HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Margarita Arias

Applicant

-and-

Centre for Spanish Speaking Peoples and Ontario Public Service Employees Union

Respondents

INTERIM DECISION

Adjudicator: Michael Gottheil

Date: July 10, 2009

Citation: 2009 HRTO 1025

Indexed as : Arias v. Centre for Spanish Speaking Peoples

Appearances:

Margarita Arias, Applicant Barbara Adamson, Representative

Centre for Spanish Speaking Peoples Carita Pereira, Counsel

Respondent

OPSEU, Respondent Nini Jones, Counsel

Introduction

1This is an Application filed July 29, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (“the Code”). The Application alleges discrimination in employment on the grounds of age and reprisal.

2The applicant is employed as an administrative assistant with the Centre for Spanish Speaking Peoples (“CCSP”), though she has been off work on medical leave since early 2008. She claims that she was subjected to harassment at work because of her age. She also claims that she was treated differently in her employment because she is an older worker.

3In an interim decision, 2008 HRTO 132 (the “October 2008 decision”), I ordered that a hearing be scheduled to deal with two issues: a request by both respondents to defer the Application pending the outcome of a Duty of Fair Representation complaint before the Ontario Labour Relations Board (“OLRB”), and whether the Application established a prima facie case of discrimination against either or both respondents. I also directed the respondent CSSP to file a complete Response, and provided the applicant the opportunity to file a Reply.

4The hearing to deal with the issues identified in the October 2008 decision was held on May 13, 2009. For the reasons that follow, I find that the Application should be dismissed as against the Ontario Public Service Employees Union (“OPSEU”). I also find the Application should proceed as against the respondent CSSP, but the applicant will be required to provide a revised statement of material facts.

5At the outset of the hearing, counsel for OPSEU noted that the Application identified OPSEU Local 512 as a respondent. She advised that Local 512 is an administrative unit, and the legal bargaining agent is OPSEU. As a result, it was submitted that the proper name of the union respondent is OPSEU. Neither of the other parties objected to this request. Based on the positions of the parties, the style of cause shall be amended to read “Ontario Public Service Employees Union.”

Does the Application Disclose a Prima Facie Case?

6In Jagait v. IN TECH Risk Management, 2009 HRTO 779, the Tribunal set out the appropriate approach when considering requests to dismiss an Application because it does not disclose a prima facie case:

18The onus is on the applicant to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant's favour in the absence of an answer from the respondent: see Ontario Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (S.C.C.), 1985 CanLII 18 (S.C.C.), at para. 28. Upon establishing a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that its actions were not discriminatory.

19It is well-established that the threshold for establishing a prima facie case of discrimination is not high, discrimination is often not overt, the employer may have knowledge of facts or possess evidence of discrimination that is not accessible to an employee whose employment is terminated, and that in many, if not most, cases the burden will shift to the respondent to provide a non-discriminatory reason for its actions. On the other hand, where the applicant has failed to establish a prima facie case, it is neither legally correct nor, in my view, fair, just and expeditious to shift the burden to the respondent to provide a non-discriminatory reason for its actions. [emphasis added]

7In Jagait, the Tribunal considered whether to dismiss the Application after hearing testimony from the applicant. In other cases, as with the present case, the Tribunal may consider the question at a preliminary stage, before the applicant has presented evidence. In such circumstances, the threshold test will be the same, but there will be no evidence before the Tribunal. It will be sufficient if the applicant raises allegations that, if accepted to be true, would be enough to establish a violation of the Code. See: Capocci v. York Catholic District School Board, 2009 HRTO 107 at para. 20; Greenhorn v. 621509 Ontario Inc. (Belleville Dodge Chrysler Jeep), 2006 HRTO 22, at paras. 21-22).

8The Application, as originally filed, set out a lengthy history of alleged mistreatment of the applicant by a number of supervisors and Board members of the CSSP. The applicant alleged she was constantly berated and yelled at by her supervisors, and this behaviour did not stop even though she raised concerns with other senior managers. She alleged the CSSP posted a vacancy for her position on its website, without explanation, which caused her considerable stress. She alleged that after she went on medical leave, the CSSP interfered with her ability to obtain employment insurance and long term disability benefits, and denied her other benefits to which she claims she was entitled under the terms of the collective agreement. The applicant also alleged OPSEU failed to assist her in relation to the difficulties she was experiencing in the workplace, as well as in assisting her to obtain sick leave benefits.

