Daniel Dickson v. General Motors of Canada Limited and Canadian Auto Workers Local 199, 2013 HRTO 1347

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Daniel Dickson Applicant

-and-

General Motors of Canada Limited and Canadian Auto Workers Local 199 Respondents

INTERIM DECISION

Adjudicator: Mark Hart Date: August 2, 2013 Citation: 2013 HRTO 1347 Indexed as: Dickson v. General Motors of Canada Limited

APPEARANCES

Daniel Dickson, Applicant Philton Moore, Counsel

General Motors of Canada Limited, Respondent David Bannon, Counsel

Canadian Auto Workers, Local 199, Respondent Keith Osborne, Representative

1These are two Applications filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The first Application was originally filed on August 31, 2011, as against General Motors of Canada Limited (the “Employer”), alleging discrimination with respect to employment because of disability. The second Application was originally filed on December 15, 2011, as against Canadian Auto Workers Local 199 (the “Union”), alleging discrimination with respect to membership in a vocational association because of disability.

2The purpose of this Interim Decision is to address various preliminary issues raised by the respondents, including whether part of the Application against the Employer should be dismissed pursuant to s. 45.1 of the Code or as an abuse of process; whether portions of the Applications as against both respondents should be dismissed for delay; whether all or some of the Application against the Union should be dismissed as having no reasonable prospect of success; and whether this proceeding should be deferred pending a grievance process. It also addresses a number of issues related to the pleadings filed to date and provides directions to the parties arising from this Interim Decision with respect to filing new pleadings.

Background

3The applicant was an employee of the Employer at its St. Catharines facility since 1984. He states that he began experiencing problems with depression in 1999, which caused intermittent periods of extended absence from the workplace. In December 2001, the applicant was terminated due an alleged failure to provide appropriate medical documentation to support his continued absence. The applicant alleges that his inability to respond to requests for medical documentation was attributable to his depression. He ultimately was reinstated in late October 2002 with no payment for monies lost.

4The applicant thereafter experienced periods when he would be off work with depression, and would have difficulty in obtaining disability benefits or would be disciplined for being on unauthorized leave due to a lack of medical documentation to support his absences. During this period of time, in 2008, the applicant was sent to an Independent Medical Evaluation where he was diagnosed with major depressive disorder and mixed personality disorder (avoidant and dependent).

5In April 2010, the applicant once again was terminated for being on unauthorized leave and failing to report for work. The termination was grieved by the Union and resulted in a settlement agreement dated May 20, 2010, whereby the applicant was reinstated but once again with no compensation and with a 30-day disciplinary suspension. The applicant alleges that the settlement agreement was not in his best interests, and was only agreed to by him because of the nature of his mental disabilities.

6The applicant returned to work, but once again went off on disability leave as of May 11, 2011. During the time he was off, he was granted benefits for the period from May 12 to June 20 and from August 15 to September 13, 2011, but denied benefits for the intervening period on the basis of a lack of sufficient medical documentation to support his absence.

7The applicant was hospitalized from August 15 to 17, 2011. Upon his discharge, the treating psychiatrist at the hospital, Dr. Pallen, prepared a report stating that the applicant was strongly advised to stop using cannabis, which can cause depression and complicate treatment with anti-depressants. The applicant was strongly advised about the need to go for treatment for his cannabis abuse. It was noted that the cannabis abuse may be the cause of his mood disorder. The applicant is recorded as saying that he would discuss this with his physician. The applicant denies that he has a substance abuse problem.

8Due to this report, the applicant was advised by Sun Life, which administers the Employer’s sickness and accident benefits plan, that in order to consider disability benefits beyond September 13, 2011, the applicant must be admitted to a recognized alcohol and drug rehabilitation treatment program. As the applicant states that he does not have a substance abuse problem, he did not attend such a program.

9As a result, the applicant was considered to be on unauthorized leave by the Employer. By letter from the Employer dated October 26, 2011, the applicant was advised that he was currently off work without authorization as he had failed to submit medical evidence to support his continued sick leave. Accordingly, the applicant was told that he was expected to report to work on his next scheduled shift, or face contractual separation pursuant to the collective agreement.

10The applicant did not report for work, which he states would have been against his doctor’s advice, and so was contractually separated by the Employer on November 2, 2011.

11On November 7, 2011, the Union filed a grievance on the applicant’s behalf challenging the termination of his employment. To date, this grievance has not been referred to arbitration.

12As stated above, the application as against the Employer was filed on August 31, 2011 and the application as against the Union was filed on December 15, 2011.

Preliminary issues

13A teleconference hearing was held on June 7, 2013 to address the following issues raised by the respondents:

a. Whether the allegations in the Application as against the Employer pertaining to events leading up to and encompassing the settlements arising from the contractual separations in 2001 and 2010 should be dismissed pursuant to s. 45.1 of the Code as already having been appropriately dealt with in another proceeding or as an abuse of process in light of the settlements;

b. Whether the part of the Application as against the Employer pertaining to allegations that pre-date August 31, 2010 (which is one year prior to the date the Application was originally filed) should be dismissed for delay;

c. Whether the part of the Application as against the Union pertaining to events that pre-date one year prior to the date when the Application was filed (namely events that pre-date December 15, 2010) should be dismissed for delay;

d. Whether allegations in the Application as against the Union should be dismissed as having no reasonable prospect of success; and

e. Whether the Application as it pertains to events leading up to the November 2011 contractual separation should be deferred pending the grievance process.

Section 45.1 and Abuse of Process

14On April 16, 2010, the applicant was contractually separated from employment pursuant to the provisions of the collective agreement for being absent for more than three working days without properly notifying management. The Union filed a grievance (Grievance 12095) on the applicant’s behalf on April 19, 2010, seeking reinstatement and payment of all lost monies. The applicant’s position is that, because of his major depressive disorder, he was incapable of complying with the Employer’s requirement for him to file medical documentation supporting his continued absence in a timely manner.

15The parties, including the applicant, met to discuss the grievance on May 20, 2010. On that date, the parties reached an agreement, signed by the applicant and the Union, whereby the applicant was reinstated, with his contractual separation converted to a 30-day disciplinary suspension, which ran until June 22, 2010. The applicant did not receive any back pay or other benefits for his lost time.

16The agreement, which was titled “Conditions of Reinstatement”, was stated to be a “full and final settlement” and included the following term:

Grievance 12095 and all grievances, written or otherwise are withdrawn without prejudice or precedence by the Union to any future action the Company may wish to take in a similar situation.

