HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Gerald Hollett
Applicant
-and-
Unifor, Unifor Local 1285 and Chrysler Canada Inc.
Respondents
DECISION
Adjudicator: Genevieve Debane
Indexed as: Hollett v. Unifor
APPEARANCES
Gerald Hollett, Applicant
Bob Ebrahimzadeh, Counsel
Unifor and Unifor Local 1285, Respondents
Piper Henderson, Counsel
Chrysler Canada Inc., Respondent
Christopher Dunn, 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 with respect to employment and membership because of disability.
2On March 20, 2014, the Tribunal issued a Case Assessment Direction which directed that a preliminary hearing would be held to address the following issues:
a. Whether the Application, as against Chrysler Canada Inc. (“Chrysler”), should be dismissed on the basis that it is untimely; and
b. Whether the Application should be dismissed as against the other named respondents, Unifor (the “Union”) and Unifor Local 1285 (the “Local”), on the basis that it has no reasonable prospect of success.
3This preliminary hearing was held on July 2, 2014, via telephone conference. During this call I determined that there was an evidentiary dispute between the applicant’s evidence and the evidence of Ardis Snow, a representative of the Local, and that it would be appropriate for the Tribunal to hear evidence on this issue. An in-person preliminary hearing was convened on August 7, 2014 during which all of the parties participated.
4During the course of the July 2, 2014 preliminary hearing the applicant withdrew his Application as against all of the named personal respondents. In light of this withdrawal, which was on the consent of the other parties, the names of these personal respondents have been removed from the style of cause.
Background
5The applicant was employed by Chrysler. On May 17, 2012, the applicant was advised by Chrysler that he, along with a group of other individuals, had been the subject of an investigation into the possession and distribution of drugs in the workplace. On the same day the applicant was arrested and charged with four offences. The applicant pled guilty to one charge and he received an absolute discharge in May 2013.
6The applicant was suspended from his employment on May 24, 2012. On June 25, 2012 he was advised by Chrysler that he was being terminated from his employment effective May 24, 2012.
7The applicant alleges that a grievance is automatically initiated by the operation of the collective agreement between Chrysler and the Local. Ardis Snow, Joe Giorgio, Jaspal Brar and Leon Rideout, who were initially all named as personal respondents, were at the material time members of the Local’s grievance committee.
8The applicant states that he discussed with them that he had health and disability related issues. He was told by the Local that it was in the process of bargaining with Chrysler and that they would be dealing with his grievance.
9On October 15, 2012, Mr. Snow advised the applicant that the Local would be withdrawing his grievance and that he had one year to appeal his decision to the labour board. The applicant had a conversation a few days later with Whitey MacDonald, the national representative for the Union, during which he asserts that he was told that the legal department viewed it as a “no-win” grievance and that it would not be wasting its time and money to fight it. He further stated that he was told by Mr. Macdonald, “you got caught doing something that you shouldn’t have been doing and it sucks to be you”, and “I can’t do anything for you”.
10The applicant then says that he approached the Union and the Local in December and later months in an effort to have them change its position on its decision to withdraw its grievance and he alleges that he tried to contact the employer directly. He then complained to the Union that he had never received a written communication from the Union with respect to the withdrawal of the grievance.
11On August 29, 2013, the counsel he retained sent a letter to the Union requesting that the Union refer its grievance to arbitration. The Union refused in a letter dated September 4, 2013.
12This Application was filed on October 11, 2013.
Delay with respect to filing the Application as against Chrysler
13The 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.
14The first issue that the Tribunal must determine is the date of the last incident of discrimination.
15Chrysler takes the position that the last date of alleged discrimination occurred on June 25, 2012 when it communicated to the applicant that his employment was being terminated. Therefore, Chrysler’s position is that the Application was filed 3.5 months beyond the statutory limit and that it is untimely.
16The applicant asserts in the Application that a series of incidents continued until September 4, 2013, the date on which the Union responded to the applicant’s counsel’s letter.
