Cameron v. International Brotherhood of Electrical Workers, Local 120, 2013 HRTO 1630

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, Philip Flemming, and Edwin Hill

Respondents

RECONSIDERATION DECISION

Adjudicator: Brian Cook

Date: September 27, 2013

Citation: 2013 HRTO 1630

Indexed as: Cameron v. International Brotherhood of Electrical Workers, Local 120

WRITTEN SUBMISSIONS

Donna Cameron, Applicant

Self-represented

Introduction

1This is a Request for Reconsideration of Decision 2013 HRTO 1277 (“the Decision”), dated July 23, 2013. The Decision dismissed the Application on the grounds that it was not filed in accordance with section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2Section 34 provides:

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.

3The Decision found that the Application was not filed within one year of the alleged discriminatory event and that there was not a subsequent “series of events”, the last of which occurred within one year of the filing of the Application.

4The Request for Reconsideration (“the Request”) was filed by the applicant on August 22, 2013. The Request submits that there was a series of events, the last of which occurred within one year of the filing of the Application and that there is a good faith explanation for any delay.

5Rule 26 of the Tribunal’s Rules of Procedure concerns how the Tribunal will consider requests for reconsideration. Rule 26.5 states:

26.5. A Request for Reconsideration will not be granted unless the Tribunal is satisfied that

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

6The Tribunal’s Practice Direction on Reconsideration states in part:

Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

THE REQUEST

7The events underlying the Application started in 2007. The applicant is employed by a union. She alleges that her employer did not give her a position that she was qualified for and that this happened because of discrimination on the basis of sex. She made a complaint under the union’s internal complaints procedures. She was not satisfied with the result of that complaint and filed an appeal under the union’s Constitution. She later filed a complaint with the Ontario Labour Relations Board that was dismissed when the Board found it lacked jurisdiction to deal with the complaint.

8In the Application, the applicant alleged that the various processes she pursued after the initial events were a series of events. Since some of these processes were still underway within one year of the filing of the Application, the applicant argued that the Application was filed in accordance with section 34 of the Code.

9The Decision found that the various processes were not a series of events within meaning of section 34 of the Code. The Decision stated:

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.

10In the Request, the applicant indicates that she does believe that the processes she followed were part of a series of events. She suggests that the processes were all part of an internal investigation. She refers to Boncori v. TRW Canada, 2009 HRTO 564 as support for this. In Boncori, the Tribunal found that an alleged inadequate failure by an employer could form part of a series of alleged events for the purpose of section 34 of the Code. At paragraph 27, the Tribunal said:

In my view, the harassment allegations raised by the applicant include not only that he experienced harassment by his supervisor, but also that management failed to take appropriate steps to address the alleged harassment. As a result, both the underlying harassment allegations and the issue of the steps taken by management to address them form a “series of incidents” within the meaning of s. 34(1)(b).

ANALYSIS

11In the present case, the initial investigation was completed in 2008, following a process that the applicant refers to as a “grievance” that included a hearing. The applicant was not satisfied with the results of that and pursued rights that she had as a union member. The processes included an appeal to the international convention of the international union.

12While these processes may have occurred because the applicant was not satisfied with the results she obtained, the facts of this case are different than the facts in Boncori. In that case, the allegation was that the employer had failed to engage in an adequate process in terms of investigating allegations of harassment. In this case, there was a process for investigating allegations of harassment. The applicant did not like the result and pursued it through grievance and appeal procedures. As noted in the Decision, in the circumstances of this case, these procedures do not constitute a series of events for the purposes of section 34 of the Code.

13The Request reiterates the argument previously made by the applicant that the fact that the applicant only filed the Application “as a last resort” after she had exhausted other procedures, provides a good faith explanation for the delay. This argument was dealt with in the Decision at paragraphs 16 – 18. The Request does not identify any of the factors described in the Tribunal’s Rules that would permit the Tribunal to reconsider the Decision in respect of this finding.

14For these reasons, the applicant's Request for Reconsideration is denied.