17In the Application filed with this Tribunal, the applicant seeks to raise the allegation that his contractual separation from employment in April 2010 and the terms of the settlement agreement itself constitute discrimination in employment because of disability in violation of the Code. The applicant also seeks to raise a number of other allegations, dating back to 2001, which precede the date of the settlement agreement.

18This Tribunal has repeatedly held that it is an abuse of process for an applicant to seek to raise before this Tribunal allegations that were the subject of a settlement agreement: see for example Solcan v. Kitchener (City), 2011 HRTO 2205 at paras. 41 and 42 and the cases cited therein. As stated in Solcan, the doctrine of abuse of process can be applied even where the settlement does not include a full and final release, where it is apparent that the parties intended to resolve all outstanding employment issues: “the question is whether it would be unfair to permit the proceeding to continue having regard to the terms of the memorandum of settlement and all of the surrounding circumstances”: see para. 42.

19In the instant case, the agreement was stated to be a “full and final settlement” and included a provision whereby not only the specific grievance at issue (Grievance 12095) but also “all grievances, written or otherwise” were withdrawn. In my view, it is clear from the settlement agreement that the parties intended to resolve the issues giving rise to the applicant’s contractual separation from employment in April 2010. Moreover, in my view, the reference to the withdrawal not only of Grievance 12095 but also “all grievances, written or otherwise” further evinces an intention on the face of the settlement agreement to resolve all outstanding employment issues as of May 20, 2010.

20In these circumstances, in my view, it would be unfair to allow the applicant to re-raise the issues arising up to and including May 20, 2010 in the proceeding before this Tribunal. Once a full and final settlement of a grievance and other outstanding employment issues has been reached, an employer is entitled to rely upon that settlement as an end to potential litigation. This is particularly the case where an employee, like the applicant in this case, has received and taken the full benefit of the settlement agreement, in this case reinstatement, to which the employer would not have agreed but for the consequence that reinstatement would bring the grievance and other outstanding issues to an end and not expose the employer to further litigation. To hold otherwise would inject significant uncertainty in the process of grievance resolution. If an employer is not entitled to rely upon a settlement agreement to bring an end to litigation, it would be reluctant to enter into such agreements, to the detriment not only of the employer but also of unions and their members. Such a result would not be in the interest of fostering good labour relations and would be unfair to all parties involved.

21The real question here is whether there is good reason to set aside the settlement agreement. The applicant takes the position that he was mentally incapable of entering into the settlement due to his disabilities. The applicant suffers from recurrent and episodic major depressive disorder as well as underlying avoidant personality disorder and dependent personality disorder. The applicant relies primarily upon the criteria for dependent personality disorder as set out in the DSM-IV, and particularly the following criteria:

• Has difficulty making everyday decisions without an excessive amount of advice and reassurance from others

• Needs other to assume responsibility for most major areas of his or her life

• Has difficulty expressing disagreement with others because of fear of loss of support or approval

• Goes to excessive lengths to obtain nurturance and support from others to the point of volunteering to do things that are unpleasant

22In essence, the applicant states that because of the nature of his dependent personality disorder, he felt pressured or coerced into agreeing to a settlement that was not in his best interests.

23While I certainly understand the theory behind the applicant’s position, the problem is that the applicant has not submitted any medical evidence to this Tribunal to support the assertion that, on May 20, 2010, these specific attributes of his dependent personality disorder in fact caused him to enter into a settlement agreement that he otherwise would not have agreed to.

24Further, there is no medical evidence before this Tribunal to indicate that the applicant possesses these specific characteristics of dependent personality disorder, or the degree to which he may possess them. In this regard, I note that the DSM-IV specifies that a diagnosis of dependent personality disorder may be made on the basis of five or more of eight criteria. Accordingly, the four criteria relied upon by the applicant are not necessarily present with every diagnosis of dependent personality disorder.

25The applicant relies upon an independent medical evaluation report prepared by a psychiatrist, Dr. Porter, dated March 13, 2008 to support that he has dependent personality disorder. In this report, Dr. Porter does diagnose the applicant with a mixed personality disorder (avoidant and dependent). With regard to avoidant personality disorder, Dr. Porter specifically identifies the criteria from the DSM-IV that support his diagnosis. With regard to dependent personality disorder, Dr. Porter states only that the applicant “also endorses sub-threshold criteria for Dependent Personality Disorder”. No specific criteria are identified.

26The applicant also points to reports from his psychologist, Dr. Bilecki, from 2002. In his report dated February 1, 2002, Dr. Bilecki refers to the applicant as suffering from moderate to high levels of anxiety and depression. At this time, the applicant reported to Dr. Bilecki that he had recently been advised that the Employer intended to fire him. The Employer states in its Response that the applicant was contractually separated on December 3, 2001, and reinstated by agreement on October 28, 2002. In his February 1, 2002 report, Dr. Bilecki states that his interview with the applicant “indicated the presence of clinical levels of anxiety and depression”. In this context, Dr. Bilecki states:

In terms of cognition, Dan is obsessed with personal deficiencies. He feels useless. Memory problems are present. It is hard for him to concentrate. He gives up quickly when faced by stress. Decision making is almost impossible for him. He is pessimistic and hopeless.

27In a later report dated September 4, 2002, Dr. Bilecki states that the applicant’s depressive disorder has made it exceptionally difficult for him to engage in many activities of daily living, including the completion of forms for his employer. Dr. Bilecki further states that the applicant’s “depression was very significant and the presence of this disorder made it most difficult for him to do anything in his life, including responding to issues raised by the employer”.

28In my view, the statements made by Dr. Bilecki in his two 2002 reports clearly relate to the applicant’s mental health condition as it existed at that time. These reports cannot properly be read to suggest that at all times and for all time decision-making is impossible for the applicant or that he is always incapable of responding to issues raised by the employer. These reports are situated within the time and circumstances when they were written.

29I appreciate the argument raised by applicant’s counsel that while the applicant’s depression may be episodic and may wax and wane over the course of time (which is amply supported by the medical evidence before me), his dependent personality disorder is consistently and continually present. That may be. But what is missing from the medical documentation before me is a definitive statement by a qualified medical practitioner that speaks directly to the issue of whether the applicant’s dependent personality disorder, or any other mental health condition, caused him to enter into the settlement agreement on May 20, 2010.

