Landry v. Scapa Tapes North America, 2013 HRTO 253

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Julia Landry

Applicant

-and-

Scapa Tapes North America and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial Local 6946-I

Respondents

DECISION

Adjudicator: Brian Cook

Date: February 12, 2013

Citation: 2013 HRTO 253

Indexed as: Landry v. Scapa Tapes North America

APPEARANCES

Julia Landry, Applicant Self-represented

Scapa Tapes North America, Respondent Paula Rusak, Counsel

Scapa Tapes North America and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial Local 6946-I, Respondent Katrina Peddle, Counsel

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination because of employment. The respondents are the applicant’s former employer and the union that the applicant belonged to during her employment. The Application was filed on July 16, 2012.

2In a Case Assessment Direction dated September 11, 2012, the Tribunal directed a hearing by telephone conference call to determine if the Application should be dismissed in whole or in part because

1. the events or some of the events described in the Application occurred more than one year before the Application was filed;
2. there may be no reasonable prospect that the Application or parts of the Application can succeed.

3The hearing was held on February 1, 2013. All the parties participated.

Background

4The applicant suffered a work-related injury in 2005. In the Application, she alleges that she was not properly accommodated under the Code following this injury. She last worked for the employer in December 2008.

5The employer terminated the applicant’s employment on July 8, 2011.

6The union filed a grievance on November 18, 2011 which was refused by the employer as it was not filed in time and which, accordingly, was never referred to arbitration. There were nevertheless discussions between the parties that led to Minutes of Settlement that were signed by the applicant, the employer and the union in January 2012.

7The applicant also filed a complaint with the Ontario Labour Relations Board (OLRB) alleging that the union had violated its duty of fair representation contrary to the Labour Relations Act, 1993 S.O. 1995. Specifically, she alleged that the union had not fairly represented her in respect of the termination of her employment, in respect of the period prior to that when she did not return to work and with respect to her entitlement to benefits from the WSIB. The complaint was considered in a decision of the OLRB dated July 9, 2012.

8The OLRB found that it had no jurisdiction with regard to the applicant’s complaints about her claim for benefits under the Workplace Safety and Insurance Act and that a union’s duty of fair representation does not extend to WSIB claims.

9The OLRB found that most of the events complained of occurred more than one year before the complaint was filed with the OLRB and that in the absence of an explanation for the delay, the Board would not deal with the complaints that were “stale”.

10The OLRB found that the complaint concerning the union’s handling of the termination of her employment was timely. The Decision noted that the applicant had independent legal advice around the time the settlement was entered into. The Decision found that there was no evidence of a failure by the union to fairly represent the applicant and that in fact the union “obtained quite good settlement terms for a grievance that the Employer was contesting, with some vigour and merit, as being out of time.”

11The applicant filed the Application with this Tribunal on July 16, 2012. The Tribunal issued the September 2011 Case Assessment Direction before the respondents were required to file Responses.

Timeliness of the Application

12Section 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.

13Most of the allegations in the Application relate to matters that occurred more than one year before the Application was filed on July 16, 2012. This includes the termination of employment, which occurred on July 8, 2011.

14At the telephone conference hearing the applicant submitted that she should be permitted to bring the allegations about events that occurred more than a year before the Application was filed because there is a good faith explanation for the delay. She said that she was advised by someone at the OLRB that she should file her complaint about the union first and await the outcome of that complaint before proceeding with the Application at this Tribunal.

15The respondents note that the applicant’s documents include a letter from the lawyer that she retained. The letter is dated November 29, 2010. It sets out a summary of the applicant’s options in respect of her various concerns. This included advice about filing an Application with this Tribunal, including information about the time limits set out in section 34 of the Code. Given this information, I am not convinced that there is a good faith explanation for the delay in filing the Application. As noted all of the events that occurred and that involve allegations about the employer occurred more than one year before the Application was filed. I conclude that the allegations concerning the employer must be dismissed on that basis.

16If the allegations against the employer were not dismissed because they are out of time, they would be dismissed because the applicant signed Minutes of Settlement with the employer that specifically provided that the applicant would not bring any action against the employer under the Human Rights Code.

17The Tribunal has held that Minutes of Settlement that include such language are a bar to an Application. An exception to this can arise if the applicant can show that the Minutes were signed under duress and the applicant alleges that this occurred in this case. She states that she was under a great deal of stress because of events in her personal life and also because of her dealings with the WSIB which had allegedly placed her under surveillance. She also alleges that the union forcefully told her that she was required to sign the Minutes and that she had no viable alternative. However, the applicant agreed that she had access to independent legal advice about the Minutes, although she ended the retainer shortly before signing the Minutes. She agreed that there were extensive discussions prior to her signing the Minutes as she tried to improve the terms. She indicated that her lawyer told her that he thought that it was not a good deal.

18In King v. Ontario (Ministry of Health and Long-Term Care), 2011 HRTO 2228, the Tribunal stated (at paragraph 20) the following regarding the test for duress:

The applicant has the onus of establishing that the circumstances surrounding the conclusion of the agreement amount to duress. The legal threshold is an exacting one, which recognizes the strong public interest in the principle of finality. The Ontario Court of Appeal described the elements of duress as follows in Taber v. Paris Boutique & Bridal Inc, 2010 ONCA 157, at para. 9:

It must have two elements: it must be pressure that the law regards as illegitimate; and it must be applied to such a degree as to amount to “a coercion of the will” of the party relying on the concept.

19In my view, there is no reasonable prospect that the applicant could show that she met this test.

20The applicant suggested that the Minutes should not be a bar because the employer breached the terms of the Minutes. The Minutes included provisions concerning the transfer of funds to the applicant’s RRSP account. This took several months to finalize although the Minutes provided that payments would be made within two weeks. In my view, the fact that a transfer of funds involving the transfer of RRSP funds took longer than two weeks is understandable. The applicant agreed that in part the delay was caused by the legal requirements imposed by her own financial institution. There is not dispute that the funds were eventually transferred in accordance with the Minutes of Settlement. In these circumstances, it does not appear that there is a reasonable prospect that the applicant could show that the Minutes of Settlement should be set aside so as to allow the Application to proceed.

21The allegations about the union in the time after July 2011 must also be dismissed, for several reasons.

22Section 45.1 of the Code provides:

45.1 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.

23The decision of the OLRB has dealt with the substance of the applicant’s allegations about the union. Although the applicant does not agree with the findings of the OLRB, the solution to this is not to in effect appeal that decision to this Tribunal: British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52.

24Even if this were not the case, the Application as against the union would also be dismissed on the grounds that there is no reasonable prospect that the applicant could successfully establish that the union discriminated against her. As the Tribunal noted in the September 11, 2012 Case Assessment Direction, 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. As the Tribunal stated in Traversy v. Mississauga Firefighters’ Association, 2009 HRTO 996 (at paragraph 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.

25In this case, the applicant alleges that the union should have done more for her in regard to her employment rights and her WSIB claim but there is no basis to suggest that these alleged failures occurred because the union was discriminating against the union, as opposed to only not pursuing the applicant’s rights in the way the applicant wished.

DECISION

26For all of the reasons set out in this Decision, the Application is dismissed.