17The applicant also made a number of other submissions, including that Chrysler committed a series of incidents when it continued to maintain the applicant’s termination from employment during negotiations in the grievance process, and that these constitute separate violations of the Code amounting to a series of incidents. The applicant also takes the position that the Union became Chrysler’s agent on October 15, 2012, when it advised that it was withdrawing the applicant’s grievance and that therefore this is the last date of alleged discrimination.
18In the decision of Garrie v. Janus Joan Inc., 2012 HRTO 1955, the Tribunal reviewed at length the factors it will consider in determining the date of the last incident of discrimination, including the distinction between a series of incidents as opposed to the continuing effects of a discriminatory incident, stating at paras. 32 and 36:
As we have indicated, the underlying principle from the Divisional Court’s decision in Visic, supra, where the Ontario Divisional Court adopted the test for a “continuing contravention” was applied by the Manitoba Court of Appeal in Manitoba v. Manitoba (Human Rights Commission) (1984), 1983 CanLII 2967 (MB CA), 25 Man. R. (2d) 117. While the Divisional Court in Visic, supra, only cited a portion of the quotation from the Manitoba Court of Appeal, for our purposes, we believe it is helpful to set out the entire quotation. Thus, the Manitoba Court of Appeal, at para. 19, wrote:
What emerges from all of the decisions [various American arbitration decisions that the Court of Appeal and the lower court reviewed] is that a continuing violation (or a continuing grievance, discrimination, offence or cause of action) is one that arises from a succession (or repetition) of separate violations (or separate acts, omissions, discriminations, offences or actions) of the same character (or of the same kind). That reasoning, in my view, should apply to the notion of the “continuing contravention” under the Act. To be a continuing contravention, there must be a succession or repetition of separate acts of discrimination of the same character. There must be present acts of discrimination, which could be considered as separate contraventions of the Act, and not merely one act of discrimination, which may have continuing effects or consequences.
In situations where the employment relationship ends and the applicant receives payments from his or her former employer in the form of severance monies, benefits or pension amounts, the Tribunal has generally held that the date of separation is the last incident of discrimination. These determinations are notwithstanding the applicant’s assertion that the discriminatory effects of the monetary payments and/or ongoing settlement discussions amount to further incidents of discrimination under section 34(1) of the Code. See Longtin v. Great West Life Assurance Company, 2011 HRTO 244 at para. 18; Hiamey v. Conseil Scolaire de District Catholique Centre Sud, 2012 HRTO 301 at para. 24; and Bezaire v. Prestressed Systems, 2012 HRTO 777 at para. 10. However, in Lambe v. OMERS Administration, 2010 HRTO 2200, at para. 28, the Tribunal found that the last incident of discrimination was not the applicant’s termination date, but rather the date that he began to receive pension benefits, approximately four years after his termination and approximately six years before he filed his Application.
19First, the Tribunal has repeatedly found that on-going negotiations in the attempt to resolve an outstanding dispute does not extend the time-period prescribed by section 34(2) (see: Longtin v. Great-West Life Assurance Company, 2011 HRTO 244; St. Louis v. Ottawa Police Services Board, 2012 HRTO 899). The applicant’s counsel submitted that each step of the collective agreement grievance process at which Chrysler refused to reinstate the applicant constituted separate acts of discrimination. I note that the applicant did not provide any dates with respect to when this would have occurred other than to say that this culminated on October 15, 2012 when the Union decided to withdraw the grievance.
20The Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A mandates at subsections 48(1) and (2) that every collective agreement will provide for binding arbitration of any disputes between a union and the employer. The grievance and arbitration provisions of the collective agreement exist to assist the parties during a process which is adversarial in nature. Usually, it is the union who files a grievance to challenge the employer’s decision.
