O'Sullivan v. Amcon Management Ltd.

1993-02-22

Ontario Board of Inquiry

Brian O'Sullivan Complainant

v.

Amcon Management Limited, Phil Chapman, Larry Hopkinson, Local 333, Energy and Chemical Workers Union, Morris Dawe and Gerry Goudge Respondents

Date of Decision: February 22, 1993

Before: Ontario Board of Inquiry, Peter A. Cumming

Appearances by: Kaye Joachim, Counsel for the Complainant Lennox A. MacLean, Counsel for the Respondents Maurice [sic] Dawe and Gerry Goudge

PARTIES — TRADE UNIONS — successor union added as respondent — union officers named as respondents — collective agreement incorporates discriminatory provision — LIABILITY — vicarious liability

Summary: The Board of Inquiry rules on preliminary motions regarding the appropriate parties to this complaint, in which Brian O'Sullivan alleges that he was discriminated against because he is HIV positive.

At issue is a term of the collective agreement between Mr. O'Sullivan's employer Amcon Management Limited and his union. The provision allows for termination of an employee who is absent due to an illness for a time longer than his pre-existing seniority or for twelve months.

At the time of the alleged discrimination, Mr. O'Sullivan was represented by Local 333 of the Energy and Chemical Workers' Union (ECWU). However, shortly thereafter there was a union merger and the Canadian Energy and Paperworkers' Union (CEP) stepped into the shoes of ECWU for all purposes relating to ongoing union obligations.

The Board of Inquiry rules therefore that the CEP should be added as a party to the complaint since it has taken on the responsibility for the actions of the pre-existing union.

The Board of Inquiry declines to add as a party the Canadian Brotherhood of Railway and Transport and General Workers (CBRT), the union that represents the workers of Amcon at the time of the hearing. The CBRT became the union representing these employees by virtue of a Canadian Labour Relations Board ruling in February 1992. The collective agreement which covers the Amcon employees because of this order does not contain the impugned provision. Consequently, the Board of Inquiry finds that the CBRT is not a relevant party to this complaint.

The Board of Inquiry also declines to dismiss complaints against the individual respondents Morris Dawe and Gerry Goudge, who were representatives of ECWU at the time the impugned provision of the collective agreement was negotiated. Mr. Dawe and Mr. Goudge argue that any legal obligations which arise from this complaint are those of the formal parties to the collective agreement, not individual officers of the union. However, the Board of Inquiry rules that union officers who participate in the negotiation of a discriminatory clause may be in breach of the Ontario Human Rights Code.

The Board of Inquiry adds the CEP as a party, declines to add the CBRT, and declines to dismiss the complaints against individual union respondents.

Cases Cited

Bouvier v. Métro Express (1992), 1992 CanLII 1429 (CHRT), 17 C.H.R.R. D/313 (Can.Trib.): 18

Canada (Treasury Board) v. Robichaud, 1987 CanLII 73 (SCC), [1987] 2 S.C.R. 84, 8 C.H.R.R. D/4326: 22

Central Okanagan School Dist. No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970, 16 C.H.R.R. D/425: 23, 26, 30, 31

Fu v. Ontario (Government Protection Service) (1985), 1985 CanLII 5209 (ON HRT), 6 C.H.R.R. D/2797 (Ont. Bd.Inq.): 34

Gale v. Miracle Food Mart (No. 1) (1992), 1992 CanLII 14228 (ON HRT), 17 C.H.R.R. D/162 (Ont. Bd.Inq.): 12

Guy v. Canadian Council of Shopcraft Employees and Allied Workers (1985), 86 C.L.L.C. para. 14,057 (Can. L.R.B.): 33

Lacoste v. Energy and Chemical Workers' Union, Local 137 (1988), 89 C.L.L.C. para. 16,001 (Can. L.R.B.): 19, 20, 21, 33

Rapson v. Stemms Restaurants Ltd. (1991), 1991 CanLII 13170 (ON HRT), 14 C.H.R.R. D/449 (Ont. Bd.Inq.): 12

