HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Donna Cameron
Applicant
-and-
International Brotherhood of Electrical Workers — Local 120, John Gibson, Phillip Fleming and Edwin Hill
Respondents
Adjudicator: Brian Cook
Indexed as: Cameron v. International Brotherhood of Electrical Workers, Local 120
WRITTEN SUBMISSIONS
Donna Cameron, Applicant: Self-represented
International Brotherhood of Electrical Workers — Local 120, John Gibson, Phillip Fleming and Edwin Hill, Respondents: Graham Williamson, Counsel
DECISION
INTRODUCTION
On February 19, 2013, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The Application alleged that the applicant was not given a position as a union organizer in 2007 and that this decision contravened the Code.
At about the same time that the applicant filed the Application with this Tribunal, the applicant filed an Application Regarding Union's Duty of Fair Representation with the Ontario Labour Relations Board, which named the same respondents.
On March 26, 2013, the Tribunal issued a Notice of Intent to Dismiss because it appeared that the Application was not filed within one year of the last incident of alleged discrimination. The applicant was invited to make submissions.
The applicant filed submissions in response to the Notice of Intent to Dismiss. She indicated that the Application was filed in regard to a series of incidents that started in 2007 and continued to the date the Application was filed.
On May 16, 2013, the Tribunal issued a Case Assessment Direction directing the respondents to file a Response to the Application and to address the issue of the timeliness of the Application and also whether the Application should be deferred to the proceeding before the Ontario Labour Relations Board (OLRB). The applicant was directed to provide a Reply to the Response.
These documents have now been received.
DEFERRAL
- The respondents advise that the applicant's Application to the OLRB was dismissed because the Board found it did not have jurisdiction to deal with the allegations. The respondents indicate that the applicant has submitted a request to reconsider with the OLRB but also indicate that they are not asking this Tribunal to defer the Application because of the proceeding at the OLRB.
TIMELINESS
- Section 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.
The applicant alleges that in 2007 she was offered a job as union organizer but that the offer was then rescinded. She alleges that the reason the offer was rescinded is that she is a woman and that her right to be free of discrimination under the Code on the basis of sex was accordingly infringed.
The applicant made a number of complaints about this utilizing dispute resolution mechanisms established by the union. There were a number of proceedings. The applicant alleges that these proceedings took an inordinate amount of time, causing her to eventually file the Application with this Tribunal and the Application with the OLRB. She has provided documentation to show her continued attempts to have her concerns addressed.
The applicant also indicates that in early 2008 she contacted the Ontario Human Rights Commission to complain about the matter. She was advised that nothing could be done but that a file might be opened.
CONCLUSIONS ON TIMELINESS
It is apparent that the underlying allegation in this case relates to events in 2007 when the applicant was not offered a job as union organizer. Those events obviously happened well more than one year before the Application was filed in 2013.
The applicant suggests that there has been a series of incidents of discrimination since 2007. The Tribunal has found that the following criteria help determine if there has been a "series of events" within the meaning of section 34 of the Code.
a. What is the last alleged incident of discrimination to which the Application relates?
b. Do the allegations relate to a series of separate and independent incidents of discrimination or do they relate to the continuing effect of a single incident of discrimination?
c. What is the nature or character of the alleged discrimination and is it part of a pattern or series of incidents of a similar nature or character?
d. What is the temporal gap between alleged incidents of discrimination?
In this case, it does appear that the applicant has been engaged in continued and ongoing union dispute resolution processes. It is evident that she has not been satisfied with the outcomes of these processes. There is no suggestion or evidence that the processes themselves have infringed the applicant's Code-protected rights. While there is evidence that the applicant has continued to pursue the issues, there is no evidence of a "series of events" within the meaning of section 34(1) of the Code.
The applicant could still bring the Application about the events in 2007 if she could show a good faith explanation for the delay and if no prejudice would result to the respondents.
The applicant suggests that the fact that she had pursued the internal union dispute resolution processes provides a good faith explanation for the delay in filing the Application.
The Tribunal has held on many occasions that pursuing other legal avenues does not establish a good faith explanation for delay in filing an Application. (see, for example: Jeffrey v. Oxford (County), 2010 HRTO 1048 [CHRR Doc. 10-1238] and the cases cited in that Decision).
I conclude that the applicant has pursued the internal union dispute resolution processes does not provide a good faith explanation for the delay in filing the Application.
I also find that the fact that the applicant contacted the Ontario Human Rights Commission does not establish a good faith explanation for the delay. Section 35 of the Code established a procedure for how complaints made to the Commission before June 1, 2008, when this Tribunal was created, could be transitioned to this Tribunal. It is not clear that a file was in fact established at the Commission. In any event, the fact that the applicant contacted the Commission in 2008 does not provide a good faith explanation for the delay in filing the Application in 2013.
DECISION
- For these reasons, the Application is dismissed for delay.
Dated at Toronto, this 23rd day of July, 2013.
"Signed by"
________________________________
Brian Cook
Vice-chair