21The applicant takes the position that the “Union was acting as a dual agent for Chrysler and the Applicant when it advised the latter of the withdrawal”. Having considered this matter, I cannot accept the applicant’s submissions that there is either some agency relationship between Chrysler and the Union or that the applicant can rely on any of the Union’s actions or inactions to extend the last incident of discrimination with respect to Chrysler’s conduct. The decision to withdraw the applicant’s grievance was exclusively the Union’s decision.
22I also cannot accept that Chrysler continued in committing a series of incidents when it refused to allow the applicant’s grievance during the various steps of the grievance procedure. It only maintained its decision to terminate the applicant’s employment.
23I find therefore that the last allegation of discrimination as it relates to Chrysler occurred on June 25, 2012, when the applicant was advised by Chrysler that his employment was terminated.
Good Faith
24The Tribunal has extensive case law which has addressed the issue of whether the delay in filing an application was incurred in good faith. An applicant must provide a reasonable explanation for the delay: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424. The Tribunal has also stated that waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application. See, for example, Abutalib v. Toronto Police Services Board, 2010 HRTO 1697. A reasonable explanation must substantiate that the applicant acted with all due diligence. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 and Pelletier v. Nortrax Canada, 2011 HRTO 1495.
25In this case the applicant seeks to rely on advice that he allegedly received from his Local. The applicant testified, by adopting his witness statement, that on June 5, 2012 he met with Mr. Snow and that he asked him how to deal with the matter of his disability. The applicant testified that Mr. Snow stated that the only way to address his disability was through the grievance process and there was no other option. The applicant also stated that there was common knowledge amongst unionized employees that if you are disciplined the only recourse is by filing a grievance. The applicant states that he relied on Mr. Snow’s statements and the fact that he believed that the Local was pursuing his grievance and this is why he did not make any inquires about his rights under the Code.
26Mr. Snow testified that he never advised the applicant that his only recourse was through the grievance procedure. He maintained during a thorough cross-examination on this issue that the only things discussed with the applicant were with respect to his outstanding grievance.
27For the purposes of this decision I will assume that the evidence of the applicant is accurate, without making a credibility finding with respect to the contradictory evidence of Mr. Snow.
28In this case, based on the applicant’s evidence, he clearly understood and has always asserted, since his termination from employment, that his Code rights had been infringed. In these circumstances I do not accept the applicant’s submission that his lack of awareness of his rights is a good faith explanation for the delay. The Tribunal has repeatedly found that ignorance of the law is not a good faith explanation for delay.
29The Tribunal does have some case law which has found that, in certain circumstances, if an applicant relies on legal advice provided by legal counsel to his/her detriment then this may constitute good faith. See: Patterson v. Mississauga (City), 2012 HRTO 598 at paras. 21 to 23:
In 2011 the Tribunal dealt with four cases where the applicant argued that reliance on a lawyer’s advice established “good faith” pursuant to s. 34(2). In Biega v. Management Research & Solutions, 2011 HRTO 13, (reconsideration denied, 2012 HRTO 181), the applicant retained a lawyer even before the last incident of discrimination in January 2008. Subsequently he launched a civil proceeding for wrongful dismissal. After filing an Application in December 2009 the applicant argued that the delay was incurred in good faith because he had no knowledge of anti-discrimination legislation until his lawyer mentioned it to him in September of 2009. In rejecting the applicant’s argument the Tribunal stated:
…the applicant had counsel throughout the delay period. It is appropriate to infer from that fact that the applicant had access to relevant information about available legal options. I do not accept as credible the applicant’s claim that he did not have knowledge of the Code or of the possibility of legal remedies for discrimination until September 2009, nearly one year after he retained counsel.
Subsequently in Krajisnik v. Linamar, 2011 HRTO 460, the Tribunal again rejected the applicant’s “good faith” argument:
The applicant was involved in multiple legal processes related to his employment with the respondent and had the benefit of legal counsel…. the witness statement provided by the applicant’s daughter suggests that the applicant was never informed of his Code rights during these legal processes….Even if lawyers involved in these specific legal processes did not explicitly inform the applicant of other rights he may have had under the Code I am not satisfied that this means the applicant could not have made enquiries and learned of these rights in a timely manner.