Shaw v. Levac Supply Ltd. (1991), 1990 CanLII 12451 (ON HRT), 14 C.H.R.R. D/36 (Ont. Bd.Inq.): 23

West End Construction Ltd. v. Ontario (Ministry of Labour) (No. 1) (1982), 1982 CanLII 4887 (ON HRT), 3 C.H.R.R. D/1073 (Ont. Bd.Inq.): 12

York Condominium Corp. No. 216 v. Dudnik (No. 2) (1990), 1990 CanLII 12506 (ON HRT), 12 C.H.R.R. D/325 (Ont. Bd.Inq.): 12

Legislation Cited

Canada

Canada Labour Code, R.S.C. 1985, c. L-2, s. 43: 15

Ontario

Human Rights Code, R.S.O. 1990, c. H.19

s. 5(1): 3, 25

s. 5(2): 3, 5, 25

s. 9: 3, 5, 25

s. 10(1): 5

s. 11: 5

s. 11(1): 26

s. 39(1): 10

s. 39(2)(c): 11

s. 39(2)(d): 11

s. 39(3): 11, 37

Labour Relations Act, R.S.O. 1990, c. L.2

s. 63: 15

s. 69: 29

INTERIM DECISION

1The Board of Inquiry hearing was commenced by conference call January 15, 1993. This interim decision deals with several preliminary motions made at the outset of this inquiry. The preliminary motions were heard February 4, 1993.

THE COMPLAINT

2The complainant, Brian O'Sullivan, alleges in his complaint (Exhibit No. 2) that he was unlawfully discriminated against by an employer, the corporate respondent Amcon Management Limited ("Amcon"), two individual respondents, Phil Chapman and Larry Hopkinson who are officers of Amcon, his union being the respondent Local 333, Energy and Chemical Workers Union ("Local 333"), and two individual respondents, Gerry Goudge who was president of Local 333 and Morris Dawe, national representative of the national Energy and Chemical Workers Union ("ECWU") with which Local 333 was affiliated.

3Mr. O'Sullivan has tested HIV positive. His complaint alleges discrimination in employment by the respondents because of handicap, in contravention of ss. 5(1), 5(2) and 9 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

4The factual history of corporate entities and unions in this is complex and diverse.

Although Mr. O'Sullivan commenced employment with Transwares Management Inc. ("Transwares") in 1982, on January 1, 1989, Amcon assumed all of Transwares's functions.

The collective agreement governing Mr. O'Sullivan for the period November 1, 1988, to October 31, 1991 (Exhibit No. 6, p. 11), contained a so-called "deemed termination" clause:

14.03-1 Seniority and employment shall terminate when an employee:

(c) has been absent due to lay off, illness or accident for a time longer than his pre-existing seniority or twelve (12) months, whichever is the lesser;

5The Ontario Human Rights Commission (the "Commission") stated in respect of its preliminary motions that it will argue at this inquiry that an illness of more than one year, such as in Mr. O'Sullivan's case, constitutes a "handicap" within the meaning of s. 10(1) of the Code; hence, the Commission argues that this clause is contrary to ss. 5(1) [and] 9 of the Code. After hearing the arguments on the preliminary motions, it seems that the Commission intends to argue that this clause constitutes constructive discrimination within the meaning of s. 11 of the Code. The complaint also includes an allegation of harassment in contravention of ss. 5(2) [and] 9 of the Code.

6The identical clause set forth above is seen in the first collective agreement of Transwares and Triple A Union of Drivers and General Workers ("Triple A") (Exhibit No. 3, p. 13), and in the second collective agreement, for the period April 1, 1986, to October 31, 1988, between the same parties (Exhibit No. 4, p. 13).

By an agreement of affiliation (Exhibit No. 5) dated August 20, 1988, Triple A became affiliated with the ECWU and Triple A became Local 333.

By a merger agreement (Exhibit No. 10) dated December 1, 1992, ECWU merged with other unions to form the Communications, Energy and Paperworkers Union of Canada ("CEP").

