Coates v. Communications Energy & Paperworkers Union, Local 324, 2009 HRTO 491

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Janet Coates

Applicant

-and-

Communications, Energy & Paperworkers Union, Local 324, George Smith and Shelley Kiewning

Respondents

INTERIM DECISION

Adjudicator: Mark Hart

Date: April 23, 2009

Citation: 2009 HRTO 491

Indexed as: Coates v. Communications Energy & Paperworkers Union, Local 324

APPEARANCES BY

Janet Coates, Applicant ) on her own behalf

Communications, Energy & Paperworkers ) Denis Ellickson, Union, Local 324 and George Smith ) Counsel Respondents )

Shelley Kiewning, Respondent ) Theodore Scollie, ) Counsel

1This is an Application dated August 25, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaint was filed with the Ontario Human Rights Commission on May 17, 2007.

2By Case Assessment Direction dated April 16, 2009, the Tribunal directed that the respondents’ preliminary request to dismiss this Application be heard orally at the commencement of the Case Resolution Conference scheduled for April 20 and 21, 2009 in Thunder Bay.

3At the hearing on April 20, 2009, I issued the following oral decision:

a. The respondents have made a request to dismiss the Application for failure to set out a prima facie case.

b. The respondents first addressed the allegation of discrimination because of disability. The allegation raised by the applicant is that because of the way that she was treated by the personal respondent Kiewning during the period from late October 2006 to January 2007 and the Union’s consequent failure to appropriately respond to these allegations, the applicant suffered headaches and emotional distress that caused her to be off work. The applicant clarified that, apart from the denial of sick pay, she is not alleging that she was adversely treated because of a disability, but rather that the disability was caused by the adverse treatment she received. I concur with the respondents that this is not a basis upon which an applicant can allege discrimination because of disability. At the same time, if the applicant is able to establish adverse treatment on the basis of the ground of marital status in violation of the Code and that her headaches and emotional distress were caused by any conduct found to be in violation of the Code, then such evidence would appropriately be relevant to the issue of remedy.

c. With regard to the issue of sick pay, I also concur with the respondents that at least in the circumstances of this case, there was no requirement for the Union as employer to pay sick pay to the applicant solely on the basis that she was absent from work due to illness. As a result, I do not find that there is any basis upon which the applicant can allege that the denial of sick pay constitutes a failure to provide appropriate accommodation for her disability. That said, I understand that the applicant is alleging that the Union and the personal respondent Smith sided with Kiewning in relation to the discrimination and harassment that the applicant alleges she experienced, and she further alleges that the denial of sick pay to her while sick pay was extended to Kiewning was an example of the Union siding with Kiewning. In this way, I am not prepared at this initial stage of the proceeding to foreclose the possibility that the applicant can make out that the denial of sick pay was a continuation of the discrimination and harassment she experienced and the Union’s failure to take appropriate steps to address it.

d. With regard to the ground of marital status, I find that, again at this early stage of the proceeding and without making any final determination, the applicant has brought forward a sufficient basis to bring herself within the threshold of the “marital status” definition in the Code. As established in the caselaw, the ground of marital status is not limited to the mere status of a being in certain categories of relationship, but extends to a person experiencing adverse treatment because of her relationship with a specific person. In this case, the applicant is alleging that she experienced discrimination and harassment by Kiewning because of her relationship with the Union’s National Representative, Mr. Mihalik.

e. I agree with the respondents that a mere “dating” relationship is not sufficient to bring the applicant within the threshold of protection for the ground of marital status, and that at the very least the applicant would need to establish that she was in a conjugal relationship with this person outside of marriage. The applicant has indicated that she commenced co-habiting with Mihalik in early November 2006 and that Mihalik had assumed some degree of responsibility for the care of her four children from that time. Without making any final determination as to whether the applicant has established that she was in a conjugal relationship with Mihalik at the relevant time, which I will only do after hearing all of the evidence, I find that at this point there is sufficient evidence for the application to proceed on the ground of discrimination and harassment in employment because of marital status, and also in relation to the alleged failure of the Union and Smith to take appropriate steps to respond to these issues.

f. In correspondence from the applicant’s former counsel, additional allegations were raised that the applicant experienced discrimination because of family status and sex. These grounds of discrimination were not identified in the complaint as originally filed by the applicant. With regard to the ground of family status, the applicant’s counsel alleged that Kiewning made a decision to keep the office open over the Christmas holidays and this was family status discrimination because of the impact of this decision on the applicant’s ability to spend time with her four children. I find that this is not a sufficient basis upon which an allegation of family status discrimination can be maintained. At the same time, my understanding of the applicant’s allegation is that Kiewning made the decision to keep the office open as part of the marital status discrimination and harassment, and I am prepared to consider this issue on that basis.

g. With regard to the allegation of sex discrimination, applicant’s counsel referred to a comment alleged to have been made by Smith about not wanting to deal with two women having hormonal issues. This comment is not alleged in the complaint. Because the ground of sex was not identified in the complaint and no request was made to amend the complaint to include it, I am not prepared to consider sex discrimination as an independent ground upon which a finding of a Code violation is sought. At the same time, I am prepared to hear evidence about the comment alleged to have been made by Smith together with any evidence regarding the Union and Smith’s response to the applicant’s allegations of discrimination and harassment in the context of the applicant’s broader allegation that the Union and Smith failed to take appropriate steps to address her allegations of discrimination and harassment because of marital status.

h. As a result, the respondents’ request to dismiss is granted as it pertains to the allegations of discrimination because of disability, family status and sex.

i. The respondent’s request is denied as it relates to the allegation of discrimination and harassment because of marital status and the Union and Smith’s failure to take appropriate steps to respond to these allegations.

4The Case Resolution Conference proceeded on the merits of the Application on April 20 and 21, 2009 and further dates will be set to complete the hearing.