Traversy v. Mississauga Professional Firefighters’ Association, 2009 HRTO 996

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Norman Traversy Applicant

-and-

Mississauga Professional Firefighters’ Association, Local 1212, Greg Laing, Dave McNeil, Mark Train, Chris Varcoe and Mike Scarangella Respondents

DECISION

Adjudicator: Sherry Liang Date: July 8, 2009 Citation: 2009 HRTO 996 Indexed as: Traversy v. Mississauga Professional Firefighters’ Association

APPEARANCES:

Noman Traversy, Applicant ) Cecil Norman, U-Sheak Koroma ) Representatives

Mississauga Professional Firefighters’ ) Association, Local 1212, Greg Laing, ) Howard Goldblatt, Counsel Dave McNeil, Mark Train, Chris Varcoe ) and Mike Scarangella, Respondents )

1This is an Application filed on September 16, 2008, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). A hearing was held in this matter on May 29, 2009. This is the Tribunal’s decision on the Application.

BACKGROUND

2The applicant is a firefighter employed with the City of Mississauga (the City). He alleges that the respondents discriminated against him as a member of the Mississauga Professional Firefighters’ Association (the Association), on the basis of a disability. The allegations of discrimination are centred on the Association’s actions as the representative of the applicant in his employment relations with the City of Mississauga.

3To expedite the hearing, I permitted the applicant to adopt the narrative in his Application and witness statement as his evidence. I also allowed him the opportunity to supplement these through his oral evidence. The parties filed documents which were entered as exhibits without the need for formal proof.

4After hearing the evidence offered by the applicant, the respondents asked the Tribunal to dismiss the Application on the basis that the applicant has failed to establish a prima facie case of discrimination under the Code.

5For the following reasons, this Application is dismissed.

THE EVIDENCE

6The narrative in the Application makes a number of broad assertions, covering a number of years, to the effect that the Association refused to advocate on his behalf, ignored him, refused to file or advance grievances on his behalf and generally failed to support him, after he sustained a work-related lower back and left leg injury. Although I accepted the narrative as his evidence in chief, his oral evidence in response to questions from counsel for the respondents clarified and narrowed many of the assertions in his Application.

7Since the filing of the Application, the applicant’s employment has been terminated by the City. The Association is currently representing him in a grievance disputing the discharge, which is going to arbitration. The applicant clarified at the hearing that he is not alleging any discrimination by the Association since his termination from employment.

8The applicant testified that the first incident constituting discrimination by the Association arose from a grievance that he filed in 2005, regarding a failure to be promoted. At the time, the applicant was working in an accommodated position in the Fire Prevention Division with the City, which is separate from the Fire Suppression Division where the applicant had spent most of his career. He applied for the position of Acting Captain within the Fire Prevention Division. The applicant testified that he failed to get the position because the City refused to recognize his long seniority with the City, and made its decision on the basis of seniority within the Fire Prevention Division only. Although the applicant believed this was discriminatory, he acknowledged that he wasn’t treated differently with respect to this posting from any other firefighter in his work unit.

9The Association filed a group grievance which was advanced to a meeting with the City at which the issues were discussed. The City provided its response to the grievance, including advising the Association and the applicant that training opportunities would be made available to firefighters like the applicant, to enable them to compete for positions in the Fire Prevention Division on a level playing field. It was apparent that regardless of whether City-wide or divisional seniority applied to the posting, the City also based its assessment of candidates on their level of knowledge of Fire Prevention. In the applicant’s materials is a letter from the Association to several members, including the applicant, explaining the decision not to pursue the group grievance. The letter provides the Association’s rationale for its decision, including referring to the advice of legal counsel that there was no basis to proceed.

10The applicant also asserts that the Association discriminated against him in relation to an injury he sustained, while driving to work, in May 2006. The applicant took offence to the City’s position that the injury was not work-related. He believes that the Association did not act forcefully enough in refuting this position. However, he acknowledges that the Association has been assisting him with an appeal over denial of benefits from the Workplace Safety and Insurance Board (WSIB), and that the final outcome of this appeal is still pending.