7In September 1991, there was a purchase of a business named Hendrie & Co. Ltd. by the then parent corporation (Glenforest Capital Corp.) of Amcon, and a subsequent corporate reorganization, with a new entity, Hendrie Transportation Inc. ("Hendrie") being created as an affiliated corporation of Amcon, both being subsidiaries of Hendrie Transportation Systems Inc., a new parent holding corporation which replaced Glenforest Capital Corp.

8The employees of Hendrie, a federal undertaking, were represented by the Canadian Brotherhood of Railway, Transport and General Workers ("CBRT") and by an order of the Canada Labour Relations Board dated February 21, 1992 (Exhibit No. 8), the CBRT became the bargaining agent for Amcon and its affiliated corporations. Employees of Amcon became subject to the existing collective agreement between Hendrie and the CBRT which runs to March 31, 1993. As such, Local 333 ceased to represent Amcon's employees as of February 21, 1992.

PRELIMINARY MOTIONS

9Motions were brought by both the Ontario Human Rights Commission and the individual respondents Dawe and Goudge at the outset of the hearing.

The Commission seeks to add the CEP as a respondent party. The individual respondents Dawe and Goudge seek to have themselves removed as individual respondents.

10A board of inquiry must determine whether a right of the complainant under the Code has been infringed, if so, who infringed the right, and decide upon the appropriate order: s. 39(1), Code.

11Sections 39(2)(d) [and] 39(3) empower a board to add as a party "any person appearing to the board of inquiry to have infringed the right" of the complainant. As well, it is noted that s. 39(2)(c) states that the parties to a proceeding before a board include "any person who the Commission alleges has infringed the right."

12Boards of inquiry commonly add a person as a respondent to a complaint if it appears the respondent was involved with the factual incidents germane to the complaint and no prejudice would result by reason of the delay in becoming a party. See, for example, Gale v. Miracle Food Mart (April 1992) (interim decision of Ont. Bd.Inq.), (Professor Constance Backhouse) not yet reported [now reported 1992 CanLII 14228 (ON HRT), 17 C.H.R.R. D/162]; Tabor and Lee v. Scott and West End Construction Limited (1982), 1982 CanLII 4887 (ON HRT), 3 C.H.R.R. D/1073; Dudnik v. York Condominium Corp. No. 216 (No. 2)(1990), 1990 CanLII 12506 (ON HRT), 12 C.H.R.R. D/325; and Rapson v. Stemms Restaurants Ltd.(1991), 1991 CanLII 13170 (ON HRT), 14 C.H.R.R. D/449.

MOTION BY THE COMMISSION TO ADD CBRT AS A RESPONDENT

13The CBRT is the trade union which currently represents the employees of Amcon. The Commission initially sought to have the CBRT added as a respondent party but after some argument withdrew this motion. The CBRT was not a party to the collective agreement (Exhibit No. 6) that prevailed at the times pertinent to the complaint; nor was the CBRT Mr. O'Sullivan's union at the times pertinent to the complaint; and the employees of Amcon became subject to the pre-existing collective agreement between Hendrie and the CBRT in effect for the period April 1, 1990–March 31, 1993 — the CBRT did not become a party to the existing collective agreement between Local 333 and Amcon. The terms of the collective agreement (Exhibit No. 9) between the CBRT and Hendrie differ in respect of "termination" from the collective agreement (Exhibit No. 6) at issue. The CBRT became the bargaining agent February 22, 1992, only after the events that gave rise to the allegations of the complaint (Exhibit No. 2), signed February 28, 1992.

MOTION TO ADD THE COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION OF CANADA (CEP) AS A RESPONDENT PARTY

14By the merger agreement (Exhibit No. 10) dated December 1, 1992, the ECWU merged with other unions to form the merged union, CEP. The Commission seeks to add CEP as a party to this proceeding.

