Tony Biviano v. GM CAMI Assembly and Unifor Local 88, 2017 HRTO 1513

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tony Biviano

Applicant

-and-

GM CAMI Assembly and Unifor Local 88

Respondents

INTERIM DECISION

Adjudicator: Brian Cook

Date: November 17, 2017

Citation: 2017 HRTO 1513

Indexed as: Biviano v. GA CAMI ASSEMBLY

1This Application alleges that the employer discriminated against the applicant because of disability and that the union discriminated against the applicant when it refused to pursue a grievance.

2The applicant indicates that his employment was terminated on December 15, 2014. This would appear to be the last incident of alleged discrimination involving the employer. The Application was filed on May 5, 2017.

3Section 34 of the Ontario Human Rights Code, (“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.

4The Application was not filed within one year of the last incident of alleged discrimination. The applicant indicates that there is a good faith explanation for the delay which is that he was involved in a rehabilitation program. He indicates that this was completed in about June 2016. He then approached the union for assistance in returning to work with the employer but the union refused.

5Assuming, without deciding, that there is a good faith explanation for the delay in filing the Application for the period from December 2015 (the end of the one year period following the allegedly discriminatory termination) to June 2016, the applicant has not provided any explanation for the subsequent delay from June 2016 to May 2017, when the Application was filed.

6On the basis of the available information, I conclude that the Application as against the employer was not filed in accordance with section 34 of the Code and it must be dismissed on that basis.

7In regard to the union, the alleged discrimination was the failure to pursue a grievance when the applicant approached the union for assistance in June 2016. This was something that happened within one year of the May 2017 filing of the Application.

8However, the Tribunal has consistently found that a decision by a union to not pursue a grievance is not discriminatory unless the reason for the decision to not file the grievance was based on one of the grounds in the Code.

9In addition, the applicant appears to have filed a complaint with the Ontario Labour Relations Board against the union at the same time that he filed this Application. When an applicant has filed another proceeding about the same issues as are raised in the Application, the Tribunal will usually defer further consideration of the Application until the other proceeding is complete.

10If the other proceeding appropriately deals with the substance of the Application, the Application may be dismissed on that basis.

ORDER

11The Application against GM CAMI Assembly is dismissed because the Application was not filed in accordance with section 34 of the Code.

12The Application against UNIFOR Local 88 is not dismissed because of timeliness. However, if the applicant wishes to pursue the Application against this respondent, he must provide the following:

• Information about the status of his application to the Ontario Labour Relations Board. If there is a decision, he must provide a copy of the decision. If the matter is proceeding, the applicant must provide submissions about whether the Application at this Tribunal should be deferred until the Ontario Labour Relations Board matter is concluded.

• Information about what evidence would be available to show that the decision to not pursue a grievance was discriminatory.

13The applicant must provide this information by December 15, 2017. If he has not done so by that date the Application may be dismissed as abandoned.