11The applicant asserts that the Association discriminated against him by ignoring his requests for assistance during a period of time in early 2007. During this time, the applicant and the City were engaged in a disagreement over his return to work. In his oral evidence, the applicant agreed that at the time, he discussed his situation with Greg Laing, the Association President, and received advice from him. In the documents are email exchanges between Mr. Laing and the applicant, in which Mr. Laing addresses a number of issues raised by the applicant in relation to his dispute with the City, and provides his opinions and advice.

12The applicant alleges in his Application that the Association refused to file grievances on his behalf. However, he acknowledges, and this is supported by the documents, that Greg Laing advised him that under the collective agreement, it was up to the applicant to initiate a grievance. The applicant was advised that he could decide whether to do so, and if he did file a grievance, the Association would become involved after that.

13In the documents are email exchanges between the applicant and Greg Laing from February 2007 and July 2007, in which the applicant raises a number of issues, and Mr. Laing responds in some detail with information and advice, including the advice about filing a grievance.

14On August 3, 2007, the applicant did file a grievance. This grievance, which was addressed to the Chief of the fire services, was not copied to the Association. The Association was not made aware of it by the applicant, and in fact the applicant stated that he met with the Chief shortly afterwards and decided not to pursue the grievance.

15In relation to other instances in which the applicant asserts that the Association ignored his complaints about actions taken by the City or its supervisors, there is no evidence that the applicant asked the Association to take any specific action that was ignored. For instance, the applicant states that the Association took no action when he complained about a specific incident in relation to a shower curtain in August 2007; however, the applicant did not identify what he asked the Association to do, and what the response by the Association was.

16One of the main concerns of the applicant related to his supervisor, whom he believed was harassing him in the workplace. The applicant believes that the Association did not do enough to assist him in his complaints about this supervisor. The evidence is that the Association gave the applicant advice about his option of either filing a grievance over this matter, or an internal workplace harassment complaint. Greg Laing explained to the applicant that if he chose to file a harassment complaint, the Association would have no formal role. He was also told that if he was not satisfied with the outcome of that complaint, he could still file a grievance. Again, he was told that under the collective agreement, he would have to initiate the grievance himself. The applicant decided to file a harassment complaint.

17The Application refers to an allegation that in a meeting with Greg Laing and representatives from the City in January of 2008, Greg Laing “agreed that I could not be offered a modified job without violating the collective agreement thus placing a barrier to my accommodation and employment”. The applicant did not elaborate on this statement in his oral evidence and it does not make any sense in the context of his evidence as a whole. The applicant had been in a modified position with the City for some years. Further, at the January 2008 meeting, the applicant was offered, because of new restrictions, a different accommodated position, which he did not view as appropriate. None of the other evidence supports the suggestion that the Association objected to the job being offered to the applicant. It is clear that it was the applicant who did not view the job as reasonable accommodation.

18The dispute between the applicant and the City about whether the position being offered was appropriate accommodated work continued over the next year and led to the eventual termination of his employment in February of 2009. All of those events will be the subject of the arbitration at which the Association will be representing the applicant.

19The applicant also states that in or around January 2007, in a meeting between him and Greg Laing, Mr. Laing stated that “they thought I would get better but I didn’t” and “everyone knows you’re sick.” He states that Mr. Laing made a trembling motion with his hands, which the applicant found humiliating. He also testified that in or around December 2007, Greg Laing stated that he would like to give the applicant’s supervisor a 50% raise “just for having to put up with me.”

20The applicant also called an additional witness, Stephen Quesnel. On the day of the hearing, the applicant’s representative provided witness statements for Mr. Quesnel and a further proposed witness, Michele Allen. After hearing submissions from the parties, the Tribunal ruled that it would not hear the evidence of Ms. Allen.

21The Tribunal was satisfied that the evidence of Ms. Allen should have been disclosed to the parties before the hearing. The Tribunal’s Rules of Procedure require that parties deliver documents, witness lists and statements of the intended evidence of their witnesses at least 45 days prior to the first scheduled day of hearing. In this matter, the Tribunal issued a Case Assessment Direction on April 27, 2009, reminding the parties of these requirements, and directing them to file such material immediately. The Tribunal stated:

If either party plans to introduce documents or witnesses into evidence at the hearing, they must comply with Rules 16 and 17 immediately, and forward these materials to each other and the Tribunal. Failure to comply with Rules 16 and 17 may result in the Tribunal refusing permission to a party to introduce documents or evidence of witnesses it did not disclose.

