Goring v. Ontario Public Service Employees Union, 2009 HRTO 2127

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wendy Goring

Applicant

-and-

Ontario Public Service Employees Union and Rodger Noakes

Respondents

CASE RESOLUTION Conference DECISION

Adjudicator: Jim Dimovski

Date: December 9, 2009

Citation: 2009 HRTO 2127

Indexed as: Goring v. Ontario Public Service Employees Union

AppearanceS BY

Wendy Goring, Applicant ) On her own Behalf

Ontario Public Service Employees Union ) Nick Coleman and and Rodger Noakes, Respondents ) Erin Burbidge, Counsel

1This is an Application filed under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that she was subjected to discrimination on the basis of gender or sex when the Ontario Public Service Employees Union (“OPSEU”) did not acclaim her as President of her Union Local (No. 517) (the “Local”).

2The applicant alleges that she expected to compete in an election as candidate for President of her Local’s Executive Committee, originally scheduled for May 8 and 9, 2006. The other candidate was the incumbent, the personal respondent (“Noakes”). Shortly before the election, a group of members challenged the election’s legality on the basis of improper notice. The applicant alleges Noakes cancelled the scheduled election and resigned as President. In her view, she should have been acclaimed as President at that point but she was not due to a violation of the Code on the basis of her sex. She alleges that a “boys club” prevented her acclamation because of her gender.

3The responding parties claim that after Noakes had been made aware of significant objection to the election within the Local’s membership on the basis of improper notice, he withdrew his candidacy, suspended the election, assisted in re-opening the nominations, and stayed on as President until a new President was elected. The reason he suspended the election and re-opened the nomination process was in no way related to the applicant’s sex.

4A Case Resolution Conference (“CRC” or “hearing”) was held on May 26, 2009, in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications under Section 53(3) and 53(5) of the Human Rights Code (the “Rules”), that section 53(3) applications proceed in a highly expeditious manner. At the hearing, I heard testimony from the applicant and the personal respondent.

5The parties agreed that the respondent’s will-say statements from Noakes, NM and JH would be entered into evidence as evidence-in-chief with the applicant afforded the opportunity to cross-examine on those statements. The applicant only chose to cross-examine Noakes.

PRELIMINARY MATTERS

6At the outset of the hearing, the applicant argued that the Tribunal should prevent respondents’ counsel from participating in the hearing since he had a conflict of interest. She noted that he had previously represented her in the mid-1990s to late 1990s. Although Mr. Coleman acknowledged he has acted for OPSEU in the past, he stated there was no foundation for the applicant’s assertion since he has at no time acted for the applicant individually. I denied the applicant’s request that Mr. Coleman be prevented from participating on the basis of a conflict of interest since I was satisfied he did not possess information attributable to a solicitor and client relationship relevant to the matter at hand.

7The applicant also submitted that she be permitted to amend her Application to include a personal respondent, the OPSEU President (Leah Casselman) during the relevant time. I denied the applicant’s request on the basis that her request made at the hearing was inappropriate. Rule 6.3 reads:

Applications made in accordance with these Rules must be based on the subject matter of the complaint or amended complaint filed at the Commission and the Tribunal will not entertain preliminary requests to add grounds, expand the subject matter of the complaint or add parties to the Application.

8In my view, it would have detracted from the expeditious nature of the proceedings to permit the applicant to add Leah Casselman, especially since she was afforded sufficient time prior to the CRC to have made such a request. Additionally, Ms. Casselman was not present at the CRC. And, in any event, her actions were still considered but within her role as President for OPSEU – a named respondent.

BACKGROUND

9Except as otherwise noted, the following facts are not in dispute.

10On April 1, 2006, the applicant’s Local posted a Call for Nominations for Stewards for the upcoming Steward election. On April 14, 2006, the results were posted and 33 members, including the applicant, who had been nominated, were acclaimed. On that same day, a Call for Nominations for the Local’s Executive Officers was posted. The notice was taped to a secured bulletin board, which the responding parties allege was in accordance with long-standing practice.

11The elections were scheduled to take place on May 8 and 9, 2006.

