Colhoun v. Hydro One Networks Inc., 2014 ONSC 163

ORAL REASONS FOR JUDGMENT

LEDERMAN J. (orally)

Nature of Proceedings

1The applicant Charles Colhoun (“Colhoun”) applies for judicial review of decisions of the Ontario Labour Relations Board (“the Board”) and the Human Rights Tribunal of Ontario (“the Tribunal”) that dismissed his applications before those bodies for delay. Mr. Colhoun seeks to have his application heard on the merits before the Board.

Background

2On August 30, 2010, Mr. Colhoun’s employment was terminated by Hydro One Networks (“Hydro One”) for allegedly stealing scrap hydro poles. The Power Workers’ Union (“PWU”) filed a grievance on behalf of Mr. Colhoun that reached a mediated settlement on October 26, 2010, resulting in Mr. Colhoun’s resignation in exchange for regular pay for the period of September 2, 2010 to October 26, 2010. Mr. Colhoun signed the settlement agreement acknowledging he understood its terms, had a reasonable opportunity for independent advice with respect to its terms, and that he had been fairly represented by the union.

3On April 25, 2012, Mr. Colhoun filed a complaint with the Board under s. 74 of the Labour Relations Act, S.O. 1995, c. 1, Sch. A, claiming that the PWU had breached its duty of fair representation with respect to the grievance and settlement. Five days later, counsel for the PWU asked the Board to dismiss the complaint due to the 18 month delay between the settlement agreement and the filing of the complaint. Mr. Colhoun submitted that the delay was caused by a combination of health problems, lack of financial resources and the inability to find counsel.

Dismissal for Delay

4The Board issued a decision on December 4, 2012 dismissing Mr. Colhoun’s application for delay. The Board noted that applications brought more than one year after the event in question will usually be dismissed for delay and that delay will be tolerated even less where an application attacks a settlement agreement because settlements are central to resolving labour relations disputes in a timely manner. The Board found that Mr. Colhoun’s explanations did not provide the Board with a basis to deal with the application despite the delay, particularly since it attacks a settlement.

5Mr. Colhoun then sent a request by letter dated January 9, 2013, that the Board review its decision to dismiss. Attached to the letter was a log of activity (“the log”) which purported to explain the delay. In reasons delivered March 7, 2013, the Board held that “[t]he log could have and should have been filed” with the original application and that, even if it had been, “nothing in it suggests why [the applicant] was prevented from filing his application in a timely manner.”

6On January 17, 2013, Mr. Colhoun filed a complaint with the Human Rights Tribunal alleging that both Hydro One and the PWU had breached his rights under the Human Rights Code, R.S.O. 1990, c. H-19 (“the Code”). The Tribunal wrote to Mr. Colhoun indicating that, as required by s. 34(2) of the Code, the complaint had not been filed within one year after the last incident of discrimination and appeared to be beyond the Tribunal’s jurisdiction. The Tribunal also noted that the complaint failed to identify specific acts of discrimination.

7In its decision, the Tribunal held that Mr. Colhoun had not provided a good faith explanation for the delay and accordingly, the Tribunal did not have jurisdiction to hear his complaint.

Reasonableness of the Decisions

8The Divisional Court has held in the past that an Ontario Labour Relations Board decision to dismiss an application for delay involves findings on questions of fact or mixed fact and law which are entitled to a high degree of deference. The standard of review for these decisions is reasonableness. The Divisional Court has also determined in the past that a reasonableness standard of review applies to a Human Rights Tribunal decision dismissing an application due to delay.

9The Board found that Mr. Colhoun’s explanations in his May 7, 2012 letter and the log were not reasonable explanations for the delay. Given the exercise of the Board’s discretion, we find that it was reasonable for the Board to come to that conclusion.

10Moreover, we find that the Board’s decision on delay is more appropriate in view of the fact that Mr. Colhoun is attempting to attack a settlement agreement.

11The Board reasonably applied its past jurisprudence on the issue of delay and its decision falls within a range of acceptable and defensible outcomes.

12As for the Human Rights Tribunal decision, we find that the Tribunal properly and reasonably applied s. 34(2) of the Code. That section states that an application for discrimination must be filed within one year but gives the Tribunal discretion to allow for late filing if the delay was incurred in good faith and causes no substantial prejudice to any respondent. It was reasonable for the Tribunal to determine that the applicant had not provided good faith reasons for the delay, which obviated the need to consider prejudice. This finding is even more reasonable given the Tribunal’s policy of ensuring the expeditious resolution of complaints.

13Having found that both the Board and the Tribunal’s decisions are reasonable, we therefore dismiss the application.

COSTS

14I have endorsed the back of the Record, “For oral reasons delivered, the application is dismissed. In view of the Union’s success on the application, it will have its costs fixed at $1,500, payable by the applicant.”