22The applicant filed documents on May 11, 2009. Although two witnesses were listed in addition to Mr. Traversy, Ms. Allen was not identified as one of them. Further, no witness statements were provided for any witness other than the applicant. At the hearing, the applicant’s representative explained why Ms. Allen was not listed as a witness, nor a witness statement provided for her.

23Although the Tribunal has the discretion to relieve against compliance with its Rules, the Tribunal must exercise this discretion with a view to the fair, just and expeditious resolution of an Application. In the circumstances, I was satisfied that it was not fair to permit the evidence of Ms. Allen. In providing my ruling, I also indicated that I did not view the intended evidence of Ms. Allen to be helpful to the issues before me. Most of her evidence was directed at the applicant’s interactions with his employer, and not with the respondents. To the extent that some of it related to the Association’s dealings with the applicant, it was based on what the witness had been told by the applicant.

24I ruled that, despite the failure to provide the witness statement of Stephen Quesnel before the hearing, I would permit him to testify about an incident on April 9, 2008. These events were referred to in the Application and I saw no prejudice in permitting this evidence. The other aspects of Mr. Quesnel’s evidence were either improper opinion evidence, not directly relevant, or so sweeping and general that its potential relevance was outweighed by the disadvantage to the hearing process of permitting it to be introduced at the eleventh hour. In the final result, the evidence of Mr. Quesnel did not support the allegations of discrimination.

SUBMISSIONS OF THE PARTIES

25As indicated above, after hearing the evidence offered by the applicant, the respondents asked the Tribunal to dismiss the Application on the basis that the applicant has failed to establish a prima facie case of discrimination under the Code.

26The respondents submit that even on the applicant’s own evidence, he has not established any case of discrimination by the Association or any of the personal respondents. Counsel emphasizes that the case is about whether the applicant has been discriminated against in his relationship with the Association, on the basis of disability. The allegation is that the applicant has been adversely affected through the actions or inactions of the Association, on the basis of his disability. Ultimately, there simply is no factual foundation for this allegation. There is no suggestion, it is submitted, that the applicant was treated any differently from any other member of the Association, because of his disability.

27Counsel submits that even on the applicant’s own evidence, the Association’s conduct is beyond reproach. The Association provided assistance with respect to the applicant’s seniority grievance. The Association provided, and continues to provide, assistance with respect to his WSIB claim. It provided advice to him about his harassment complaint, and will be representing him in his discharge grievance.

28The applicant’s representative submitted that had the Association done more to assist him, he could have been properly accommodated. The assertion is that the Association’s failure to act constitutes discrimination against him on the basis of a disability. The applicant alleges that the Association’s failure to act condoned and abetted the City’s discriminatory conduct against him.

29In the submissions of his representative, the applicant became disabled, he needed assistance, and the Association did not provide it. Had it provided assistance properly, the applicant would have been accommodated. The applicant’s representative relied on Bell v. Ontario Human Rights Commission, 1971 CanLII 195 (SCC), [1971] S.C.R. 756, 1971 CanLII 1 (S.C.C.).

DECISION

30Section 6 of the Code states:

Every person has a right to equal treatment with respect to membership in any trade union, trade or occupational association or self-governing profession without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

31In the Application, the applicant alleged discrimination in the area of membership in a union, on the ground of his disability. In describing his claim, the applicant writes that the Association has “acted in bad faith and in a discriminatory manner by failing to represent me before my employer because of my disability.” Although the Application is based on the right to equal treatment “with respect to membership in any trade union…”, it is not based on any assertion that the union withheld membership, applied membership rules, or in some other way treated the applicant differently with respect to his status as a member, because of his disability. The case is about the Association’s obligations as a representative of the applicant in his employment relations with the employer. In essence, his claim is that the failure by the Association to advocate or to advocate more strenuously for him in the workplace, amounts to discrimination under section 6.

32Not surprisingly, this raises the issue of the relationship between a union’s obligations towards a member under the Code, and its obligations under the law of the “duty of fair representation”, whether under section 74 of the Labour Relations Act, 1995, S.O. 1995, c.1, Sched. A, or another law. This is not the case to fully explore that issue, but I refer to it because the allegations of the applicant focus on an aspect of the relationship between himself and his union which is already governed by legal principles outside of the Code, arising out of a union’s role as the exclusive bargaining agent and its corresponding duty to fairly represent employees in the bargaining unit.

