HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Marvin Lagace
Applicant
-and-
Coca-Cola Refreshment Canada Company
Respondent
DECISION
Adjudicator: Geneviève Debané
Indexed as: Lagace v. Coca-Cola Refreshment Canada Company
APPEARANCES
Marvin Lagace, Applicant
Self-represented
Coca-Cola Refreshment Canada Company, Respondent
Andrew N. Zabrovsky, Counsel
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 with respect to employment on the basis of age.
2The Tribunal directed that a preliminary hearing would be held to determine a number of jurisdictional issues. This hearing was held via telephone conference on October 16, 2013.
3For the reasons that follow the Application is dismissed on the basis of delay. As such, I do not need to consider the merits of the other jurisdictional issues.
Background
4The applicant has been employed with the respondent since October 1974. The applicant is a member of a bargaining unit whose bargaining agent initially was the United Food and Commercial Workers Union (the “UFCW”). As a member of the UFCW the applicant has been enrolled since January 1980 in the Canadian Commercial Workers Industry Pension Plan (the “CCWIPP”), which is a multi-employer pension plan.
5On January 21, 2004, the applicant’s bargaining unit decertified the UFCW as its bargaining agent and voted in favour of being represented by the Canadian Auto Workers Union (the “CAW”).
6Since the applicant was no longer a member of the UFCW he could no longer participate in the CCWIPP. Pursuant to the Pension Benefits Act, R.S.O. 1990, c. P.8, as amended (the “PBA”), the CCWIPP was required to administer the pension entitlements of the employees and remit those to a pension plan administered by the respondent (the “ERP”). The PBA provides that employees who have an entitlement to an immediate payment of a pension had to transfer their pensions to the ERP. Employees who are not entitled to an immediate payment of a pension can elect to have the commuted value of their pension be directed to another plan.
7The CCWIP provided that an employee who was over 50 years of age and had at least two continuous years of plan membership had the right to an immediate payment of a pension. Since the applicant was over 50 years of age and had more than two years’ membership he was not entitled to an election and his pension was transferred to the respondent’s ERP.
8The applicant believes that he was disentitled from electing out of the ERP because of his age and he believes that this is discriminatory.
Delay
9The Tribunal’s power to hear and determine human rights applications is based on the Code. Section 34 states:
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.
10The first issue that the Tribunal must determine is the date of the last incident of discrimination.
11The applicant acknowledges that he was aware that he did not have an election right since October 2004. Further, the actual transfer from the CCWIPP to the respondent’s ERP occurred in 2007.
12The applicant acknowledged that he made numerous enquiries to his Union and the Financial Services Commission of Ontario (“FSCO”) for a number of years. The applicant was aware that one of the factors which prevented him from having the right to an election was that he was more than 50 years old. In fact the applicant states that he contacted the Tribunal in 2010. This Application was filed in June 2012.
13During the conference call the applicant relied on a letter received in September 2011 from the respondent explaining why he was not entitled to transfer his CCWIPP pension entitlements to a pension plan of his choosing. The September 2011 letter is not a further “incident of discrimination” since it simply explains past events.
14The applicant also sought to rely on a Letter of Agreement (“LOA”) appended to the Collective Agreement between the respondent and the CAW which provides the opportunity for employees to join the ERP. The LOA states, in part, that “Members will receive election forms and must make an election and return their forms no later than September 30 2004 or such other date as mutually agreed.” The LOA continues to be appended to all collective agreement renewals. Having considered that the LOA conferred rights to employees in September 2004, the fact that the LOA continues to be appended to the Collective Agreement does not constitute a “new” incident of discrimination.
15This is not a situation where there is an ongoing or series of incidents. There is a discrete allegation of discrimination which allegedly occurred when the applicant’s pension was transferred from CWIPP to the respondent’s ERP and he was denied the opportunity to elect out of the ERP. Based on the materials that have been provided I find that the last incident of discrimination, at best, is in 2007 when the applicant’s pension was actually transferred to the ERP. The Application was filed four years beyond this date
Was the delay incurred in Good Faith?
16The Tribunal has the jurisdiction to accept an Application filed more than one year after the last incident of alleged discrimination if it is satisfied that the delay was incurred in good faith. The Tribunal has extensive case law which has addressed the issue of whether the delay in filing an application was incurred in good faith. The applicant must provide a reasonable explanation for the delay. Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424.
17Having reviewed the circumstances of this case I do not accept that the delay was incurred in good faith. There are extremely long periods of delay for which the applicant has provided no explanation. He waited years to contact FSCO and this Tribunal and the applicant has not been diligent in pursing his rights under the Code.
Order
18The Application is dismissed for delay.
Dated at Toronto, this 8th day of January, 2014.
“Signed by”
Geneviève Debané
Vice-chair