12Once the nomination period closed, the applicant and Noakes, the incumbent Local President, were the only candidates nominated for the position of Local President.

13On May 1, 2006, after the nomination period had closed, the Local’s Executive Committee received a memorandum from six members, which included Monte Vieselmeyer, who alleged that there had been improper or insufficient notice of the Call for Nominations for Local Executive Officers. The memorandum asserted that a large portion of the Local’s membership (which totals approximately 400 members) were unaware that the election process had begun. As a result, the memorandum requested that the nomination process be re-opened.

14In his testimony, Noakes stated that at the time he was unaware a petition to re-open the Call for Nominations had been circulated. His response to the memorandum was to seek advice from OPSEU’s Head Office. The applicant disagreed and testified that Noakes was well aware of the objections regarding notice several days before his letter to OPSEU was sent.

15On May 4, 2006, Noakes sent an email to MM, executive assistant to Leah Casselman, requesting approval of the nomination process. OPSEU forwarded the matter to FR, considered an expert on OPSEU’s constitution.

16That same day, Mr. Vieselmeyer forwarded a letter to DL, an OPSEU Staff Representative for the applicant’s Local, requesting that the election be postponed and nominations re-opened. Attached to his letter was a petition containing the signatures of 105 members, including the applicant’s signature.

17On May 5, 2006, FR affirmed the nomination process and recommended that the elections proceed on the scheduled dates. Noakes was informed of OPSEU’s position.

18In her testimony, the applicant acknowledged she signed the petition to re-open the nomination process. She, however, explained that she signed the petition prior to the OPSEU opinion which confirmed the legality of the notice provided.

19Despite OPSEU’s affirmation of the process, Noakes claims that he reconsidered his position when he became aware of the petition and the number of signatures on it on or about May 8, 2006. He thought the petition reflected a serious lack of confidence in him and as result he decided to withdraw his candidacy. In a letter dated May 8, 2006, he advised his Local that the election was suspended until further notice and that he would not seek another term as President. He claims he did not resign but expected to continue in his role as President until his term expired in July, 2006. He also advised JH, an OPSEU Staff Representative, of his decision.

20The applicant testified that OPSEU head office had conspired to prevent her from becoming President. She states that her repeated calls to OPSEU during this period were not returned.

21On May 15, 2006, after discussing the matter with JH, among others, a motion was passed by a majority of the Local’s Executive Committee calling on the President to suspend the election and open up the nomination process with oversight from an Election Committee headed by JH.

22Noakes claims that the motion was passed in order to reconcile OPSEU’s affirmation of the election process and his decision to suspend the elections. However, the motion which had been passed was improper since the Local’s Stewards had not voted on it. As a result, under time constraints, the Local attempted to obtain consent for the motion from a majority of the Stewards. After contacting a few Stewards directly and assuming those that signed the petition would support the motion, the Executive Committee believed it had obtained the necessary and formal approval to suspend the election and re-open the nomination process.

23FR, however, in an email dated June 16, 2006, decided the motion was insufficient since the wording of it and the petition differed and as such it could not be assumed that those who signed the petition also approved of the motion. In any event, the respondents posted a new Call for Nomination on June 19, 2006. The new elections were scheduled to occur on July 11 and 12.

24Shortly after another attempt to clarify her right to the Presidency with JH, the applicant testified that on June 20, 2006, she discovered the new Call for Nominations had been posted. Although the OPSEU’s President, at the relevant time was a woman, the applicant insisted she was viewed by her as a competitor as she was someone who would have brought neglected gender issues to the fore.

25Following the new Call for Nominations, the nominees for Local President included Marshall, a male and a candidate who the applicant alleges was closely associated with Noakes; Vieselmeyer, a male the respondents claim represented a faction opposed to Noakes; and the applicant.

26The applicant also testified that the future Local President, Marshall, who was on the local’s executive committee shortly after the election had been suspended confirmed to the applicant that OPSEU did not know what to do with the situation. This affirmed to her that she was being denied her right to an acclamation on the basis of her gender or sex. This evidence is hearsay and of little relevance and accordingly, I am not able to give it any weight.