15Section 63 of the Ontario Labour Relations Act, R.S.O. 1990, c. L.2 and s. 43 of the Canada Labour Code, R.S.C. 1985, c. L-2, both of which deal with "successor rights and obligations," were referred to by the Commission in support of its motion. However, s. 63 of the Ontario legislation serves to confer a power upon the Ontario Labour Relations Board, and s. 43 of the Canada Labour Code, while broader in scope than the Ontario provision, seems to be dependent upon the ECWU being the bargaining agent at the time of the merger — December 1, 1992 — which it was not (the CBRT having become the bargaining agent as of February 22, 1992).

16CEP's counsel argues that CEP cannot be held responsible for any breaches of the Code by the ECWU, if such there were. Much argument ensued on this motion. No reference was made to para. 28 of the merger agreement, but on reviewing it, I note that it reads:

28. As of the effective date of the merger, the merged Union and/or its Locals shall assume all collective bargaining and representation responsibility previously held by the CPU, CWC and ECWU and their Locals. Upon termination of the separate existence of the CPU, CWC and ECWU, the merged Union shall be substituted for the CPU, CWC or ECWU as a party to any suit, action, or proceeding in which the CPU, CWC or ECWU may then be a party and in any order then outstanding against them or in their favour, as if the merged Union had originally been such a party or been named in such order, and the officers and Executive Boards of the CPU, CWC and ECWU shall execute any transfer, deed, authorization, release, document, or other instrument or take any other action necessary to effectuate such purpose. The merged Union will indemnify and save harmless any officer or member of the CPU, CWC or ECWU by reason of any claim made against them by reason of any trade union, collective bargaining or membership activity engaged in prior to the effective date. [Emphasis added.]

17The complaint (Exhibit No. 3) would constitute "a proceeding," and the complaint, dated February 28, 1992, preceded the merger agreement. However, while Local 333, ECWU was then a named party to the complaint, the affiliated national union, ECWU, was not. It is noted that by the point in time of the complaint, February 28, 1992, the CBRT had become the bargaining agent — as of February 22, 1992 — for the employees represented up to that time by Local 333. However, Local 333, albeit defunct in an operational sense, is a respondent party to the complaint. It seems the complaint proceeding was extant (December 1, 1992) at the time of the merger, with Local 333 as a party. From my review of the case law, to be discussed below, it seems clear that the national union could in appropriate circumstances be liable for the actions of its local. Moreover, the national representative, Morris Dawe, of the national union, ECWU, was a named individual respondent to the extant complaint, and the allegations are specifically directed against Mr. Dawe (see para. 12 of the complaint — Exhibit No. 2) in his capacity as a representative of the ECWU. In my view, there is certainly an argument that para. 28 of the merger agreement (Exhibit No. 10) obligates CEP with respect to the complaint "proceeding" to be substituted for the ECWU in respect of this inquiry.

Apart from the merger agreement it seems to me that CEP has stepped into the shoes of the ECWU for all purposes relating to ongoing union obligations.

18The case at hand is distinguishable from that seen in Bouvier v. Métro Express, a decision of a Canadian Human Rights Tribunal (July 30, 1992) as yet unreported [now reported 1992 CanLII 1429 (CHRT), 17 C.H.R.R. D/313]. In that case, a federal human rights tribunal was not prepared to add a corporation which had no legal relationship with a named corporate respondent other than that it had purchased assets of the named corporate respondent in an arms-length transaction about two years after an infringement of the human rights legislation by an employee of the named corporate respondent (at pp. 18, 38, 39).

19The Canada Labour Relations Board decision in Lacoste v. Energy and Chemical Workers' Union, Local 137 (1988), 89 C.L.L.C. para. 16,001 is also distinguishable. In that case, unknown to the complainant dismissed employees, a decision to proceed to arbitration was withdrawn by the union. The complainants alleged the respondent union violated its duty not to act in a manner that is arbitrary, discriminatory or in bad faith. The Board held that given the facts, it could not substitute its judgment for that of the union officers inasmuch as their judgment was not "characterized by arbitrariness, discrimination or bad faith" (at p. 14,007).

