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)
[1] We 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.
[2] In 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.
[3] The 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.
[4] We 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.
[5] Further, 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.
[6] The 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.
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
ORAL REASONS FOR JUDGMENT
DUNNET J.
Date of Reasons for Judgment: September 9, 2003
Date of Release: September 23, 2003