30In order to succeed with an assertion that, because of a mental disability, the applicant was incapable on May 20, 2010 of agreeing to the terms of a settlement that was reviewed with and signed by him, there needs to be specific medical evidence that supports such an assertion. It is not enough to point to a diagnosis of dependent personality disorder made over two years earlier and which does not identify the specific criteria from the DSM-IV that support this diagnosis, or the degree to which the applicant possesses the identified criteria. It is not enough for the applicant, in the absence of such medical evidence, to pick from the list of potential criteria set out in the DSM-IV and theorize about the criteria that might most suit his argument. And it is not enough to rely upon such generalized theories without specific medical evidence that speaks to the relevant date, namely May 20, 2010, and squarely addresses the relevant issue, which is whether the actual criteria supporting the applicant’s diagnosis of dependent personality disorder in fact caused him to enter into a settlement agreement that he would not otherwise agree to.

31In his submissions at the teleconference hearing, applicant’s counsel submitted that such evidence would be forthcoming at the hearing on the merits. That is not a sufficient explanation for the absence of such evidence for the purpose of the teleconference hearing that was set up by Case Assessment Direction dated February 4, 2013 specifically to address, among other things, the issue of whether certain allegations raised by the applicant were barred as a result of the settlement agreement, particularly where the parties were invited to file documentation relevant to the issues to be determined in advance of the teleconference hearing. If such medical evidence was capable of being obtained, the time to bring such evidence forward was in advance of the teleconference hearing, not to wait for the hearing on the merits.

32The applicant also takes the position that the settlement agreement did not address the human rights issues he has raised in his Application before this Tribunal. I do not accept this argument. The specific issue raised in Grievance 12095 was that it was improper for the Employer to have applied the contractual separation provision to the applicant. The basis for this contention was that the applicant’s disability prevented him from filing the documentation required to support his continued absence in a timely fashion. This is the very same allegation raised in the Application before this Tribunal.

33In any event, the settlement agreement was described as a “full and final settlement” and all outstanding grievances were withdrawn. As I have found above, this in my view evinces an intent on the part of all parties to fully and finally resolve all outstanding employment issues, which would include any human rights issues arising out of the employment relationship. It is not this Tribunal’s role to assess the appropriateness of the settlement agreement between the parties or to consider whether the settlement agreement addresses all of the issues raised in the Application. Rather, the issue to be determined is whether the settlement agreement is legally binding and final: see King v. Ontario (Health and Long-Term Care), 2011 HRTO 2228.

34Applicant’s counsel points to the fact that the settlement agreement did not provide any financial compensation for the applicant. That is true. But the applicant was reinstated to his employment, which represents a significant financial benefit to him and provides more than ample consideration to support the agreement.

35Applicant’s counsel points to the first paragraph of the settlement agreement to contend that the settlement was “without prejudice” and therefore does not prevent the applicant from proceeding with his Application. That is, in my view, a clear misreading of this provision. This provision states that grievances are withdrawn “without prejudice or precedence by the Union to any future action the Company may wish to take in a similar situation”. This is a common provision in settlement agreements between employers and unions. Generally, such terms mean that the union and the employer cannot rely upon the settlement of a particular grievance to govern how a similar case may be dealt with in the future. It does not purport to give the employee carte blanche to take the full benefit of the settlement and then go on to claim more in another legal proceeding.

36Applicant’s counsel also relies upon this Tribunal’s case law finding that it is not contrary to s. 45.1 of the Code and does not constitute an abuse of process for an Application to proceed where a grievance has been withdrawn by the union: see Poste v. Metro Ontario Inc., 2012 HRTO 2128; Yakymova v. Slovenian Linden Foundation, 2012 HRTO 1075; Dupuis v. Religious Hospitaller of St. Joseph of Cornwall, 2010 HRTO 1079. These cases involve situations where a grievance has been withdrawn by the union without the grievor’s consent or agreement. This case law does not apply to a situation like the instant case where the withdrawal of grievances forms part of a settlement agreement signed by the applicant whereby he receives a substantial benefit in return.

37Applicant’s counsel further argues that the settlement agreement as entered into by the parties contains discriminatory provisions, namely the requirement that the applicant obtain prior authorization for any absence and provide appropriate documentation to substantiate any absence immediately upon his return to work. It is asserted that, due to his mental health condition, the applicant is incapable of complying with these requirements. That is not at all clear to me. I accept that there may be occasions when the applicant is experiencing a depressive episode when he may be incapable obtaining prior authorization for an absence or providing documentation immediately upon his return. Such a situation may have occurred prior to his contractual separations in December 2001 or April 2010. But that would not necessarily apply to all absences from work, for example if the applicant came down with a cold or the flu. The issue that might arise would be whether, in respect of any specific future absence, the applicant’s disability rendered him incapable of complying with these provisions. In this regard, I note that there is nothing in the material before me to indicate that the Employer has ever sought to rely upon these provisions of the settlement agreement to take adverse action against the applicant.

38In any event, the existence of these provisions does not serve to vitiate the settlement agreement so as to allow the applicant to proceed with the allegations in his Application pertaining to events on or before May 20, 2010. The fact remains that the parties entered into a settlement agreement which I have found was intended to resolve all outstanding employment issues, and the applicant took the full benefit of the settlement by returning to work. In these circumstances, it is my view that it would be unfair and an abuse of process to allow the Application to proceed with regard to these allegations.

39Accordingly, I find that the allegations raised by the applicant in this proceeding pertaining to events on or before May 20, 2010 were resolved by the settlement agreement, such that it would be an abuse of process to allow the applicant to proceed with these allegations before this Tribunal. As a result, all allegations in the Application against the Employer pertaining to events on or before May 20, 2010 are hereby dismissed.

40Given this finding, it is not necessary for me to address the parties’ submissions in relation to s. 45.1 of the Code.

41The Employer also raised that it would be contrary to s. 45.1 of the Code or an abuse of process to allow the applicant to proceed with allegations regarding his contractual separation from employment in December 2001, given that the parties had agreed to reinstatement as of late October 2002. As I already have set out above, I have found that these issues were resolved by the May 20, 2010 settlement agreement, if they had not already been resolved previously. Having said that, I have no independent basis to find that proceeding with these allegations would be contrary to s. 45.1 or an abuse of process, as I do not have any separate settlement agreement or other documents dealing with the December 2001 contractual separation or the October 2002 agreement to reinstate. In any event, as will be discussed below, these allegations are also dismissed for delay.

Delay - allegations as against the Employer

42As indicated above, the Employer also seeks an order dismissing all allegations arising from incidents occurring prior to August 31, 2010 (which is one year prior to the date that the Application against the Employer was filed) on the basis of delay. While not strictly necessary to address this request in light of the finding I have already made, I will briefly address the parties’ submissions on the delay issue as it was fully argued before me.

