Krystine Evanochko v. City of Greater Sudbury and Canadian Union of Public Employees Local 4705, 2014 HRTO 410

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Krystine Evanochko

Applicant

-and-

City of Greater Sudbury and Canadian Union of Public Employees Local 4705

Respondents

DECISION

Adjudicator: Jay Sengupta

Date: March 24, 2014

Citation: 2014 HRTO 410

Indexed as: Evanochko v. City of Greater Sudbury

APPEARANCES

Krystine Evanochko, Applicant

Rejean Parise, Counsel

City of Greater Sudbury, Respondent

Mireille Khoraych, Counsel

Canadian Union of Public Employees Local 4705, Respondent

Robert Logue, Counsel

Introduction

1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability.

2The respondents have not been required to file Responses. Instead, upon receipt of the Application on June 11, 2013, the Tribunal sent the applicant a Notice of Intent to Dismiss (“NOID”), dated June 24, 2013, in which it raised issues with respect to timeliness and sought a response from the applicant within a month of the date of the NOID. Following receipt of the applicant’s response, a Case Assessment Direction (“CAD”) was issued on August 9, 2013, setting the matter down for a teleconference hearing during which the submissions of the parties would be heard on the issues of dismissal on the basis of delay and dismissal on the basis of no reasonable prospect of success as against the respondent union.

3The telephone conference call was initially set for November 25, 2013. On that date, the matter was adjourned as the Tribunal and one of the parties had not received materials sent by newly retained counsel for the applicant. The parties reconvened on December 18, 2013. On that date, I heard submissions from the parties in accordance with the August 9, 2013 CAD.

4For the reasons that follow, the Application is dismissed.

BACKGROUND

5The applicant was employed by the respondent municipality from March 7, 2011 to September 20, 2011, during which time she was represented by the respondent union.

6The applicant says that her difficulties began when she notified the employer of her medical condition in May 2011. From that time until the applicant’s employment was terminated in September, 2011, the applicant alleges that the respondent employer “failed to appreciate her disability” and did not consider the medical notes she provided.

7She alleges that during the course of her employment she sought and was denied accommodation relating to needs arising from her disability and was terminated for reasons relating to her disability by the respondent employer. She alleges that the respondent union did not assist her in asserting her rights under the Code and failed to adequately represent her interests in the struggles that she had with the respondent employer.

8Of note for the purposes of this decision is the chronology of relevant events. As the respondents were not called on to file Responses, this information is gleaned from the Application and the documents filed by the parties in preparation for the teleconference hearing.

decision

Delay

9Section 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.

10The Application was received by the Tribunal on June 11, 2013. The applicant argues that the date of filing should be the date on which she mailed her package; specifically June 6, 2013. She has provided a receipt from Canada Post confirming the date of mailing.

11The Application indicates that the last in a series of incidents of discrimination took place on June 7, 2012. The applicant says that she attended a meeting with the president of the local union on that date and when she requested that he revisit a decision that had been communicated to her in October 2011 and asked him again whether grievances against the respondent municipality would be pursued by the respondent union on her behalf, she was told that those decisions would not revisited or reversed. She characterizes this conversation as an incident of discrimination.

12Even assuming without finding that June 6, 2013 is the date the Application was filed, the Application is untimely. Although the applicant argues that the last in a series of incidents of discrimination took place on June 7, 2012, I find that the conversation with the president of the local union on that date does not constitute an incident of discrimination.

13From the materials filed by the applicant herself, I understand that on that date she sought to have the respondent union revisit and reverse decisions made by it either in May or October of 2011, and communicated to her in October, 2011. That decision concerned not pursuing grievances filed during her employment and following the termination of her employment by the respondent employer, which was communicated to her by way of a letter from the employer dated September 20, 2011.