20A preliminary issue related to the question as to whether Teamsters Local 931, which had been certified by the Board as the bargaining agent for the bargaining unit to which the complainants belonged after the events relating to the withdrawn decision as to arbitration but before the conclusion of the Board's hearing as to the complaints arising from those events, could be made a party to the proceedings. The Board held (at p. 14,006):

[T]here was in reality no merger or transfer of jurisdiction, voluntarily and freely, between E.C.W.U. and the Teamsters during the change of union allegiance. In fact, this change of allegiance was ordered and ratified by a certification order issued by the Board . . .

21In the instant situation there was a merger and transfer of jurisdiction, voluntarily and freely, between the ECWU and the CEP. Moreover, in Lacoste, supra, the ECWU remained as a continuing entity after the certification order, whereas in the instant situation the national ECWU has ceased to exist, having merged with the CEP.

22I am mindful of the reasoning of the Supreme Court of Canada in Robichaud and the Canadian Human Rights Commission, 1987 CanLII 73 (SCC), [1987] 2 S.C.R. 84 [8 C.H.R.R. D/4326], nicely summarized in the headnote (at 85):

Since the Act is essentially concerned with the removal of discrimination, as opposed to punishing anti-social behaviour, the motives or intentions of those who discriminate are not central to its concerns. Rather, the Act is directed to redressing socially undesirable conditions quite apart from the reasons for their existence. Theories of employer liability developed in the context of criminal or quasi-criminal conduct are therefore completely beside the point as being fault oriented. The liability of an employer, too, ought not be based on vicarious liability, as developed under the law of tort, which was confined to activities done within the confines of a person's job, but rather in terms of the purpose of the Act. The remedial objectives of the Act would be stultified if its remedies, especially those set out in ss. 41 and 42, were not available as against the employer. The Act is concerned with the effects of discrimination rather than its causes (or motivations): only an employer can remedy undesirable effects and only an employer can provide the most important remedy — a healthy work environment. The legislative emphasis on prevention and elimination of undesirable conditions, rather than on fault, moral responsibility and punishment, supports making the Act's carefully crafted remedies effective. If the Act is to achieve its purpose, the Commission must be empowered to strike at the heart of the problem, to prevent its recurrence and to require that steps be taken to enhance the work environment.

23Although Robichaud, supra, involved the Canadian Human Rights Act, this reasoning applies similarly to the Code, at least insofar as the issue under consideration is concerned, being the issue of determining which persons are appropriate party respondents: cf. Shaw v. Levac Supply Ltd.(1990), 1990 CanLII 12451 (ON HRT), 14 C.H.R.R. D/36 at D/66 [and] D/67. In appropriate circumstances a union can have co-responsibility with an employer to provide a healthy work environment (for example, see Renaud v. Board of School Trustees, School District No. 23 (Central Okanagan), a decision of the Supreme Court of Canada released September 24, 1992, as yet unreported [now reported 1992 CanLII 81 (SCC), 16 C.H.R.R. D/425], discussed below). If the Code is to achieve its purpose, then the Commission "must be empowered to strike at the heart of the problem, to prevent its recurrence and to require that steps be taken to enhance the work environment." This approach necessitates that the union, CEP, which has stepped into the shoes of the union (ECWU) which was a participant to the negotiations leading to the alleged discriminatory collective agreement (Exhibit No. 6) be a respondent party and thereby be accountable (if ultimately there is a finding that the ECWU was in breach of the Code) even though the CEP does not now represent Amcon's employees.

24There would appear to be no prejudice whatsoever to CEP being added as a party at this stage in the proceeding. It is noted also that an amended complaint could have named CEP as a respondent once the Commission had become aware of the merger agreement (Exhibit No. 10) of December 1, 1992.

MOTION OF RESPONDENTS, MORRIS DAWE AND GERRY GOUDGE, TO DISMISS THE COMPLAINT AGAINST THEM

25The individual respondents, Maurice Dawe and Gerry Goudge, asked that the complaint against them be dismissed on several bases.