Series of incidents

43The first question to be addressed under s. 34(1) of the Code is whether incidents that occurred prior to August 31, 2010 form part of a “series of incidents” that extends to and includes an incident within one year prior to the filing of the Application.

44The starting point for this part of the analysis is to identify the alleged incidents of discrimination that occurred within one year of the filing of the Application. At the teleconference hearing, I put to applicant’s counsel that, based upon my review of the material, it appeared that there were three alleged incidents of discrimination that occurred within this one-year period:

a. Whether the denial of disability benefits to the applicant during the period from June 20 to August 15, 2011 amounts to discrimination because of disability;

b. Whether the discontinuance of disability benefits to the applicant beyond September 13, 2011 amounts to discrimination because of disability; and

c. Whether the termination of the applicant’s employment on November 2, 2011 amounts to discrimination because of disability.

45I asked applicant’s counsel whether he could identify any other alleged incidents of discrimination raised in the Application that had occurred within the one-year period. With one exception, which I will address below, no further such alleged incidents of discrimination were identified.

46The one exception relates to allegations that the applicant was called a “player”, that his disability was not recognized, and that he was regarded as pretending to have a disability. While there is no doubt that allegations of this nature were raised in the Application, no particulars were provided by the applicant as to when it is alleged that this conduct occurred. This was noted by the Employer in its Response, where it expressly requested particulars and reserved its right to provide a further response if any particulars were forthcoming. Despite filing a 52-page Reply, no particulars regarding this alleged conduct were provided. In advance of the teleconference hearing, the applicant filed a document entitled “Complete chronological summary of events from date of employment” which spans the period from 1984 to January 20, 2012. Nowhere in this document are any particulars of this alleged conduct provided.

47Applicant’s counsel submits that this kind of conduct was going on every time that the applicant was at work, and so I should conclude that it must have been occurring during the period he was at work from June 22, 2010 to May 10, 2011. In my view, no such conclusion is warranted on the basis of the material before me. I appreciate that the applicant states that memory loss and difficulty in his recall of events form part of the symptoms of his depression. Nonetheless, in order to be able to proceed with allegations of this nature, the applicant needs to set forward material facts that have at least some measure of particularity as to approximately when such conduct occurred, what was said or what happened on each occasion, and who was involved. In the absence of at least this degree of particularity, the Employer cannot fairly be able to or be required to respond to such generalized allegations. Moreover, without at least some material facts put forward in the materials to indicate when this alleged conduct occurred, this Tribunal does not have any proper basis to conclude that it occurred within the one-year period.

48In this regard, I note that in his Application against the Union, the applicant did provide some specific dates of events during the period from August 17, 2005 to October 24, 2011, some of which appear to raise allegations as against the Employer. However, there is no specific incident set out by the applicant where the Employer is alleged to have engaged in the kind of conduct referenced above.

49Accordingly, I find that the incidents that occurred within one year of the filing of the Application as against the Employer are the three allegations set out above.

50The next stage of the analysis is to identify the alleged incidents of discrimination that occurred beyond the one-year period, and assess whether they can be regarded as a “series of incidents” that extends to and includes any of the three allegations within the one-year period.

51The most recent alleged incident of discrimination prior to the three allegations within the one-year period relates to the events leading up to and including the settlement agreement entered into by the parties on May 20, 2010, including the imposition of a 30-day disciplinary suspension that ran to June 22, 2010. In my view, these events are clearly resolved by the settlement agreement. In such circumstances, it may be that an issue that has been resolved is not properly regarded as forming part of a “series of incidents” of alleged discrimination. In any event, even if the April 2010 to June 2010 issues were considered as part of a series of alleged incidents, there still would be a gap of over two years before the next preceding alleged incident.

52The next most recent incidents, while not particularized in the Application against the Employer, appear to relate to events from March 2007 to February 2008 whereby the applicant was either disciplined or threatened with termination for unauthorized absences from work. Details of these allegations appear in the Application against the Union and are supported to some degree by documents filed with the Applicant’s Reply. These events also are noted, albeit briefly and without any detail, in the applicant’s chronological summary. Prior to that, reference is made in the Application against the Union to a letter of expectations provided to the applicant on August 17, 2005 regarding the need for him to speak directly to a supervisor prior to any absence from work. Prior to that, there is the matter of the applicant’s contractual separation from employment in December 2001.

53This Tribunal has held that a gap of more than one year between alleged incidents generally will be considered to interrupt the series: see for example Savage v. Toronto Transit Commission, 2010 HRTO 1360; Chintaman v. Toronto District School Board, 2009 HRTO 1225. I appreciate and agree with the observation that this should not be regarded as a rigid rule: Henry v. Waterloo (Regional Municipality), 2011 HRTO 1927. However, where there is a significant gap between alleged incidents, this Tribunal nonetheless will find that the series is broken: Christie v. Trent University, 2013 HRTO 952.

54In the instant case, there is a gap of about three-and-a-half years between the allegations within the one-year period and the specific alleged incidents during the period between March 2007 and February 2008 (or a gap of over two years if the April to June 2010 issues are considered). There is then a year-and-a-half gap before the next specific alleged incident in August 2005. And there is then an almost four-year gap before the next specific alleged incident in December 2001. In my view, without applying a rigid one-year rule, the gaps between these alleged incidents are significant enough to preclude them from being regarded as comprising a “series of incidents” within the meaning of s. 34(1)(b) of the Code that extends to and includes the three allegations within the one-year period.

Was the delay incurred in good faith?

55Having found that the alleged incidents that occurred more than one year prior to the filing of the Application against the Employer, the next question is whether “the delay was incurred in good faith” within the meaning of s. 34(2) of the Code as that phrase has been interpreted by this Tribunal.

56The onus is on an applicant under s. 34(2) of the Code to satisfy this Tribunal that the delay in filing an application was incurred in good faith. This requires that the applicant provide some reasonable explanation for the delay: Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339. In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, this Tribunal held that an applicant is required to show something more than simply an absence of bad faith. In Miller, above, it was held that the one-year time limit is consistent with the policy objective that human rights claims should be dealt with expeditiously, and requires an applicant to act with due diligence when they seek to pursue a human rights claim.

