Baylet v. Universal Workers Union, 2009 HRTO 700

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Albert Baylet

Applicant

-and-

Universal Workers Union, Labourers’ International Union of North America, Local 183 and Maria Da Silva

Respondents

AND B E T W E E N:

Albert Baylet

Applicant

-and-

Dan Benedict Co-op Homes, Ellen Bowie and Leslie Staddon

Respondents

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: May 27, 2009

Citation: 2009 HRTO 700

Indexed as: Baylet v. Universal Workers Union

APPEARANCES BY

Albert Baylet, Applicant ) Self-represented

Dan Benedict Co-op Homes, Ellen Bowie ) and Leslie Staddon, Respondents ) Brent J. Foreman, ) Counsel )

Universal Workers Union, Labourers’ International ) Union of North America, Local 183 and ) Virginia Nelder, Maria Da Silva, Respondents ) Counsel

1These two Applications were filed on November 28, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The Applications are briefly summarized as follows:

T-0550-08: The applicant alleges that his employer discriminated against him when the individual respondent harassed him and when his employment was terminated because of his disability.

T-0549-08: The applicant alleges that he was discriminated against by his trade union and an official of the trade union when they failed to represent him in the above human rights dispute with the respondent employer.

3Both respondents advised the Tribunal that they wanted the Applications dismissed on a preliminary basis.

4By Interim Decision 2009 HRTO 23, the Tribunal ordered these two Applications to proceed together because they raised similar facts and legal issues. The Tribunal also provided case management directions for hearing the respondents’ motion to dismiss the Applications.

5A Case Resolution Conference (“CRC”) was scheduled in Toronto on April 24, 2009 to hear the respondents’ motions to dismiss the Applications. This is the Tribunal’s decision on that motion.

Preliminary Issue

6At the commencement of the motion, the applicant asked if he could tape record the proceedings for his own purposes. Counsel for the employer objected on the basis that the Tribunal’s practice is not to officially transcribe its hearings. Counsel for the union was not opposed to the applicant’s request provided the recording would not be considered an official transcription of the proceeding.

7The Tribunal allowed the applicant, who was self-represented, to record the proceedings to assist him with the hearing process. The applicant was advised that the recording was not an official transcription and would not form part of the Tribunal’s record of proceedings.

Background Facts to the Motion

8The applicant was employed as a building superintendent by Dan Benedict Co-op Homes (the “Employer” or “Dan Benedict”). The Universal Workers Union, Labourers’ International Union of North America, Local 183 (the “Union”) is a trade union certified under the Ontario Labour Relations Act and was, at all material times, the bargaining agent for the employees of Dan Benedict, except for those employees holding the position of supervisor and above.

9For a number of reasons, most of which related to the small number of employees at Dan Benedict, no collective agreement was ever ratified. As a result, the Union was unable to file grievances on behalf of its members, but was able to file unfair labour practice complaints with the Ontario Labour Relations Board (“OLRB”).

10The Union filed two unfair labour practice complaints on behalf of the applicant. One complaint involved outstanding vacation pay, OLRB File No. 2882-03-U, filed on December 11, 2003 and the other complaint related to an allegation of insubordination, OLRB File. No. 3731-03-U, filed on February 19, 2004.

11On March 4, 2004, after the above complaints were filed with the OLRB, the applicant suffered a work-related injury which prevented him from working. He asserts that he was harassed during his sick leave and that his employment was ultimately terminated on April 14, 2005 because of his disability.

12On April 11, 2007, the unfair labour practice complaints were scheduled to be heard by the OLRB. On April 10, 2007, the Employer and the Union entered into Minutes of Settlement. The Employer and the Union assert that the settlement covered all employment matters, including the applicant’s human rights issues relating to the harassment and termination of his employment because of his disability. The applicant submits that only the insubordination and vacation pay complaints were resolved.

13The full text of the April 10, 2007 Minutes of Settlement is reproduced below:

WHEREAS the Applicant and the Responding Party are parties to a collective agreement;

AND WHEREAS the Applicant filed an Application under section 96 of the Labour Relations Act, 1995 (the “Act”) on or about December 11, 2003 and which is the subject of Board File No. 2882-03-U;

AND WHEREAS the Applicant filed an Application under section 96 of the Act on or about February 19, 2004 and which is the subject of Board File No. 3731-03-U;

AND WHEREAS the two Applications referred to herein concerned, generally, the employment of Mr. Albert Baylet and Mrs. Maria Baylet (also referred to herein, collectively, as the “Baylets”);

AND WHEREAS the Applicant and the Responding Party and the Baylets (collectively, the “Parties”) wish to resolve the matters giving rise to the Applications referred to above;

NOW THEREFORE the Parties agree as follows:

1. The Responding Party shall forthwith pay the sum of $4200.00 to the Baylets. No statutory deductions shall be made. The Parties agree that any tax consequences resulting form this settlement payment shall be borne by the Baylets. The Parties agree that such payment encompasses all claims including but not limited to monetary claims made on behalf of Mr. and Mrs. Baylet in respect of Board File 2882-03-U and 3731-03-U and that all matters raised in the aforementioned Board Files are fully and finally resolved. Said payments shall be made in full as soon as possible and in any event shall be available for pickup by the Baylets at the Employer’s office on and by April 18, 2007.

