HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Georgina Jefic Applicant
-and-
Algonquin & Lakeshore Catholic District School Board and The Algonquin-Lakeshore Unit of the Ontario English Catholic Teachers’ Association Respondents
DECISION
Adjudicator: Jennifer Scott Date: September 22, 2016 Citation: 2016 HRTO 1244 Indexed as: Jefic v. Algonquin & Lakeshore Catholic District School Board
APPEARANCES
Georgina Jefic, Applicant Self-represented
Algonquin & Lakeshore Catholic District School Board, Respondent Lynn Harnden, Counsel
The Algonquin-Lakeshore Unit of the Ontario English Catholic Teachers’ Association, Respondent Bernie Hanson, Counsel
BACKGROUND
1This Application was filed by the applicant on July 17, 2014 under section 34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). It alleges that the respondents discriminated against the applicant and her son with respect to employment, services, contracts, and membership in a vocational association because of disability, creed, family status, marital status, and association with a person identified by a Code ground. The Application also alleges that the respondent Algonquin & Lakeshore Catholic District School Board (the “School Board”) reprised against the applicant and her son. The applicant filed a Form 4-B (Litigation Guardian: Mental Incapacity) to bring the Application on behalf of her son.
2By Case Assessment Direction dated May 2, 2016, the Tribunal directed a summary hearing on the following preliminary issues:
a. Should the Application be dismissed for delay pursuant to section 34 of the Code?
b. Should the Application be dismissed pursuant to section 45.1 of the Code because another proceeding has appropriately dealt with its substance and/or because it is an abuse of the Tribunal’s process?
c. Should the Application be dismissed pursuant to Rule 19A of the Tribunal’s Rules of Procedure because there is no reasonable prospect that it will succeed?
3The preliminary hearing was conducted by teleconference on August 25, 2016.
THE FACTS
4The applicant was a teacher with the School Board. The applicant’s son has an intellectual disability and was a student of the School Board.
5In the summer of 2009, the applicant complained that her son was being bullied at school. The applicant alleges that after this complaint, she and her son were reprised against. She alleges that her son was “kicked out” of school and denied the opportunity to attend a co-op program even though he was entitled to remain in school until the age of 21. The applicant alleges further that her course-load was reduced and she was eventually terminated by the School Board in December 2009.
6Grievances were filed on the applicant’s behalf by the Algonquin-Lakeshore Unit of the Ontario English Catholic Teachers’ Association (the “Union”). A Memorandum of Agreement was signed on January 18, 2011. The Memorandum of Agreement contained a specific provision regarding the provision of employment references by the School Board.
7The applicant returned to school for two short periods following the Memorandum of Agreement. She worked from January 25-29, 2011 and May 5-9, 2011. The applicant alleges that she experienced harassment during these two periods.
8In September 2011, the applicant started working for a different school board on a part-time basis. She continued to search for other employment.
9In February or March 2012, negative employment references were given about the applicant by two school principals/vice-principals with the School Board. The applicant believed the Memorandum of Agreement had been breached.
10The applicant retained her own legal counsel in February 2012 on the alleged breach of the Memorandum of Agreement. It appears that he continued to represent her until March 2013.
11In May 2013, the applicant wrote to the Union and requested that it proceed to arbitration on two issues: whether the applicant had been the subject of rumours in 2011 and whether the negative references in 2012 precluded her from obtaining employment elsewhere.
12By letter dated July 18, 2013, the Union advised the applicant that it would not proceed to arbitration on the issues requested by the applicant because of timeliness concerns and because there was no convincing evidence that the applicant’s lack of success in obtaining employment was the result of statements allegedly made by the School Board. The Union was prepared to proceed to arbitration on the issue of whether the School Board failed to properly advise its agents (the principals/vice-principals) of their obligations under the Memorandum of Agreement regarding the provision of references. The union did not proceed to arbitration on this latter issue.
13On March 20, 2014, the applicant filed a breach of duty of fair representation complaint (the “DRF complaint”) against the Union with the Ontario Labour Relations Board (the “Board”). The issue before the Board was whether the Union breached its duty of fair representation in refusing to pursue damages for lost employment income as a result of the alleged negative references.
14The Board released its decision on May 22, 2015 dismissing the complaint. The Board held the Union turned its mind to the applicant’s case in a thoughtful and detailed way and concluded the chances of success were poor. The Board held there was no basis to conclude the Union’s decision was made arbitrarily, discriminatorily or in bad faith.