First, they [s]ay the complaint does not disclose any allegations of fact which could reasonably be argued in law to implicate them in any personal infringement of ss. 5(1), 5(2) or 9 of the Code. The essence of the argument is that, at most, the complaint alleges actions by them in their capacity as union representatives and accordingly only the union can be a party. In my view, even if an individual is acting on behalf of a juristic person such as a corporation or a union the individual(s) who is the directing mind of the artificial entity's unlawful actions (if they are found to be such after all the evidence is heard) is in breach of the Code just as the entity would be. Section 9 of the Code says "No person shall infringe . . ." embracing both individuals and artificial entities.

26As well, both artificial entities and the individuals who act for them can infringe the Code through constructive discrimination as referred to in s. 11(1) of the Code. If, for example, the individuals responsible for a union's conduct of its business refused to allow the union to reasonably accommodate the person complaining of the constructive discrimination then the union would be in breach of the Code (as seen in Renaud, supra) and the individuals causing the union to be in breach of the Code would themselves be in breach (in Renaud there were not any union officers named as respondent parties, so that case is not pertinent on its facts to this latter point). The complainant makes an allegation that, "My requests for assistance and action [from the union] were totally ignored" (complaint — Exhibit No. 2, para. 13).

27Mr. Charles Walker, operations manager for Amcon, gave evidence as a witness called by the Commission. He was a participant in the negotiations of the collective agreement (Exhibit No. 6) for the period November 1, 1988, to October 31, 1991. He testified that the respondent, Morris Dawe, as national representative of the national ECWU, attended some negotiating meetings as a participant advising Local 333, and also sometimes assisted Local 333 in the grievance process.

Similarly, Mr. Gerry Goudge, President of Local 333, called as a witness by the Commission, testified that on occasion Mr. Dawe would assist Local 333 in the collective bargaining process.

28The Commission advised during argument on the preliminary motions that it intends to argue at the conclusion of the inquiry first, that clause 14.03-1 of the collective agreement constitutes unlawful discrimination with respect to some persons, like the complainant, because of handicap. Second, the Commission says it will argue that the ECWU is responsible for the actions of Mr. Dawe and that Mr. O'Sullivan requested assistance from the ECWU but Mr. Dawe failed to take appropriate steps to assist Mr. O'Sullivan with respect to the employer's alleged discrimination. Similarly, Mr. O'Sullivan asserts that Mr. Goudge, President of Local 333, is in a similar position.

29Counsel for Messrs. Dawe and Goudge argues that any legal obligations arising from the factual history alleged in the complaint arise on behalf of the formal parties to the collective agreement (Exhibit No. 6) and not in respect of individuals acting on behalf of those entities. In support, he referred to s. 69 of the Labour Relations Act, R.S.O. 1990, c. L.2, which imposes a duty of fair representation upon the union.

30In Renaud v. Board of School Trustees, School District No. 23 (Central Okanagan), supra, a union refused to consent to a change in the collective agreement whereby the work schedule for the complainant could be modified to meet his requirement as a Seventh-day Adventist to not work on his sabbath. The condition of employment that Mr. Renaud work on Friday nights was held to be adverse effect discrimination. The Supreme Court of Canada held that if "reasonable accommodation is only possible with the union's co-operation and the union blocks the employer's efforts to remove or alleviate the discriminatory effect" (at p. 5 [D/437, para. 37] then the union itself becomes a party to the discrimination. As well, the Court held that a union that participates in the formulation of a work rule in the collective agreement may itself cause or contribute to the discrimination (at p. 5 [D/436, para. 36]).