9While the Application sets out a large number of allegations of general mistreatment and harassment, it identifies only two incidents which are allegedly related to the applicant’s age. First, it alleges that in January 2007, the applicant’s supervisor told her that training opportunities were only open to young people. Second, the Application makes a vague reference to the applicant feeling pressured by her supervisor that she was “too old” to perform her job.

10In relation to the allegation of reprisal, the applicant’s claim is that she felt caught in the middle of tensions between the union and management because she refused to sign a letter supporting a union steward, and refused to take management’s side against fellow unionized employees.

11In her Reply, the applicant provides a more detailed outline of her claims against the CSSP and OPSEU. However, as with the Application, the bulk of the allegations relate to general concerns about the employment relationship, or personal harassment, not allegations that are tied to age discrimination or reprisal. The allegations in the Reply that relate to age discrimination are as follows:

a. When the applicant was hired, she was required to fill out a form on which she had to identify her birth date. The applicant alleges that this information was made known to other employees;

b. The applicant’s supervisor reported more overtime hours for the applicant that she actually worked, in order to demonstrate to senior management that the applicant was too slow because of her age;

c. The President of the Board asked the applicant whether she was going to dye her hair;

d. The respondent CSSP posted a vacancy for the applicant’s position because they wanted a younger worker.

12At the hearing, the applicant’s representative clarified the allegation with respect to the job posting. She said that at the point the CSSP decided to post the position, the applicant’s supervisor had stated that she wanted a younger person in the job. In relation to this allegation, the respondents take the position the posting was not an advertisement for the applicant’s position, but rather a call for volunteers.

13The respondents also took the position that the applicant’s Reply improperly raised new allegations, rather than addressing new matters raised in the Responses. For the purpose of this Interim Decision, I am prepared to consider all the allegations raised by the applicant in both the Application and Reply. The applicant’s representative pointed out that the original Application was drafted by the applicant, who is not legally trained, and whose first language is not English. The Reply was filed after the representative, who is a paralegal was retained. I am satisfied that it is appropriate to consider all the allegations in the Application and the Reply.

The Application Against OPSEU

14In my view, the Application must be dismissed as against OPSEU. The essence of the applicant’s claim against OPSEU is that it had a legal obligation, as her bargaining agent, to represent her in disputes with the employer. She claims that OPSEU knew about her claims of age discrimination, but did nothing. The applicant argues that the Code requires a union who becomes aware of discrimination to take steps to investigate and represent the employee.

15I cannot accept the applicant’s submissions. First, her allegations do not establish OPSEU took no steps to assist her. To the contrary, correspondence between the applicant and OPSEU show that it was willing to assist. Whether OPSEU met its legal duty of fair representation is a matter for the OLRB to determine. However, there is simply nothing before me that established the union “did nothing.”

16More importantly, I do not accept that, as a matter of law, a union can be found to have violated the Code merely because it has failed to properly or adequately represent one of its members. In Traversy v. Mississauga Professional Firefighters Association, Local 1212, 2009 HRTO 996, at paragraph 17 , the Tribunal stated:

(…) a claim that the union violates the Code must be based on an assertion of differential treatment, and not simply a failure to act. The failure or refusal to take forward a human rights issue such as accommodation of a disability in the workplace is not, in and of itself, a breach of the Code. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.

17In the present case, the applicant has not alleged that OPSEU failed to act as a result of her age, or indeed because of any prohibited ground of discrimination. The applicant has simply asserted that OPSEU has a duty under the Code to investigate and take action. The applicant has provided no legal support for this proposition, and I find that it is not an accurate statement of the law.

18At the hearing, the applicant’s representative made two other allegations in support of the applicant’s position that she had established a foundation for a violation of the Code by OPSEU. First, the applicant alleged that because OPSEU’s Response included correspondence between the applicant and CSSP, this demonstrated that OPSEU was “an agent of the employer.” I find no merit whatsoever in this bald assertion. The applicant has not provided any other allegations which would, if accepted as true, establish that OPSEU was acting on behalf of, or as agent of the employer in the alleged harassment and discrimination.

19Second, the applicant alleged that her supervisor was also a union steward, and as a result, the harassment was affected by, or condoned by OPSEU.

20It is not disputed that the applicant’s supervisor was formerly a union steward, but was, at all material times, holding an acting supervisory position. There is nothing in the Application or Reply to support the allegation, made only at the hearing, that the supervisor was acting on behalf of OPSEU when she allegedly engaged in the harassment of the applicant. Neither is there any basis to support the allegation that OPSEU discriminated against the applicant “with respect to employment.” There are no facts alleged that OPSEU had any influence or involvement in any employment decisions made by the CSSP.