Similarly, in Murray v. Craigwood Youth Services, 2011 HRTO 677, the applicant had consulted with and eventually retained legal counsel to address the termination of her employment. Her lawyer initiated an action for wrongful dismissal, with no indication that either the applicant or counsel turned their minds to possible remedies under the Code. After the civil action was dismissed the applicant filed an Application, some 22 months after the termination. In addressing the issue of good faith I stated the following:
Although it may be, as the applicant argues, that her legal counsel failed to inform her regarding her rights pursuant to the Code, that by itself does not constitute a satisfactory explanation for why she could not have filed her Application in a timely manner.
30Similarly, in this case I find that the applicant failed to satisfy me that he exercised due diligence in the pursuit of his rights under the Code. The Local, who has carriage of a grievance, has knowledge about the requirements of the collective agreement and the employee’s rights thereunder. I find that it is insufficient for the applicant to establish due diligence based on conversations that he had with a non-lawyer in which he believes that he was told that a grievance was his only option to pursue his rights under the Code. Even if Mr. Snow did not explicitly advise the applicant that he could file a human rights application, the applicant had sufficient information at that time to make enquires with respect to his rights under the Code. The applicant knew as of October 15, 2012 that the Union was no longer pursuing his grievance and he should have made these enquiries, at least, at that time.
31The applicant also argued that he was involved in the criminal proceedings and it was only at the conclusion of these that he could turn his mind to the issues relating to the termination of his employment. However, this also is not a good faith explanation for his failure to retain counsel within the one year limitation period. The applicant was capable of defending himself and participating in these other proceedings and this is not a reasonable explanation for his failure to file this Application with diligence.
32The Tribunal finds that the applicant has not established that the delay in filing the Application as against the respondent Chrysler was incurred in good faith and it is not necessary for me to address the issue of prejudice.
Summary Hearing with respect to Unifor
33The Tribunal must assess whether the Application as against the Union and the Local should be dismissed because it has no reasonable prospect of success. 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 Professional 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. See also Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 at paras. 16-18.
34Having considered the submissions of the parties the Tribunal finds that there is no reasonable prospect that the applicant can prove that the Union or the Local breached his rights under the Code.
35In essence, the applicant alleges that certain comments were made which suggest that the Union’s official had discriminatory attitudes and that these are sufficient for the Tribunal to infer that there was a discriminatory motive behind the withdrawal of the grievance. However, the applicant has failed to identify the exact nature of all of these comments. Further, the comments that he has identified and which are reproduced at paragraph 9 of this Decision clearly support that it was the Union’s view, based on an assessment of the facts, that it would not be a wise use of its resources to refer the grievance to arbitration. I cannot find that the Tribunal would infer that any of these comments support a discriminatory attitude by the Union.
36The applicant also relies on the fact that some other individuals who were terminated at the same time as him were reinstated to their positions and another individual was permitted to retire. No grievance was ultimately referred to arbitration with respect to the termination of any of these other employees.
37I find that the applicant has no information to support his belief that he was treated differentially because of his disability. These allegations are based on pure speculation and bald allegations. He has provided no information to the Tribunal with respect to the particulars related to these other individuals, including the severity of their alleged misconduct and whether or not they also are disabled within the meaning of the Code.
38The applicant did not point the Tribunal to any evidence which could establish, or from which the Tribunal could reasonably infer, that the conduct of the Union or the Local was discriminatory, including its refusal to pursue any grievances on his behalf.
39I find therefore, that the Application has no reasonable prospect of success as against the Union or the Local.
Order
40The Application is dismissed.
Dated at Toronto, this 9th day of January, 2015.
“Signed by”
Genevieve Debane
Vice-chair