ANALYSIS
Allegations Against the School Board
15Section 34 of the Code provides that an application must be filed within one year of the incident to which the application relates, or within one year of the last incident in a series of events.
16The allegations of discrimination against the School Board took place between 2009 and 2012. The 2009 allegations concern the failure of the School Board to address the bullying of the applicant’s son and acts of reprisal following the applicant’s complaint. The 2011allegations concern harassment in January and May. The 2012 allegations concern the negative references given about the applicant in February or March. The Application was filed on July 17, 2014, two years and four months after the date of the last allegation (assuming for the purposes of this decision that these allegations are a series of incidents). As such, the Application is out of time.
17Under section 34(2) of the Code, the Tribunal can accept an application that is untimely if it is satisfied that the delay was incurred in good faith and no substantial prejudice would result from accepting the application. To show that a delay was incurred in good faith, the applicant must provide a reasonable explanation for her failure to pursue her rights under the Code in a timely manner.
18The applicant states that she delayed filing her Application because she was waiting for the Memorandum of Agreement to be signed with the Union. She states further that the delay was also due to the fact that she was looking for another job and was addressing difficult issues regarding her son from December 2013 to April 2014.
19I have a great deal of sympathy for the applicant and her personal circumstances. However, the applicant was dealing with issues relating to her son from December 2013 to April 2014. The limitation period in this case expired, at the latest, in March 2013. The events that occurred subsequently from December 2013 to April 2014 do not provide an explanation as to why the applicant did not file her Application before March 2013.
20The fact that the applicant was waiting to resolve the grievances with her Union is not a good faith explanation for her delay. The Tribunal has stated on a number of occasions that pursuing other legal remedies before turning to the Tribunal will not normally be accepted as a good faith explanation for delay. An applicant who wishes to pursue remedies in other forums must also file an application with this Tribunal to ensure the application is filed within the one-year time limit. See Paul v. Grand River Hospital (Specialized Mental Health Unit), 2015 HRTO 971 at para. 7
21In this case, during the period 2009 to January 2011, the applicant had access to the Union and therefore had the means to inquire about her legal rights. From February 2012 to March 2013, the applicant had access to her own legal counsel and again had the means to inquire about her human rights. Had the applicant obtained such advice and filed her Application by March 2013, her allegations would have been timely.
22Limitation periods are important because they ensure legal proceedings are filed in a timely way. This facilitates the fairness of these proceedings. Parties cannot wait for the outcome of other proceedings to file before the Tribunal. Applications would be significantly delayed and the fairness of the proceeding would be affected if this were allowed.
23Finally, the fact that the applicant was looking for another job is not a good faith explanation for delay. The limitation period under the Code would be significantly diminished if this was a good faith explanation. It would mean that in all cases, the limitation period could be extended simply because an applicant was searching for other employment.
24The applicant has failed to establish a good faith reason for her delay. In light of this finding, it is not necessary to determine the question of prejudice.
25For these reasons, the allegations against the School Board are dismissed for delay. There is no need to consider whether the allegations against the School Board should be dismissed under section 45.1 and/or because they have no reasonable prospect of success.
Allegations against the Union
26The applicant complains that the Union failed to represent the applicant on the alleged harassment that took place in January and May 2011. She states that she did not know the Union’s position on the question of representation until she received the Union’s letter dated July 18, 2013. The applicant submits the limitation period commenced on the date she received this letter.
27The applicant’s complaint against the Union is not a complaint of discrimination. The Tribunal’s jurisprudence is clear that it is not discrimination for a union to decide not to represent a member, unless the reason for doing so was based on one of the grounds in the Code. In this case, there is no suggestion that a prohibited ground of discrimination was a factor in the Union’s decision not to represent the applicant on the harassment allegations. This allegation is dismissed as having no reasonable prospect of success. See Baylet v. Universal Workers Union, 2009 HRTO 70
28There is no question that the applicant has been through a very difficult time over the past few years and she is troubled by the way that she has been treated during this time. The difficulty is that this treatment took place between 2009 and 2012. The applicant did not file her Application until 2014. The Application against the School Board is out of time and the applicant has not established a good faith explanation for her delay. The Application against the Union is dismissed because it has no reasonable prospect of success.
29The fact that the Application is dismissed is not meant to diminish the applicant’s experience in any way. In particular, no finding has been made as to whether the applicant experienced harassment. Those allegations are dismissed because they have been brought too late.
ORDER
30This Application is dismissed.
Dated at Toronto, this 22nd day of September, 2016.
”Signed By”
Jennifer Scott Vice-chair