31In my view, the Renaud case, supra, supports the proposition that a union, such as the ECWU in the instant situation, may be in breach of the Code if a clause in the collective agreement unlawfully discriminates, or if the union frustrates an attempt at reasonable accommodation by the employer where there is adverse effect discrimination under the collective agreement. The allegations of the complaint have not yet been proven in this hearing; however, the union is a proper respondent party, given those allegations, as are Messrs. Dawe and Goudge who participated in the negotiations of the collective agreement. The fact that it was only the union, and not its officers as well, that was a respondent in Renaud (a matter not commented upon by the Supreme Court of Canada, presumably because there was no need to given that no officers of the union were named as respondents) is of no import, at least at this stage of the proceedings in this inquiry. It is enough to say that the allegations suggest that facts may be established by the evidence such that the union (ECWU) and its officers may be found to be in breach of the Code.

32Mr. Dawe's counsel argues that an individual union officer of an affiliated national union cannot in any circumstances be held to have a duty [to] accommodate imposed upon a local union that is the party to the collective agreement. I disagree. Without implying any findings of fact or making any final conclusions of law based upon the facts as they may be established by the evidence, I simply find that prima facie any union officer (even of an affiliated national) who participates in negotiations in support of a discriminatory clause (if such it is) being included in the collective agreement, may himself/herself be found to be in breach of the Code.

33I note that in Guy v. Canadian Council of Shopcraft Employees and Allied Workers (1985), 86 C.L.L.C. p. 14,057 that the Canada Labour Relations Board held that more than one union can be responsible for the breach of the duty of fair representation. The acts of a local can bind an international union or council of trade unions. In Lacoste v. Energy and Chemical Workers' Union, Local 137, supra, at p. 14,007 the Canada Labour Relations Board indicated that it "must allow the union to exercise its sovereign and absolute mandate to interpret and administer the collective agreement" provided that "the union's judgment was [not] characterized by arbitrariness, discrimination or bad faith."

34In Fu v. Ontario Government Protection Service (1985), 1985 CanLII 5209 (ON HRT), 6 C.H.R.R. D/2797 I discussed various types of situations in which a person could be in breach of the Code, the third type of situation being, at D/2800, para. 22922, as follows:

(3) Where the individual employer [himself] takes no direct action of discrimination but authorizes, condones, adopts or ratifies an employee's discrimination, then the employer is . . . personally liable for contravening the Code . . . as it is the employer himself who has infringed or done, directly or indirectly, an act, "that infringes a right under this Part" (section 8). Section 8 of the Code says "No person shall infringe or do . . . anything that infringes a right . . ." The employer is infringing or doing something by its mere passive inaction of allowing an infringement of a right in the workplace when the employer could rectify the situation. To do nothing can be, in the circumstances, to"do" something that "infringes a right" within the meaning of section 8.

In my view this reasoning with respect to an employer is applicable to a national union that allows an infringement (if such is the case) of a right in the workplace if it was in a position to rectify the situation.

35The individual respondents Morris Dawe and Gerry Goudge claim also that they have not been provided with material facts and particulars. I disagree. It is clear from the evidence submitted to this point and the arguments made in respect of these preliminary motions that counsel for the respondents Dawe and Goudge is well aware of the factual allegations of the complainant and the legal issues the Commission intends to argue, if those factual allegations are established by the evidence. Moreover, counsel for the Commission stipulated that a "case summary" prepared by the Commission summarizing the evidence gathered during its investigation had been provided to the respondents.

36For the reasons given, I dismiss the preliminary motion by the respondents Dawe and Goudge to dismiss the complaint against them.

ORDER

37I am prepared to grant Commission's motion to add the CEP as a respondent party. It appears to me that the ECWU may have infringed a right of the complainant's [sic] under the Code. In my view, if such infringement is found to have occurred, then CEP may be liable in law for ECWU's transgression. The ECWU no longer exists. The CEP has stepped into its shoes howsoever those shoes may fit uncomfortably. I will exercise the discretion conferred upon me by s. 39(3) to add the CEP as a party at this initial stage of the board of [i]nquiry proceeding. The complaint of Brian O'Sullivan against Amcon et al. will be amended to include as a respondent the Communications, Energy and Paperworkers Union of Canada.