14The Tribunal in Mu v. Cargill Foods, 2011 HRTO 846, in which similar arguments were raised, held at paragraphs 28 and 29, that the refusal to reverse a decision during a grievance procedure by an employer and steps taken by the union to inform a grievor of steps taken during the grievance procedure cannot be viewed as separate incidents of discrimination. See also Bish v. Canadian Union of Public Employees, 2011 HRTO 221 at para. 11 and 12 and Umar v. Shad Valley International, 2011 HRTO 1945 at para. 13 and 14.

15I note that any act or omission alleged to be an incident of discrimination attributable to the respondent employer in respect of the applicant could have taken place no later than September 20, 2011. Similarly, the decisions of the union not to pursue grievances concerning her, were likely made during the grievance procedure and were communicated to the applicant, by her own account, during October, 2011.

16As a result, I find that the Application was not filed within one year of the last in a series of incidents as required by s.34(1)(a) of the Code.

17I turn next to the question of whether the applicant has established that there is a good faith reason for the delay in filing. The Tribunal has held that to in order to establish that a delay was incurred in good faith under section 34(2) an applicant must provide some reasonable explanation for the delay. See Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424.

18The applicant offers two explanations. The first is that she relied on her union to advance her case and when it did not do so, it became necessary for her to file an Application with the Tribunal. The second reason offered is that she was unaware of her rights until she sought the assistance of counsel.

19With respect to the first explanation, the applicant’s position is that she was relying upon and trusting that the union was taking care of her interests and she felt it was appropriate for her to see whether the matter could be resolved through the grievance process. She says that she filed the Application one year after she knew for certain that the union would not be revisiting its decision not to proceed with the grievances filed on her behalf.

20I find this does not amount to a good faith reason for delay in filing the Application. The Tribunal has held on a number of occasions that waiting for another proceeding to conclude before filing an Application will generally not constitute a good faith reason for delay. In Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670, the Tribunal held as follow at para. 23:

The applicant essentially submits that the delay was incurred because she was waiting to see how other legal proceedings would unfold before she ascertained how to pursue her rights under the Code. However, the applicant could have filed a timely Application under the Code while she continued to pursue her statutory and contractual rights at the OLRB and at arbitration. Although the Tribunal may defer consideration of Applications where legal proceedings are ongoing in other for a relating to the same facts and issues as the Application, by filing timely Applications under the Code, even while other proceedings are ongoing, applicants ensure that they will not be prevented from applying to the Tribunal on the basis of delay. Waiting for other proceedings to conclude before pursuing ones rights under the code will generally not constitute a valid explanation for delay in filing an Application.

21In addition, this explanation does not address the question of why it would take a further 12 months, until June 2013, to file an Application about an employment relationship that was terminated in September 2011.

22The applicant also advanced an argument that she delayed filing her Application a further year after her meeting with the union in June, 2012 because she was not aware of her rights and the options available to her to pursue and enforce those rights. During the teleconference, the applicant submitted, through counsel, that even though she was finally aware that the union was not revisiting its earlier decision about the grievances involving the applicant in June 2012, the further delay of one year is attributable to the fact that she “did not seek out counsel until later”. This is not borne out by the materials that the applicant herself has put before me. I note that the applicant herself makes reference in an email sent as early as November 2011 that she had consulted a lawyer.

23The Tribunal has stated that although ignorance of one’s rights may in some circumstances amount to good faith, the applicant must also establish that he or she had no reason to make inquiries about his or her rights. See Stewart v. Mitten Vinyl, 2010 HRTO 1628. In the circumstances, that is not a position that the applicant could sustain in the present case.

24In summary, the applicant has provided no reason for me to conclude that this delay in pursuing her human rights application was incurred in good faith. As a result, it is not necessary for me to consider any potential prejudice to the respondents. Neither is it necessary for me to turn to the question of dismissal of some or all of the Application union on the basis that there is no reasonable prospect that the applicant will succeed in establishing an infringement of her rights under the Code as against the respondent union.

25Accordingly, the Application is dismissed.