57Once again, the applicant primarily argues that, because of his mental health issues, he was continuously disabled from being able to file a human rights application throughout the entire period from December 2001 until he obtained the assistance of his mental health worker in August 2011 and was able to do so. Once again, there is no specific medical documentation to support that the applicant was continuously disabled in this manner throughout this entire period. The medical documentation itself supports that the applicant does not suffer from an ongoing, continuous depressive disorder, but rather from one that is recurrent and episodic. As stated by Dr. Bilecki in his January 29, 2008 report, the applicant experiences an “episodic waxing and waning of symptoms” where there are periods of time where his functioning improves and he is able to work.

58The applicant once again relies upon the medical documentation from Dr. Bilecki from 2002, in which it is stated that decision-making is almost impossible for the applicant and that he has difficulty completing forms and responding to issues raised by the Employer. As stated above, this documentation clearly relates to the period of time when the applicant was off work after having been contractually separated from employment in December 2001. Yet the applicant returned to work in late October 2002. This documentation says nothing about the applicant’s mental state and ability to file a human rights application during the succeeding almost 9 years, particularly during the periods of remission of his depression when he was able to return to work.

59The applicant also relies upon the applicant’s dependent personality disorder to assert that this disorder rendered the applicant incapable of filing a human rights application on his own behalf until he was able to obtain the support and assistance of his mental health worker in August 2011. Once again, there is simply no medical documentation to support such an assertion. Moreover, in Dr. Porter’s March 13, 2008 report, a normal day for the applicant is described as including “spend[ing] a lot of time on the phone talking to his union representatives, to Sun Life or to lawyers”. Clearly, as of this time period, the applicant was capable of reaching out for support to his union representatives and lawyers. No explanation has been provided as to why the applicant was not able to obtain any support and assistance he may have required to file a human rights application at that time, some three-and-a-half years prior to when his Application against the Employer ultimately was filed.

60The applicant next asserts that he was misled by a Union official who told him that he had no means of redress outside of the collective agreement unless he was “gay”. This assertion was made for the first time at the teleconference hearing, with no prior notice to the other parties. No information was provided as to when this comment is alleged to have been made or in what specific context. Without any information as to when this comment is alleged to have been made, it is impossible to determine what, if any, impact it may have had on the applicant’s failure to file a human rights application for the simple reason that, depending upon when the alleged statement was made, it would provide no explanation for any delay preceding the making of this alleged statement.

61Clearly, the applicant was able to discover, at least by August 2011, that this alleged statement concerning seeking redress outside of the collective agreement is not true. The question arises, if he was able to find this out at least by August 2011, why was he not able to discover this earlier? What efforts had he made to inquire about his rights? As noted by Dr. Porter, the applicant apparently was talking to lawyers on the phone in 2008 as part of a normal day. What inquiries did he make of the lawyers he was talking to? As noted by this Tribunal, “ . . . it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights”: Lutz v. Toronto (City), 2009 HRTO 1137 at para. 8.

62Finally, the applicant states that Article 24, Section 1 of the CAW Constitution requires a member “to exhaust all internal methods of appeal prior to seeking a remedy in the courts or through a government agency”. The applicant asserts that he was bound by the CAW Constitution which he says banned him from filing a human rights application until he had exhausted all internal rights of appeal. As noted by Employer counsel, there is nothing in the material before me to indicate that the applicant was even aware of this provision of the CAW Constitution. Further, this provision of the CAW Constitution relates to the actions of other union officials or members, and has no bearing upon the applicant’s ability to pursue a human rights complaint against the Employer.

63Having considered all of the material and submissions before me, the applicant has not satisfied me that the delay in filing a human rights application to raise the allegations that pre-date August 31, 2010 was incurred in good faith. As a result, I do not need to consider the issue of whether substantial prejudice will result to the Employer because of the delay.

64For the foregoing reasons, the allegations in the Application against the Employer that pre-date August 31, 2010 are also dismissed for delay. All remaining allegations will proceed in the Tribunal’s process.

Delay - allegations against the Union

65At the teleconference hearing, I misspoke when I stated that the Application against the Union had been filed on June 8, 2012. In fact, this Application originally was filed on December 15, 2011. There was some confusion because the applicant had indicated in one section of the Application form that the facts of the Application were part of another proceeding that was still in progress, referring to the previous Application he had filed against the Employer. This ultimately led to the Application being re-filed on June 8, 2012. However, for the purpose of calculating the one-year period within the meaning of s. 34(1) of the Code, the relevant date for when the Application was made is December 15, 2011.

Allegations against the Union within the one-year period

66As stated above, the first part of the analysis is to identify what allegations against the Union fall within the one-year period extending back to December 15, 2010. It appears to me that there are three allegations that fall within this period.

67First, it is alleged that the Union discriminated against the applicant in relation to its representation of him regarding his return to work following the May 20, 2010 settlement agreement, his absence from work over the summer and fall of 2011, the notice he received from the Employer on October 26, 2011 that he was off work without authorization and was expected to return to work or be contractually separated pursuant to the collective agreement, and the subsequent letter from the Employer dated November 2, 2011 informing him of his contractual separation. Some particulars of his dealings with the Union are set out in the Application and further particulars were provided as part of the chronological summary submitted for the purpose of the teleconference hearing.

68In essence, the allegation is that the Union, and in particular the Local Chairperson, did not regard the applicant’s mental health issues as being sufficiently serious to justify him being off work and questioned the medical advice that he was getting. For example, the applicant’s chronological summary refers to a discussion he had with the Local Chairperson on January 5, 2011, when it is alleged that the Local Chairperson said that the applicant’s depression must not be that bad because he works better when he is on probation, and that the applicant’s doctors were wrong in their assessment of his mental health issues. The chronological summary also refers to a telephone discussion with the Local Chairperson on August 17, 2011, when it is alleged that the Local Chairperson told the applicant to go back to work and got very angry at the applicant and started to bully him. An allegation also is made that the Local Chairperson called the applicant’s family doctor on August 29, 2011 to tell the doctor that the applicant had to go back to work.

69Reference is made both in the Application and the chronological summary to a meeting at the Union hall that was attended by the applicant, the Local Chairperson and others on October 24, 2011. At this meeting, it is alleged that the Local Chairperson told the applicant that he must come back to work and sign an agreement to be disciplined and not be paid for his time off, and that he should not listen to his family doctor who told him that he was not ready to return to work. It is alleged that the Local Chairperson got very angry at the applicant and started bullying him when he said that he would listen to his doctor’s advice. This was followed with a further telephone conversation with the Local Chairperson and others on November 14, 2011, where it is alleged that the Local Chairperson once again told the applicant that he must come back to work, that there was no way he was going to get paid for his time off, and that he also would be disciplined. It is alleged that during this telephone conversation, the Local Chairperson also told the applicant that his family doctor was just a general practitioner and so the applicant should not listen to him. It is alleged that this was followed by a further telephone call from the Local Chairperson once again getting very angry at the applicant and bullying him, and telling him to return to work on the terms discussed.

