Ontario Labour Relations Board
3604-00-OH Telford DeSouza, Applicant v. Innovative Roller Technology Inc., Brian Venis and Jim Martin, Responding Parties.
BEFORE: D. L. Gee, Vice-Chair.
DECISION OF THE BOARD; April 19, 2001
This matter is an application under section 50 of the Occupational Health and Safety Act. The applicant alleges that his hourly rate of pay was reduced as of July 2, 1999 as a reprisal for his having filed a complaint with the Ministry of Labour concerning health and safety issues in the workplace. The application was filed on March 8, 2001, one year and eight months after the alleged reprisal.
Subsection 50(3) of the Occupational Health and Safety Act grants the Board a discretion as to whether or not it will enquire into a complaint filed under section 50. One of the factors that the Board typically considers in the course of determining whether or not it will enquire into a complaint is any delay that occurred between the events complained of and the filing of the complaint. Although each matter is determined on its own merits, the Board’s jurisprudence suggests that, absent a compelling explanation for the delay, the Board will not enquire into a complaint filed in excess of a year after the events relied upon to found the complaint.
The factors that the Board considers in the course of determining whether it will enquire into a complaint are aptly summarized in The Corporation of the City of Mississauga, [1982] OLRB Rep. 420, a decision dealing with an application pursuant to what is now section 74 of the Labour Relations Act, 1995, as follows:
A perusal of the Board cases reveals that there has not been a machanical [sic] 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 libility [sic] 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 witnesses, 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.
In the present matter, the applicant has offered no explanation for the one year and eight month delay that occurred between the employer’s reduction to his hourly rate and the filing of the instant application. The remedy claimed involves retrospective financial liability. As a result, it is my determination that it is appropriate for the Board to exercise its discretion and refuse to enquire into this application.
This matter is hereby dismissed.
“D. L. Gee”
for the Board