Reenie White v. Canadian Union of Public Employees, Local 167
1694-98-U Reenie White, Applicant v. Canadian Union of Public Employees, Local 167, Responding Party v. The Regional Municipality of Hamilton-Wentworth, Intervenor.
BEFORE: Marilyn Silverman, Vice-Chair.
APPEARANCES: Yola Grant, Reenie White and Sandy White for the applicant; John Elder, Gus Oliveira, Al Peti and Brian McCormack for the responding party; David Beck, Wendy Anderson and Ed Herechuk for the intervenor.
DECISION OF THE BOARD; April 14, 2000
1This is an application under section 96 of the Labour Relations Act, 1995, S.O. 1995, c.1, as amended ('the Act') in which the applicant claims that the responding trade union ('the union') has violated section 74 of the Act.
2The applicant ("Ms. White") was employed by the Regional Municipality of Hamilton-Wentworth ("the employer") until her discharge on August 4, 1997. She was terminated on the basis of the employer's assertion that she did not have medical documentation necessary to justify her continued absence from work. The applicant was a member of the union's bargaining unit. She was employed in the Social Services department and at the time of her discharge had been employed for approximately 8 years.
3The hearing was held in this matter on July 5 and November 3, 1999. Prior to the second scheduled day of hearing and confirmed on that date, counsel for the employer advised the Board that it would no longer be participating in the hearing as the remedy requested by the applicant was monetary damages from the union and not reinstatement with the employer.
4The basis of Ms. White's claim against the union is that they breached their duty to represent her in respect of her return to work after illness. Ms. White suffers from clinical depression. As a result of this she was off work and prepared to return to an accommodated position in November of 1994. At some point between November 1994 and February 1995 she and the employer did arrive at a mutually agreeable return to work program. Unfortunately once implemented, the program was not successful from her perspective and in May 1995 she retained independent counsel (not counsel representing her at this hearing) to assist her in dealing with the employer.
5Ms. White then-counsel forwarded a letter to the employer setting out Ms. White's position. There was correspondence and discussions during the period September 1994 to August 1995 neither of which resolved the return to work to Ms. White's satisfaction (although there was a brief return to work during this period).
6On April 2, 1996 Ms. White filed a complaint against the union with the Ontario Human Rights Commission ("the Commission") regarding the union's role in her accommodation attempts.
7Section 74 of the Act provides:
- A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.
8Ms. White seeks the following remedies:
(a) damages for a period of time during which she claims she should have been accommodated;
(b) damages for loss of opportunity to be reinstated to meaningful work; and
(c) legal costs.
9Her complaint against the union is that she was dealt with unfairly in that it did not provide the representation required of them to ensure that the employer complied with its duty of accommodation under the Ontario Human Rights Code. She is not disputing her discharge as part of this application but rather the events between November 1994 and August 1995.
10The union disputes the substance of the instant application. However, prior to hearing the merits of the case, the union raised preliminary motions namely:
a) that the application should be dismissed on the basis of undue delay for which no satisfactory explanation was provided by the applicant;
b) that there was no prima face case presented; or
c) that no labour relations purpose would be served as substantially the same facts and allegations as are pleaded in the instant application has already been disposed of (in the union's favour) by the Ontario Human Rights Commission.
11The parties agreed that I would dispose of the preliminary issues first and then schedule additional hearing days, if necessary, to continue with the merits of this application.
Delay
12The application was filed on August 11, 1998. The events that form the subject matter of the dispute occurred in or about the period from September 1994 to July 1995. The basis of the complaint is in regard to the union's representation of Ms. White in achieving a workplace accommodation. This accommodation was necessitated by her medical disability. The applicant's position is that the union failed to negotiate an appropriate return to work for her and in their interactions with the employer did not fulfill their section 74 duty to her.
13The applicant filed a complaint before the Ontario Human Rights Commission on April 22, 1996. The Union responded to the complaint on May 29, 1996 in which it asserted that its position was that the proper forum to hear and determine this matter was the Ontario Labour Relations Board. By decision dated November 15, 1996, the Commission, in the exercise of its discretion, declined to deal with the matter on the basis that the application could more appropriately be dealt with pursuant to section 74 of the Act. A reconsideration request was dismissed by the Commission on February 12, 1997.
