COURT FILE NO.: 701/01

DATE: 20030909

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

cunningham a.c.j., dunnet and coo jj.

B E T W E E N:

GEORGE MIANOWSKI

Applicant

• and -

ONTARIO HUMAN RIGHTS COMMISSION and LEVER POND’S, A Division of U.L. CANADA, INC.

Respondents

Thomas J. Gorsky, for the Applicant

Prabhu Rajan, for the Ontario Human Rights Commission

Douglas K. Gray, for the Respondent, Lever Pond’s A Division of U.L. Canada, Inc.

HEARD: September 9, 2003

DUNNET J.: (Orally)

1We are not persuaded that the application for judicial review was pursued with diligence, however, we do not find it necessary to deal with the applicant’s delay in perfecting the appeal.

2In our view, there was a rational basis for the Commissioner’s exercise of his discretion not to deal with the applicant’s complaint. The parties engaged an arbitrator and consented to his private mediation of the dispute. His report was prepared at the request of the union after the grievance was at an end. Any privilege that may have attached to the report was waived, when the union gave it to the employer. In any event, the applicant was not a party to the arbitration process in which the mediation occurred and therefore, he cannot claim privilege in the report.

3The report was not used in the s.34 analysis to determine whether the applicant had a viable claim. Rather, it was used to assess the extent to which he had access to the grievance procedure and the appropriateness of the procedure under the Labour Relations Act. We accept that the small excerpt of the report, to which reference is made by the Commissioner in his reasons, is reliable and persuasive.

4We find no error in the Commissioner’s decision under s.34(1)(a) of the Code that the complaint could or should be more appropriately dealt with under the Act. The Commissioner did not interpret the Act, but only examined the process available.

5Further, we find no error in the decision of the Commissioner under s.34(1)(b) of the Code that the applicant agreed to mediation on the arbitration, chose not to accept the resolution options available to him, and instead proceeded to use another forum to litigate the same facts. Accordingly, the decision of the Commissioner is not patently unreasonable. It follows that the decision of the Commission under s.37 of the Code is not patently unreasonable.

CUNNINGHAM A.C.J.

6The application record will read, “The application is dismissed for reasons given orally this day. Costs to the Ontario Human Rights Commission fixed at $1,000 and Lever Pond’s, given divided success, at $2,000.”

CUNNINGHAM A.C. J.

DUNNET J.

COO J.

Date of Reasons for Judgment: September 9, 2003

Date of Release: September 23, 2003

COURT FILE NO.: 701/01

DATE: 20030909

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

cunningham a.c.j., dunnet and coo jj.