70Finally, reference is made in both the Application and the chronological summary to a further telephone conversation with the Local Chairperson on November 23, 2011, where it is alleged that the Local Chairperson once again told the applicant to come back to work on the terms discussed and not to listen to his family doctor. It is alleged that the Local Chairperson said that the applicant would get no monies from the Employer ever, not even his severance package, and that the Local Chairperson would make sure of that. The applicant states that the Local Chairperson said that he would hold the process up forever so that the applicant “would not get a damn thing”, and that the Local Chairperson would make sure of that. It is alleged that the Local Chairperson was bullying the applicant, and hung up on him.

71As a result, it is alleged that the Union has not proceeded further with the applicant’s grievance regarding his contractual separation or otherwise assisted him during this period due to discriminatory attitudes about, and disregard for, his mental disabilities. I appreciate that this is denied by the Union and that the Union takes the position that the grievance has not proceeded further because the applicant has not cooperated either by seeking treatment or counselling for any substance abuse problem he may have or by providing it with clear and reliable evidence that he does not have a substance abuse problem. However, at this stage I am merely identifying the nature of the allegations raised by the applicant within the one-year period prior to the filing of his Application against the Union. Later in this Decision, I will consider whether the applicant has a reasonable prospect of success regarding these allegations.

72The second main allegation within the one-year period relates to Article 54(d) of the collective agreement, which provides that “an employee’s seniority shall be broken if the employee fails to report for work within five (5) working days after the expiration of any leave granted to the employee, unless a satisfactory reason is given”. It is alleged that this provision has an adverse impact on the applicant because of his mental disabilities, due to his alleged difficulty in responding to requests for medical documentation to support his absences. It is alleged that the Union, as a party to the collective agreement, shares liability with the Employer arising from the negotiation and implementation of this provision: see Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 at para. 36; Gungor v. Canadian Auto Workers Local 88, 2011 HRTO 1760 at para. 31.

73The third main allegation relates to what it alleged to be either a provision of the collective agreement or a work rule formulated by the Employer and the Union, whereby an employee who is identified as having a substance abuse problem will be denied disability benefits and thus be subject to contractual separation unless the employee attends a recognized substance abuse program. Once again, as I understand it, the allegation is that the applicant does not in fact have a substance abuse problem, and that the application of this provision or rule to him to cut off his disability benefits and require him to return to work or be terminated disregards the nature and impact of his actual mental disabilities and is thereby discriminatory. Once again, the Union is alleged to share liability with the Employer regarding the application of this provision or rule to the applicant on the basis either that the Union agreed to such a provision in the collective agreement or participated with the Employer in the formulation of this work rule.

74During the teleconference hearing, it was submitted by Employer’s counsel that in fact there is no such collective agreement provision or work rule. Rather, it was submitted that the requirement for the applicant to attend a substance abuse program was stated by Sun Life, as the administrator of the sickness and accident benefits provided by the Employer, as part of the application of a common disability benefits requirement that an employee be under the care and treatment of an appropriate physician or specialist.

75The difficulty I have with this submission is that it does not correspond with what is stated in the Employer’s Response or in some of the underlying documents filed with the Tribunal. For example, in para. 67 of the Response, it is stated that “pursuant to the collective agreement, in order to obtain [sickness and accident benefits] where substance abuse is identified, the employee must be admitted to an Alcohol and Drug Rehabilitation Program”. This corresponds with documentation at Tab 12 of the Employer’s Response, regarding the applicant’s appeal from his denial of disability benefits. In Sun Life’s response to the appeal dated November 22, 2011, it is stated that “the presence of the employees’ substance abuse issue precludes [Sun Life] from payment of future benefits until such time as he participates in the Substance Abuse Program offered by the Company and the Union” (emphasis added). Further, in a letter sent to the applicant by the Union dated January 12, 2012, reference is made to the Employer’s statement that the applicant “will not receive any future payment of benefits until [he] participate[s] in and complete[s] the Substance Abuse Program negotiated between General Motors of Canada and the Canadian Auto Workers Union” (emphasis added).

76Accordingly, the material before me suggests that the requirement for an employee who is identified as having a substance abuse problem to attend a recognized substance abuse program or be denied disability benefits and thus be subject to contractual separation, is either a provision in the collective agreement or is part of a substance abuse program jointly developed by the Employer and the Union. Whether or not that in fact is the case is a matter for determination on the basis of evidence led at any hearing in this matter.

Are any allegations against the Union prior to the one-year period part of a “series of incidents”?

77The Application against the Union and the Reply contain very broad and generalized allegations against the Union. For example, in paras. 139 and 140 of the Reply, under the heading “Essential Nature of the Applicant’s Human Rights Application – re, the union (CAW Local 199)”, it is alleged that the essential complaint against the Union is that it discriminated against him because of his disability and, in the course of representing him, did not take into account his disability by: (i) generally failing to recognize or accept his disability; (ii) failing to properly represent him in relation to various aspects of several conditional reinstatement agreements; (iii) failing to properly represent him in relation to various aspects of the handling of his termination grievance including the refusal to proceed to arbitration; and (iv) failing to properly represent him in relation to sick leave benefits.

78What the Application and Reply are devoid of, however, is any particulars as to how the Union is alleged to have discriminated against the applicant in relation to specific events or occurrences prior to the one-year period immediately preceding the filing of the Application on December 15, 2011.

79In reviewing the Application against the Union, the applicant does make reference to a number of specific events during this prior period. However, many of the specific events relate to actions by the Employer or fail to indicate how it is that the applicant is alleging that the Union discriminated against him in relation to these specific events.

80In relation to two specific events, the applicant does make at least some reference to the role of the Union. With regard to his 2002 reinstatement, the applicant alleges that the Union did not argue on his behalf at all, did not bring up medical documentation of his illness, and supported management in having the applicant sign off on the reinstatement agreement. With regard to the May 20, 2010 settlement agreement, the applicant states that Union representatives were present at the meeting where he signed the agreement and that the Union encouraged him to sign the agreement.