14The union contends that the applicant knew from May 1996 on, by virtue of the union's response to the human rights complaint, that section 74 of the Act was an option for her. The delay between that knowledge and the filing of this application was in excess of two year. By letter from the union to the Commission in response to the human rights complaint, dated May 29, 1996, the union stated:
It is submitted that the Complaint in its entirety is in fact an assertion by the Complainant that the representation that she received from Local 167 through it [sic] representatives Mr. Clairmont and Mr. Peti, was somehow inadequate and/or ineffective. That is, all the allegations relate to the purported inadequacies of the representation received by the Complainant. A complaint by a member of a bargaining unit that she was not afforded adequate representation by a trade union directly falls under the purview of Section 74 of the Ontario Labour Relations Act. In particular Section 74 of the OLRA A [sic] provides that a trade union shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of employees in the bargaining unit. Accordingly, it is our position that the allegations set-out in this complaint could be and should be more properly dealt with under the OLRA.)
15By decision dated November 15, 1996 the Commission reached its decision and adopted the union's position as follows:
The evidence indicates that the provisions of the Labour Relations Act could more appropriately deal with the issues raised in the complaint. A complaint by a member that she was not afforded adequate representation by a trade union directly falls under the purview of Section 74 of the Labour Relations Act. In particular, Section 74 of the OLRA provides that a trade union shall not act in a manner that is arbitrary, discriminatory or in bad faith in representation of employees in the bargaining unit.
16By February 12, 1997, the date that the Commission rejected her reconsideration request the applicant knew that the union's position was shared by the Commission. Still she did not exercise the section 74 option and file the instant application until 18 months later in August of 1998. The union asserts that the applicant had counsel and that both her and her then counsel were aware (through the position taken by the union in respect of the human rights complaint) that she could make application under section 74 of the Act. The union contends that this delay substantially prejudices it as there is significant retrospective liability involved. They also assert that there is no satisfactory explanation for the inordinate delay.
17Ms. White gave evidence under oath. Her position is that she suffers from a psychiatric illness that during the period in question rendered her incapable of taking the requisite steps to file a section 74 application. Further, she had retained a lawyer whom she said did not advise her appropriately in her dealings with the union and the employer. She gave evidence that she did hire retain a lawyer in May of 1995 to deal with the employer regarding her job accommodation. At the time she was under the care of a psychiatrist. He continued to represent her up until March 1997. In February 1998 she obtained a second legal option and in August 1998 she filed the instant application on her own. She filed it without legal assistance. She stated that until then she did not know she could file a section 74 complaint without a lawyer. She stated that the February 1997 to August 1998 delay was brought about because there were many days during that period that she was too ill and did not feel that she had sufficient support to deal with this matter. She stated that the reason she did not file the instant complaint earlier was that her lawyer's advice was that it would be a duplication of effort and that the matter was properly before the Commission. Further she was severely depressed at the time and unable to deal with this matter, other than to take the advise proffered by her counsel. During cross examination the applicant repeated that she left the matter in the hands of her lawyer. She contends that she was not sure of whether she was aware of the position taken by the union before the Commission that this matter should be dealt with under section 74 of the Act until the date of this hearing. She stated that her lawyer said he would appeal the Commission's decision.
18In City of Mississsauga the Board enunciated the factors that are considered in a case of delay namely; the length of the delay, the explanation for the delay, the relief sought and the relative prejudice to the parties should the application be permitted to proceed. Based on a consideration of all of these factors I find in favour of the position put forth by the union. I refer to paragraph 22 of that decision which states:
- A perusal of the Board cases reveals that there has not been a mechanical response to the problems arising from delay. In each case, the Board has considered such factors as: The length of the delay and the reasons for it; when the complainant first became aware of the alleged statutory violation; the nature of the remedy claimed and whether it involves retrospective financial liability or could impact upon the pattern of relationships which has developed since the alleged contravention; and whether the claim is of such nature that fading recollection, the unavailability of witness, the deterioration of evidence, or the disposal of records, would hamper a fair hearing of the issues in dispute. Moreover, the Board has recognized that some latitude must be given to parties who are unaware of their statutory rights or, who, through inexperience take some time to properly focus their concerns and file a complaint. But there must be some limit, and in my view unless the circumstances are exceptional or there are overriding public policy considerations, that limit should be measured in months rather than years.