21With respect to the claim of reprisal, I also find the applicant has failed to established a prima facie case. As noted above, the claim of reprisal was a vague assertion that the applicant was mistreated because she failed to sign a letter of support for a union steward, circulated by OPSEU. Section 8 of the Code reads:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

22There is nothing alleged that OPSEU took or failed to take any action with respect to the applicant, or made any threats, because the applicant sought to enforce her rights under the Code.

23For the above reasons, the Application against the OPSEU is dismissed.

The Application Against CSSP

24On the other hand, the Application and Reply do allege facts, which if accepted as true, could establish a violation of the applicant’s rights to be free from discrimination and harassment because of age. For example, the applicant alleges she was denied training opportunities because she was too old. She alleges that she was harassed and subjected to demeaning comments because of her age. She alleges that the CSSP sought to replace her with a younger employee. I am satisfied that, based on the pleadings, the applicant has established a prima facie case of age discrimination.

25I do not find however that the applicant has provided any basis for the claim of reprisal pursuant to section 8 of the Code. There is nothing alleged in the Application or Reply which if accepted as true, could lead to a finding the CSSP reprised against the applicant for seeking to enforce her rights under the Code. The Application, as it relates to reprisal is dismissed.

26I caution that my finding that the matter should proceed as against the CSSP does not in any way suggest a finding that discrimination or harassment has in fact occurred. At a hearing, the applicant will have to present evidence in support of her allegations. The CSSP will present its evidence. After considering all the evidence and submissions, the adjudicator will then make a determination of whether there has been a violation of the Code.

27Before turning to the issue of deferral, I would note that the applicant’s claim raises a number of issues that do not appear to fall within the jurisdiction of the Tribunal. The Tribunal does not have the authority to deal with, decide, or provide remedies in respect of general claims of unfair treatment in employment. Rather, the Tribunal’s jurisdiction is limited to claims which have a nexus with a proscribed ground of discrimination, in this case age.

28In addition, the applicant makes a number of broad assertions such that it is not clear which allegations relate to a claim of age discrimination, and which relate to general employment disputes.

29In order to ensure a fair and expeditious hearing, the applicant will be required to provide a complete statement of facts upon which she relies, including particulars of the times when, the places where and the individuals who are alleged to have engaged in the improper conduct. The revised statement of facts should also be sufficiently particularized to allow the respondent and the Tribunal to understand the nexus between the alleged improper conduct and age.

Deferral

30The respondents request that this Application be deferred pending the outcome of a Duty of Fair Representation complaint filed by the applicant at the OLRB. The parties advised that a mediation of the complaint was held, but did not result in a settlement. No hearing date has yet been set.

31The Tribunal will generally defer an Application under the Code where the same human rights issue is being dealt with in another proceeding. The Tribunal may also defer an Application where there is an overlap of facts in another proceeding. In the latter case, the Tribunal will consider a variety of factors such as the subject matter of the other proceeding, its nature, the type of remedies available, and the status of the other proceeding and steps that have been taken to pursue it. See: Klein v. Toronto Zionist Council, 2008 HRTO 228.

32In the present case, I do not consider it appropriate to defer. Having made the decision to dismiss the Application against OPSEU, the Application is now strictly about whether the CSSP violated the applicant’s rights under the Code. The Duty of Fair Representation will not deal with that issue.

33While the allegations in the complaint before the OLRB are identical to the allegations before the Tribunal, neither the legal issues nor the potential remedies are the same. There is nothing before me to suggest that the OLRB process is nearing completion. The applicant is entitled to have her human rights Application dealt with in an expeditious manner.

Order

34For the reasons set out above, I make the following order

a. The Application as against OPSEU is dismissed in its entirety.

b. The Application as against the CSSP in respect of discrimination and harassment on the ground of age will proceed and is referred to the Registrar to schedule a hearing. The Application as it relates to reprisal is dismissed.

c. Within 30 days of this Interim Decision, the applicant shall deliver to the respondent, and file with the Tribunal, a revised statement of material facts upon which she relies in support of her claim that the CSSP discriminated against her in employment based on age. The statement of facts must be sufficiently detailed and particularize the dates when, places where and individuals who the applicant claims engaged in conduct contrary to the Code. The statement of facts should also set out the nexus between the facts as alleged and age.

d. The Request to defer is dismissed.