81With regard to the latter event, I fail to see how the applicant’s allegations support an allegation of discrimination against him by the Union. It is the Union’s role to be present at such meetings and to provide advice and even encouragement to its members in the resolution of grievances. The applicant may now believe that signing the May 20, 2010 settlement agreement was not in his best interests. But it is not clear whether it was. While he gave up his right to seek compensation for lost benefits during his time off and was required to serve a 30-day disciplinary suspension, he nonetheless was able to obtain reinstatement and was able to return to work for about 11 months and maintain his entitlement to the disability benefits he received when subsequently he was off work. If he had not agreed to the settlement, he would not have been able to return to work and would not have been entitled to future disability benefits when he needed to be off work, which were of significant benefit to him. Instead, he would have had to take his chances at arbitration, if the Union believed it had sufficient evidence to proceed, and may have ended up with a greater remedy or may have ended up with nothing. In these circumstances, the settlement agreement can be viewed as a not unreasonable compromise. In any event, there are no specific allegations in the Application or Reply as to how the Union is alleged to have discriminated against the applicant because of his disability in relation to this settlement agreement, particularly where the agreement states that it was “thoroughly reviewed” with the applicant and where the applicant himself accepted and signed the agreement.

82With regard to the Union’s role in the 2002 reinstatement, and entirely apart from whether the allegations raised are sufficient to support a claim of discrimination by the Union, the nine-year gap between this incident and the incidents within the one-year period is so significant that I cannot properly find that the 2002 incident is part of a “series of incidents” that extends to and includes the alleged incidents of discrimination within the one-year period.

Was the delay in proceeding with the 2002 allegation incurred in good faith?

83For the reasons already articulated above in relation to the allegations against the Employer, the applicant has not satisfied me that the delay in filing a human rights application against the Union to raise the allegations that pre-date December 15, 2010 was incurred in good faith. As a result, I do not need to consider the issue of whether substantial prejudice will result to the Union because of the delay.

84Accordingly, the allegations in the Application against the Union that pre-date December 15, 2010 are dismissed for delay.

Reasonable prospect of success

85In the Case Assessment Direction dated May 31, 2013, it was noted that the Tribunal has held that it is not discrimination for a union or association to decide not to file or pursue a human rights grievance, unless the reason for doing so was based on one of the grounds in the Code. In Traversy v. Mississauga Firefighters’ Association, 2009 HRTO 996, the Tribunal stated as follows at para. 33:

Assuming that the Code also applies to this aspect of a union’s relationship with the employees it represents, 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 may be many reasons that have no discriminatory overtones why a union might choose not to pursue a human rights claim on behalf of an employee: see Baylet v. Universal Workers Union, 2009 HRTO 700. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.

86As set out above, the first main allegation from the one-year period preceding the filing of the Application against the Union is that the Union has not proceeded further with the applicant’s grievance regarding his contractual separation or otherwise assisted him during this period due to discriminatory attitudes about, or disregard for, his mental disabilities. As I have said, I appreciate that this is denied by the Union and that the Union takes the position that the grievance has not proceeded further because the applicant has not cooperated by either seeking treatment or counselling for any substance abuse problem he may have or by providing it with clear and reliable evidence that he does not have a substance abuse problem.

87Nonetheless, on the basis of the applicant’s allegations regarding the content of his discussions with the Local Chairperson during this period, I cannot say at this stage of the proceeding that the applicant has no reasonable prospect of success in establishing at a hearing that his mental disabilities were a factor in how he was treated by the Union. In my view, the applicant has provided a sufficient basis at least on the face of his allegations, as further particularized in his chronological summary, to suggest that discriminatory attitudes on the part of the Union about his mental disabilities may have played a role in the nature and/or extent of representation provided to him. Whether or not that is in fact the case is, in my view, a matter for determination based upon an assessment of all of the evidence led at a hearing.

88With regard to the second main allegation arising from Article 54(d) of the collective agreement, I do not regard this allegation as having any reasonable prospect of success. This provision is not an automatic termination provision as addressed in McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4. Rather, Article 54(d) on its face provides an exception where the employee provides a satisfactory reason for his failure to report for work following the end of an authorized leave of absence. The issue is not the collective agreement provision itself, but rather whether the application of this provision in the circumstances of the applicant’s individual case resulted in discrimination because of disability. This is an allegation that the applicant has raised as against the Employer. However, in my view, there is no reasonable basis upon which to support potential liability of the Union arising from its agreement to this collective agreement provision.

89As indicated above, the third main allegation is alleged to arise from either the collective agreement or a work rule formulated jointly by the Employer and the Union, whereby an employee who is identified as having a substance abuse problem will be denied disability benefits and thus be subject to contractual separation unless the employee attends a recognized substance abuse program. At this stage of the proceeding, and based upon the materials currently before me, there appears to be a contradiction between the submissions made at the teleconference hearing and the statements made in the Response and other documentation. In my view, this contradiction is not appropriately resolved at this preliminary stage, but should be resolved on the basis of a full evidentiary record at the hearing. Accordingly, at this stage, I cannot conclude that there is no reasonable prospect of the applicant establishing potential Union liability arising from such collective agreement provision or work rule, if any.

90As a result, the allegation of Union liability arising from Article 54(d) of the collective agreement is dismissed as having no reasonable prospect of success. The remaining allegations against the Union pertaining to events during the one-year period preceding the filing of the Application on December 15, 2011 shall continue in the process.

Request to defer this proceeding

91The Employer and the Union have asked that this proceeding be deferred pending the conclusion of the grievance process arising from the termination grievance filed by the applicant on November 7, 2011.

92There is no doubt that this Tribunal quite often has deferred a proceeding on the basis of an ongoing grievance process, especially where the matter has been referred to arbitration. This makes sense for a lot of reasons, including avoiding duplicative proceedings and the possibility of conflicting findings of fact or law or the awarding of inconsistent or overlapping remedies, and the fact that a labour arbitrator can address not only alleged violations of the Code but also any alleged violations of the collective agreement.

93However, in order for it to make sense to defer a proceeding before this Tribunal pending the conclusion of a grievance process, there needs to actually be an ongoing grievance process that, if not already at arbitration, is at least heading in that direction within a reasonable amount of time. That, in my view, is not the situation in the case before me.

94The termination grievance was filed on November 7, 2011, almost two years ago. Based upon the material before me, while this grievance is technically “open” because it has not been withdrawn, the grievance is on hold pending certain actions to be taken by the applicant. On August 23, 2012, the Union sent the applicant a letter recommending that he comply with the recommendations made by Dr. Pallen on August 17, 2011, namely to stop using cannabis and to go for treatment for his cannabis abuse, so that the Union could progress the grievance to the next step. The letter states that “if there is any reason you cannot or will not adhere to the recommendations spelled out in Dr. Pallen’s report, please advise us immediately”. By the time of this letter, the Union had been served with the applicant’s Application, which sets out his position that he does not have a substance abuse problem. Accordingly, the applicant’s position is that he is not prepared to seek treatment for a substance abuse problem that he says he does not have.