2. The Union hereby withdraws the Applications bearing Board File Numbers 2882-03-U and 3731-03-U.

3. These Minutes of Settlement are without precedent and without prejudice to the position of either of the Parties.

Application against the Union

14The applicant asserts that the Union discriminated against him when it failed to assist him in enforcing his right to be free from discrimination from the Employer. He believes that the Union condoned the Employer’s discrimination when it failed to act on his behalf by contesting the disability-based harassment and discrimination that he experienced.

15The Union moves to dismiss the Application against it on three bases:

1. The applicant has not made out a prima facie case of discrimination against the Union;

2. The Application against the Union is essentially a duty of fair representation application which is outside of the Tribunal’s jurisdiction as the OLRB has the exclusive jurisdiction to deal with these complaints;

3. It would be an abuse of the Tribunal’s process to proceed with the Application because of the OLRB settlement.

16The applicant has not adduced any facts in support of his Application against the Union other than the fact that the Union did not act on the human rights issues.

17The failure to represent an employee on a human rights claim is not, in and of itself, a breach of the Code, nor does it automatically make the Union a party to the alleged discrimination by the Employer. To found a claim against the Union, the applicant must provide a factual basis that could give rise to a finding that it discriminated against him. For example, the applicant could allege that the Union interfered with the accommodation process or made its decision not to represent the applicant because of discriminatory factors. Both of these assertions would require a factual underpinning.

18One can not presume that a union’s failure to act was based on discriminatory beliefs. There may be many reasons why a union might choose not to pursue a human rights claim on behalf of an employee that have no discriminatory overtones. As such, it is essential that a factual basis for the alleged discriminatory conduct be established. A claim of discrimination must go beyond the mere fact that a particular union did not act.

19In this case, there are no allegations against the Union apart from the fact that it did not complain about the Employer’s conduct. The applicant concedes that this is the sole reason for his Application against this Union. This is not a sufficient basis upon which to file an Application under the Code. Accordingly, I find that the applicant has failed to establish a prima facie case against the Union and as such, the Application against the Union is dismissed.

Application against the Employer

20The Employer submits that the Application against it should be dismissed because it would be an abuse of the Tribunal’s process to proceed in light of the settlement that was reached before the OLRB. The Employer relies on section 45.1 of the Code which reads as follows.

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

21The Tribunal has held that settlement of a matter commenced before a different tribunal may be a “proceeding” that has “dealt with the substance” of the application within the meaning of section 45.1.

22In order to determine whether the OLRB settlement appropriately dealt with the issues before the Tribunal, I must examine the facts and issues in the OLRB proceeding and the language used by the parties in their agreement to express the nature of the issues that were resolved. See Dunn v. Sault Ste. Marie (City), 2008 HRTO 149.

23It is clear when examining the OLRB Minutes of Settlement that the issues that were resolved relate solely to the two unfair labour practice complaints for vacation pay and insubordination. The settlement did not address the applicant’s human rights complaint regarding disability-based harassment and the termination of his employment. I make this finding for the following reasons:

• The complaints before the Labour Board pre-date the applicant’s workplace injury and his subsequent complaints of disability-based harassment and termination;
• The Minutes of Settlement refer only to the Labour Board complaints: no other complaints are mentioned;
• The Minutes of Settlement state explicitly that the compensation received “encompasses all claims including but not limited to monetary claims made on behalf of Mr. and Mrs. Baylet in respect of Board File 2882-03-U and 3731-03-U and that all matters raised in the aforementioned Board Files are fully and finally resolved”. There is no reference to a human rights complaint;
• The OLRB settlement is on behalf of the applicant and his spouse. The Application before the Tribunal concerns only the applicant;
• The Minutes of Settlement are on a without prejudice basis;
• The Minutes of Settlement were entered into two years after the applicant filed his human rights complaint with the Ontario Human Rights Commission. Had the parties intended to include his human rights complaint in the settlement, they would have done so explicitly.

24There is no evidence to support the Employer’s claim that the applicant’s human rights complaint was appropriately dealt with in the OLRB settlement. Indeed, there is no evidence that the human rights complaint was considered at all in the OLRB settlement. The Minutes of Settlement clearly state the only issues that were resolved related to the applicant’s insubordination and vacation pay entitlement.

25If the human rights complaint was not addressed in the Minutes of Settlement, it can not be said that the settlement appropriately dealt with the substance of the Application before the Tribunal. Accordingly, section 45.1 of the Code can not be relied upon to dismiss the Application against the Employer. As such, the Employer’s motion is denied.

Next Steps

26In light of the Tribunal’s rulings, there is no longer a need to join the two Applications. The Application in T-549-08 is dismissed and the Application in T-550-08, will proceed to a hearing on the merits.

27The Registrar-Transition will canvass the parties and schedule the CRC hearing date(s) for the Application, T-550-08, against the Employer.

28I am not seized in this matter.