27The applicant at this time believed that she should have been acclaimed as President and advised JH of this in an email dated June 20, 2006.

28The election scheduled for July 11 and 12, 2006 occurred but was invalidated, by JH due to the discrepancy between votes counted and members who had cast their votes. A fresh election was held on July 18 and 19, 2006, with the same nominees. This time the election results were validated and were as follows: Marshall received 116 votes; Vieselmeyer 92; and the applicant 9.

THE APPLICANT’S SUBMISSIONS

29The applicant submitted that she was denied her claim to the Presidency on the basis of her gender. She noted that there has not been a female Local President for approximately 20 years and this is because the Local was controlled by a “boy’s club”. She testified that a poisoned environment had been created by Noakes when he questioned the validity of a signature on her nomination form during the first nomination process.

THE RESPONDENTS’ SUBMISSIONS

30In his submissions, Mr. Coleman argued that the events surrounding the Executive Committee’s 2006 election was about a clash between Noakes and Mr. Vieselmeyer, and not about the applicant. In his submission, there is no evidence to support the applicant’s allegations of discrimination based on her gender or sex. Instead, Mr. Coleman argued the facts indicate a dispute about remedying an election process contested by two factions.

31He argued contrary to the applicant’s view, the preponderance of evidence did not support that the personal respondent resigned as President as of May 8, 2006. Instead, he withdrew his candidacy in the upcoming election, suspended the election while he attempted to re-open the nomination process and stayed on in his elected role as President until his term expired or until a new President had been elected. Indeed, this was the outcome which was arguably sought by the applicant when she signed the petition.

32The responding parties argue that the applicant was aware that she had no reasonable chance of winning. While the Local was attempting to remedy the electoral process in order to make it more democratic, the applicant tried to take an advantage by claiming the Presidency.

ANALYSIS

33The applicant was unable to provide any direct evidence that she was discriminated against on the basis of her gender or sex. However, it is not disputed that discriminatory actions are often by their very nature, actions which can be incapable of direct proof. Thus it often becomes necessary to infer discrimination from the conduct of the individual or individuals whose conduct is in issue.

34Clearly, the applicant believes she was not acclaimed President due to her gender or sex. I disagree.

35In my view, the balance of evidence supports that the tensions within her Local significantly contributed to a perception that the original election process was flawed. It was that perception, and not the applicant’s gender or sex, which was directly related to the decision to suspend the first election and re-open nominations. My reasons are set-out below.

NOAKES DID NOT RESIGN AS PRESIDENT

36The applicant states that since Noakes resigned on May 8, 2006 and since OPSEU approved of the original nomination process, she became the only nominee for President and as such should have been acclaimed. In her letter dated June 20, 2006, addressed to JH, she wrote that since she had not been acclaimed the reason for such a failure was due to her gender or sex.

37I find that the preponderance of the evidence does not support that Noakes had resigned. In his letter dated May 8, 2006, Noakes clearly expressed that the upcoming election was to be “suspended until further notice” and that he would not seek “a second term” as President. Noakes’ letter did not mention that he had resigned immediately. In fact, the only reference to resignation in the documentary evidence is contained in the applicant’s fax correspondence addressed to JH and dated May 9, 2006.

38Additionally, I find Noakes’ subsequent actions with regard to the motions and interaction with OPSEU’s Head Office, as corroborated by the documentary evidence, supports he continued in his role as President until a new election could resolve the dispute within the Local caused by the allegations of improper notice.

39Accordingly, I am not persuaded that Noakes had resigned effective May 8, 2006.

THE REASONS FOR SUSPENDING THE ELECTION

40In her witness statement provided in preparation for the hearing, the applicant went beyond the allegations contained in her Application and claimed that the personal respondent not only wanted to keep his “boy’s club” in power but also prevented her acclamation on direction from the President of OPSEU.

41There is no evidence to support the allegation that OPSEU and/or its President, made any such direction.

42In my view, the balance of evidence supports that the suspension of the election was directly in response to strong objections about the nomination process. While the original process was affirmed by OPSEU’s constitutional expert and the petition did not have sufficient member support to suspend the election and re-open the process, I am satisfied that the swiftness of Noakes’ unilateral decision more than likely was a result of his emotional reaction to the strength of the opposition as encapsulated in the petition. I find his subsequent interactions with the Local and OPSEU head office was focussed on addressing directly the objections to the original nomination process.