95As a result, it appears to me that the parties are at a stalemate. The Union has indicated that it will not proceed further with the termination grievance until the applicant seeks treatment for cannabis abuse, while the applicant says he does not have a substance abuse problem and so will not seek treatment for a problem he does not have. Moreover, the very requirement that he seek treatment for substance abuse, which was relied upon by Sun Life to discontinue the applicant’s disability benefits and ultimately led to the termination of his employment, is alleged in this proceeding to be discriminatory.

96In response to my questioning at the teleconference hearing, the Union raised a number of alternatives whereby the termination grievance could proceed to arbitration. First, it was stated that the applicant could meet with the Union’s substance abuse advisor for an assessment as to whether referral to a substance abuse facility is appropriate. Second, it was stated that if the applicant’s family doctor wrote a letter stating that the applicant did not have a substance abuse problem, then that would be sufficient for the grievance to be referred to arbitration. In this regard, I note that the applicant has produced drug test reports from November 24, 2011, March 26, 2012 and October 23, 2012 which state that various substances, including cannabis, were not detected in the applicant’s urine on these dates within the relevant detection limits. Further, the applicant’s family doctor has written a letter dated December 22, 2011 in which it is stated: “As far as having an addiction to drugs, the patient’s latest blood work can attest to this question.” While I appreciate that this may not be as clear a statement as one might like on the question of whether the applicant has a substance abuse problem, given that urine tests do not speak to use or abuse of drugs but just whether they are detectable in the system on a particular day, it seems fairly clear to me that the applicant’s family doctor does not regard him as having a substance abuse problem and perhaps a more clearly stated letter could be obtained. Finally, the Union states that if the applicant does not have a substance abuse problem but if his use of cannabis may affect his mental health disorders, then the Union might refer the termination grievance to arbitration on the basis of the applicant taking other measures to address any cannabis use, such as attending a 12 step program.

97While these may all be possibilities that the applicant and the Union could explore, the fact remains that the deadlock between these parties has yet to be resolved, and as a result, the termination grievance has not been referred to arbitration and there is no reliable indication as to if or when this may occur. As a result, in my view, I really have nothing to defer this proceeding to. If at some future time, the applicant and the Union are able to resolve their differences and the termination grievance is actually referred to arbitration, then the parties may renew their request for deferral. But unless and until that occurs, I am not inclined to exercise my discretion to defer this matter.

98As a result, the request by the Employer and the Union to defer this proceeding pending the conclusion of the grievance process is denied.

State of the pleadings

99In its written submissions provided for the purpose of the teleconference hearing, the Employer raised an objection to the Reply as filed by applicant’s counsel, on the basis that it raised new allegations, and requested that any such new allegations be struck.

100I am well aware that at the time he filed his Applications against the Union and the Employer, the applicant did not have the benefit of legal counsel. As a result, the allegations of discrimination raised as against the Employer and the Union and the material facts in support of these allegations are not as clearly stated as they might otherwise have been. At present, in order to get a full understanding of the applicant’s allegations as against the Employer and the Union, I have had to refer to the two Applications (where allegations against one respondent sometimes appear in the Application against the other), the Reply, the applicant’s documents, and the applicant’s chronological summary. This is not an orderly or satisfactory process, and I appreciate the concern expressed by Employer counsel that the applicant’s allegations should not be split up and spread out in this manner, but should be clearly stated in the Application so that the responding parties are properly able to respond.

101At the same time, given the early stage of this proceeding, I do not believe that it would be appropriate for allegations that appear in places other than the two Applications should simply be struck. Rather, in my view, the proper approach is to require the applicant to serve and file a fresh Application as against the Employer and the Union, which can be combined into one Form 1 naming two organizational respondents, in which all of the allegations I have allowed to proceed are clearly set out with the material facts (and not argument) in support of these allegations, to which the Employer and the Union can then file a fresh Response without reference to the preliminary objections already addressed in this Decision or needing to respond to the allegations I have dismissed, and then to which the applicant can file a proper Reply.

102To be clear, the only allegations that I have allowed to proceed as against the Employer are the three allegations set out at para. 43 above and the only allegations that I have allowed to proceed as against the Union are the two allegations as described at paras. 66 to 70 and at para. 72 above, and the fresh Application is to be restricted only to raising these allegations and setting out the material facts in support.

103In the Order below, I have established a timetable for the filing of these fresh pleadings.

104I note that all parties have requested mediation. Accordingly, I have directed that this matter proceed to mediation at the earliest date following the completion of the fresh pleadings.

ORDER

105For all of the foregoing reasons, I hereby make the following order:

a. all allegations in the Application as against the Employer pertaining to events on or before May 20, 2010 are dismissed as an abuse of process on the basis of the May 20, 2010 settlement agreement;

b. all allegations in the Application as against the Employer that pre-date August 31, 2010 are also dismissed for delay;

c. all allegations in the Application as against the Union that pre-date December 15, 2010 are dismissed for delay;

d. the allegation of Union liability arising from Article 54(d) of the collective agreement is dismissed as having no reasonable prospect of success;

e. the request by the Employer and the Union to defer this proceeding pending the conclusion of the grievance process is denied;

f. the parties shall serve and file fresh pleadings in this matter in accordance with the following schedule:

i. within 30 calendar days of the date of this Decision, the applicant shall serve and file a fresh Application as against the Employer and the Union, which is to be combined into one Form 1 naming two organizational respondents, in which all of the allegations that have been allowed to proceed are clearly set out with the material facts (and not argument) in support of these allegations. To be clear, the only allegations that have been allowed to proceed as against the Employer are the three allegations set out at para. 44 above and the only allegations that have been allowed to proceed as against the Union are the two allegations as described at paras. 67 to 71 and at para. 73 above, and the fresh Application is to be restricted only to raising these allegations and setting out the material facts in support,

ii. within 60 calendar days of the date of this Decision, the Employer and the Union shall serve and file a fresh Response without reference to the preliminary objections already addressed in this Decision and without responding to the allegations that have been dismissed,

iii. within 70 days of the date of this Decision, the applicant shall serve and file a proper Reply in accordance with the requirements of Rule 9; and

g. this matter shall proceed to mediation at the earliest date following the completion of the fresh pleadings.