disability at the time he withdrew his grievances, and that the respondents bore a duty to accommodate the applicant at that time. The applicant submits that the respondents used the applicant's disability as an opportunity to get rid of his grievances.
DECISION
18Section 43(2) of the Code provides that the Tribunal shall not finally dispose of an application within its jurisdiction without affording the parties an opportunity to make oral submissions. I have determined, given the circumstances of this matter, that the Tribunal will schedule a half day hearing by teleconference to specifically consider the issues raised in the respondent's requests for dismissal. At the teleconference the parties should be prepared to provide submissions and, if necessary, evidence on the following issues:
i. Whether the Tribunal should dismiss the Application in whole or in part, pursuant to section 45.1 of the Code because the OLRB has appropriately dealt with the substance of the Application; and
ii. Whether the Tribunal should dismiss the Application for delay pursuant to section 34 of the Code.
This preliminary hearing is not intended to address the further issue of whether the Application should be dismissed for failing to disclose a prima facie case of discrimination. The Application will only proceed to be considered on its merits if the Tribunal denies the respondents' requests to dismiss.
19If any party intends to rely upon documentary material, legal authorities or submissions not included in the Tribunal's file, it shall deliver such materials to the other parties and file them with the Tribunal no later than 14 days before the scheduled hearing.
20I am not seized of this matter.
Dated at Toronto this 16th day of January, 2011.
"signed by"______________
Eric Whist
Vice-chair