19Having considered the evidence and submissions of the parties, I am satisfied that the Board should not inquire further into this particular complaint on the basis of the 18 month delay. Section 96(4) of the Act provides for the exercise of my discretion in certain circumstances not to inquire into a complaint of this nature.
20The reason that I have chosen to exercise my discretion under section 96(4) of the Act in this way is in large measure due to the fact that the applicant had counsel during the period when the complaint would have been timely and she also had direct information from the union and from the documents she received from the Commission to indicate that the section 74 Labour Board option was available to her. I am sympathetic to her position that her inability to file the complaint in a timely fashion was driven by her particular medical problem, however, in considering the relevant factors in a motion of this kind it appears to me that they favour the union's position. Firstly, the length of delay of at least 18 months is a substantial period of time. The union quite reasonable assumed that Ms. White was pursuing other legal recourse and more importantly when she was not pursing a section 74 application. The fact that the applicant knew or ought to have known of the section 74 option during the period of the delay is also significant. Well before August 1998, when this application was finally made, the union was entitled to be reasonably secure in the position that no application of this kind would arise.
21The reasons underlying the delay are unfortunate: namely the effects of Ms. White's illness. However, the applicant was not so incapacitated that had she been advised to do so she could not have filed an application. Her position is that the principle reason she did not file a section 74 complaint in the long period of delay was the fact that she was not advised by her then counsel to do so. That is not a satisfactory explanation for the delay. Her complaint deals with incidents that occurred in 1994 and 1995. The union is expected to address these in 1998. The availability and recollection of witnesses, documents and the accuracy of any testimony the available witnesses might be able to provide is seriously undermined by the considerable passage of time. Were this matter to proceed witnesses would be expected to testify to matters which occurred approximately 6 years ago. As a consequence the union would be significantly prejudiced in preparing a defence to the complaint.
22I have read and considered the authorities provided to me by counsel for the applicant in respect of delay The University of Western Ontario, [1995] O.L.R.D. No. 2550 and Environmental Abatement Services Inc. [1994] O.L.R.D. No. 2864.
23In the Environmental Abatement case the delay was a matter of 5 months which is substantially shorter than the delay in this case. It is interesting to note that paragraph 35 of the case asserts the proposition which the responding union relies on to a certain extent in the instant case;
... But a complainant who awaits the final outcome in one forum before initiating proceedings before this Board and does not put a respondent on notice of such potential litigation in the interim, risks the exercise of the Board's discretion to decline to hear a complaint because of the effect of such a delay.
24I rely in this case on both the decisions in City of Mississauga [1982] OLRB Report March 420 and Sheller Globe Canada Ltd. [1982] OLRB Report Jan. 113 at paragraph 15:
- In the present case, the delay has indeed been "extreme", and the factors put forward by the complainant are insufficient to deliver her from the consequences of that delay. Certainly the Board has no quarrel with the notion of an aggrieved individual investigating other avenues of redress prior to launching a section 68 [now section 69] application with the Board. But a point is reached, after a reasonable period of time, when the individual must decide whether it is going to go against the trade union or not, and if so, then overt steps must be taken in that direction. The individual cannot rely indefinitely on the efforts being taken on his or her behalf in other directions, and then come back against the trade union when those efforts prove fruitless.
25Having determined that this application is dismissed on the basis of delay, I do not need to deal with the other two aspects of the union's preliminary motion.
26For the reasons stated, this application is therefore dismissed.
"Marilyn Silverman"
for the Board