Luke Woodcock v. Essar Steel Algoma Inc., 2016 HRTO 1318

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Luke Woodcock

Applicant

-and-

Essar Steel Algoma Inc.

Respondent

DECISION

Adjudicator: Bruce Best Date: October 12, 2016 Citation: 2016 HRTO 1318 Indexed as: Woodcock v. Essar Steel Algoma Inc.

APPEARANCES

Luke Woodcock, Applicant

Mark Molinaro, Representative

Essar Steel Algoma Inc., Respondent

Simon Mortimer, Counsel

Introduction

1This Application alleges discrimination in employment on the grounds of disability by association contrary to the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). From the narrative, the Application appears to be primarily based on the ground of family status.

2By Case Assessment Direction (“CAD”) dated March 10, 2016, the Tribunal directed that a preliminary hearing be held to address whether the Application should be dismissed on the basis that the Application is outside the Tribunal’s jurisdiction, as it was filed more than one year after the last alleged incident of discrimination, or that the substance of the Application has been appropriately dealt with in a related grievance proceeding for the purposes of s.45.1 of the Code.

3The Application was filed more than one year after the last alleged incident, and it is not disputed that it is out of time under s.34(1) of the Code. The issue is whether the delay in filing the Application was incurred in good faith, and, if so, whether any substantial prejudice would result to any person.

4For the reasons below, I cannot find that the delay was incurred in good faith for the purposes of s.34(2) of the Code, and as such the Application is not within the Tribunal’s jurisdiction and must be dismissed.

Factual Background

5The applicant is a unionized employee of the respondent. He was working as a machinist leader, and had arranged with his co-workers to work steady night shifts, which accommodated his obligations to care for his children. The employer changed the schedule on short notice on September 12, 2013 so that he would begin working the day shift, which he claims interfered with his child care obligations. The applicant subsequently went on a leave from November 2013 to February 12, 2014, at which point he returned to work in a different department, where his schedule was accommodated, though he indicates he earned a lower wage in the new position.

6A grievance was filed on September 20, 2013, one week after the initial change in schedule took effect. Though filed as a “grievance of a general nature”, commonly referred to as a policy grievance, it did include a detailed statement from the applicant respecting his particular situation and the impact on him of the schedule change. The grievance also sought full redress for the applicant, and a monetary penalty for the discriminatory treatment payable to the applicant. The grievance was subsequently expanded to include similar scheduling issues with a number of other employees.

7The arbitration of the grievance was delayed, and it did not proceed to arbitration for over a year. The arbitration was heard over 7 days from November 2014 to April 2015. The union ultimately withdrew the grievance on April 16, 2016 apparently based on a procedural dispute between the parties respecting the payment of witnesses. Several days later, the union attempted to “withdraw the withdrawal”, which was opposed by the employer. The arbitrator ultimately ruled in Essar Steel Algoma Inc. v United Steelworkers of America, Local 2251, (July 27, 2015; Pallard) (unreported) (the “arbitrator’s decision”) that the union could not withdraw its withdrawal, and the grievance was therefore concluded. The arbitrator’s decision did not address the substance of the grievance.

8Mr. Molinaro indicated at the hearing that he was under the mistaken belief at the time that a human rights application could not be filed while there was an ongoing grievance. After the arbitrator’s decision, Mr. Molinaro advised the applicant that the only option he had was to pursue the matter at the Tribunal. This was also confirmed in the Application, where, in explaining the delay in filing, the applicant set out the history of the grievance in detail, and concluded as follows:

My part in [the grievance] was now finished. As of July 7, 2015 [sic] my complaint was not settled/addressed or ruled on in the arbitration process.

As the complaint did not get resolved I decided to file a complaint with the human rights Tribunal of Ontario.

9This Application was filed on September 17, 2015, over two years after the change in shift incident giving rise to the allegations in this Application began, over 18 months after the applicant returned to work with accommodations, some five months after the grievance was withdrawn, and seven weeks after the arbitrator’s decision.

Analysis and Decision

10Section 34 (1) and (2) of the Code read as follows:

Application by person

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.

Late applications

(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.

11Where an applicant acted with due diligence in making inquiries respecting their rights and demonstrated an intention to have their claims determined at the Tribunal in preference to other proceedings, the Tribunal has found that a delay in filing because of incorrect legal advice may constitute good faith for the purposes of s.34(2) of the Code. See Caron v. Lakeside Plastics Limited, 2014 HRTO 958 (“Caron”) at para. 12, and Patterson v. Mississauga (City), 2012 HRTO 598 (“Patterson”) at paras. 25-26.

12However, the Tribunal has consistently held that waiting for other legal proceedings to conclude before commencing an application will not in and of itself constitute a good faith reason to justify the late filing under s.34(2). See Mu v. Cargill Foods, 2011 HRTO 846 at paras. 38-42, Abutalib v. Toronto Police Services Board, 2010 HRTO 1697, at paras.15-20, Hollett v. Unifor, 2015 HRTO 29 (“Hollett”), at para. 24, Saxon v. Amherstburg Police Services Board, 2015 HRTO 624 (“Saxon”), at paras. 25-26, and Murray v. Craigwood Youth Services, 2011 HRTO 677 (“Murray”).

13I find that the circumstances in the present case fall within with the latter line of cases. It is clear that the applicant intended the matter to be addressed through the grievance, and he did not decide to pursue the matter at the Tribunal until the grievance was at an end. There is no indication that the applicant had any intention to have the matter determined by the Tribunal until after the arbitrator’s decision.

14The applicant could have filed with the Tribunal within one year of the change in his shift, in which case the Application would have been deferred pending the outcome of the grievance, and he would have been able to seek to reactivate the application after the grievance was concluded. He did not, however, file an application within one year. The only reason given is that Mr. Molinaro, who acknowledged that he is not a lawyer or paralegal, was under the impression that an application could not be filed with the Tribunal while there was an outstanding grievance on the same issues. Neither the applicant nor Mr. Molinaro indicated that there was any discussion about filing with the Tribunal prior to the arbitrator’s decision. Even if there had been, however, the Tribunal has held that simply relying on advice from a non-lawyer union representative is insufficient to establish due diligence in making enquiries respecting rights under the Code. See Hollett at para. 30, and Saxon, at para 29.

15For the above reasons, I find that the Application was filed more than one year after the last alleged incident of discrimination for the purposes of s.34(1) of the Code, and that the delay in filing the Application was not incurred in good faith for the purposes of s.34(2). The Application is therefore outside the Tribunal’s jurisdiction and as such must be dismissed.

16Given this finding, it is not necessary to determine whether any party will be substantially prejudiced by the delay. See Esanu v. Georgetown Non-Contact Hockey League, 2009 HRTO 579. It is also not necessary for me to determine whether the substance of the Application was appropriately dealt with in the arbitration proceedings for the purposes of s.45.1 of the Code.

Order

17For the above reasons, the Application is dismissed.