43The applicant testified she could prove Noakes was aware of the petition well before his May 8, 2006 letter. Unfortunately, she did not and in any event, I did not find the timing of his knowledge of the petition particularly relevant in all the circumstances. Instead, I find that, on balance, the evidence supports that the reason Noakes suspended the election was related to concerns he understood were expressed by a significant portion of the membership.

44The applicant clearly perceived that OPSEU’s approval of the original process and its inability to address her inquiries corroborated her allegation that they did not want to acclaim her as President because of her sex.

45While I can understand the applicant’s perception, in the circumstances, I am satisfied there was no inclination to acclaim her President. However, I am not satisfied that it was a result of her gender or sex. Instead, I find it more likely that she was not acclaimed because the election had been suspended. Indeed, her acclamation would have been inconsistent given the questions about the legitimacy of the process under which she was nominated. Indeed, after approving the original nomination process and denying the objections of a segment of the Local, Noakes unilaterally suspended the election and went about trying to accord his decision with botched motions to re-open the nominations. Superimposed on this, was the applicant’s demand for acclamation. Accordingly, I do not find that the avoidance of the applicant’s questions during the relevant time was related to her gender or sex but to the general confusion regarding the best manner in which to address the complaints about the election.

46I do not find sufficient evidence to link OPSEU’s actions or omissions during this time, even remotely, to the applicant’s gender or sex. In my view, the preponderance of evidence supports that the respondents were grappling with how to best facilitate a fair election. In this context, as supported by the preponderance of documentary evidence, the acclamation of the applicant would have been inappropriate not because of her gender but because it would have been inconsistent with the dispute over the original election triggered by the memorandum dated May 1, 2006.

47An issue that must also be addressed is that the applicant herself was a signatory to the petition. The applicant states while she signed it she changed her view on the basis of OPSEU’s affirmation of the process. With respect, I place little weight on this portion of the applicant’s testimony since it did not accord with the purpose of the petition, which she signed, to open up the nominations. She admitted that in such a race she would not likely have succeeded. The responding parties submitted that her position changed when she believed she had obtained a tactical advantage to become the President without need of an election. In my view, the applicant’s reasons for the change are not relevant for my consideration. Instead, I have focused on the respondents’ action to determine whether a violation of the Code has occurred.

48In the context, I do not find the applicant’s other allegations such as the fact her Local had not had a female President in approximately 20 years and that the personal respondent targeted her by questioning the authenticity of the signatures on her nomination form, are sufficient to warrant an inference of discrimination. In the absence of further evidence, I do not find that the outcome of Local elections, determined by membership voting for the past 20 years, allows me to infer the responding parties’ actions within the context of this Application were discriminatory. Also, while the personal respondent may have questioned the signature on the applicant’s nomination form, nothing came of it once the signature was authenticated.

49The applicant attempted to rely on statements provided by KM, SC, EB. In my view, these statements reflected the applicant’s perceptions of the events addressed above. As such, I am not satisfied that they corroborate any breach of the Code and as such I placed no weight upon them.

50I am not satisfied that there is any persuasive evidence to support that the personal respondent resigned as President on May 8, 2006. While he withdrew from the upcoming election, he also suspended the election and opened up the process so those who had objected could be allowed an opportunity to participate. I am satisfied that the election was suspended to ensure inclusiveness by opening up the process to all the Local’s members and not in order to block the applicant’s acclamation on the basis of her gender or sex.

51In their submissions, the responding parties noted that while it was clear that the applicant was alleging discrimination on the basis of sex it was not clear whether it was in relation to section 5 (employment) or section 6 (vocational membership) of the Code. Mr. Coleman submitted s. 6 was the most appropriate in the context of this case. The Application originally filed with the Commission indicated that the applicant was discriminated against based on employment. In my view, the issue is moot since I do not find on balance, that the applicant was discriminated against on the basis of gender or sex.

52For all these reasons the Application is dismissed.