33Assuming that the Code also applies to this aspect of a union’s relationship with the employees it represents, 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 may be many reasons that have no discriminatory overtones why a union might choose not to pursue a human rights claim on behalf of an employee: see Baylet v. Universal Workers Union, 2009 HRTO 700. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.

34As indicated above, the respondents asked the Tribunal to dismiss the Application after hearing the applicant’s evidence, for failing to establish a prima facie case of discrimination under the Code.

35The onus is on the applicant to establish a prima facie case of discrimination. In the context of alleged discrimination by an employer, the Supreme Court of Canada has described the threshold as “one which covers allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent employer”: Ontario Human Rights Comm. v. Simpsons-Sears, [1985] 2 S.C.R. 536, 1985 CanLII 18 (S.C.C.), at para. 28.

36In Potocnik v. Thunder Bay (City) (No. 3) (1996), 1996 CanLII 20066 (ON HRT), 29 C.H.R.R. D/333, at para. 16 the Board of Inquiry put the issue thus: “In simple terms, there must be something that would make a reasonable person say that the employer has some explaining to do.”

37In assessing whether an applicant has established a case that the respondent should be required to meet, the Tribunal has recognized that discrimination is often not overt, and, particularly in an employment situation, the employer may have knowledge of facts or possess evidence of discrimination that is not reasonably available to an applicant: see Jagait v. IN TECH Risk Management, 2009 HRTO 779. On the other hand, when, even taking this into account, an applicant has not provided evidence sufficient to establish a prima facie case, it would not be fair, just and expeditious to shift the burden to the respondent to call evidence of non-discriminatory reasons for its actions.

38In the case before me, the evidence of the applicant does not establish a prima facie case of discrimination under the Code. I am also satisfied that this is not a case where it is unfair to arrive at this assessment in the absence of any evidence from the respondents. The evidence does not support any claim that the Association treated the applicant unequally because of his disability. There is considerable evidence about the actions taken to respond to the applicant’s employment concerns, including giving advice, taking action on the grievance over the Acting Captain posting, representing the applicant in an appeal of a WSIB claim, and representing the applicant in his ongoing termination grievance. The applicant’s claim is essentially that by failing to do more, the Association discriminated against him. But there is no factual basis for the claim that the failure to do more was based on discriminatory considerations.

39The applicant makes many broad assertions in his materials. He states that “until my injuries I was treated as an equal member of my Association, however, since my injuries the Association has acted in bad faith, supporting the City in its attempt to warehouse me in an inappropriate, unhealthy, ‘red circled job.’” He alleges elsewhere that the Association refused to file grievances on his behalf, ignored his complaints, supported the City’s position at times and refused to support him in attempts to return to work. I have considered these allegations in light of the applicant’s evidence. Ultimately, that evidence does not support the contention that the Association acted in a discriminatory manner in its representation of the applicant. I will deal with some of the specific allegations in turn.

40It should be noted that there were aspects of the applicant’s evidence that were disputed by the respondents, particularly with respect to particular statements attributed to Greg Laing. It is not necessary for me to seek to resolve these differences as they would not affect my ultimate conclusions in any event.

41In the Application, the applicant alleges that the Association’s failure to take the grievance about the Acting Captain posting to arbitration was because “it was reluctant to advance any grievance that has human rights implications.” The documents before me include a letter from the Association explaining its decision not to advance this grievance, which was a group grievance, to arbitration. The letter does not support the allegation that the Association did not wish to pursue the grievance because it had “human rights implications”, or that the Association’s decision was based on improper, discriminatory, considerations. Further, the applicant’s evidence does not establish that there were improper discriminatory considerations behind the Association’s decision.

42The applicant also alleges that in early 2007, the City failed to accommodate him, and the Association ignored him and “refused to advocate on my behalf because my case may require broad public interest remedies.” As I have stated, a failure by a union to act does not by itself amount to discrimination under the Code, absent any factual basis establishing differential treatment. But in any event, it is evident that the Association, mainly through its President Greg Laing, did spend a considerable amount of time during 2007, and at other times, responding to the applicant’s concerns. The applicant may not have agreed or wished to follow the advice, but that does not amount to discrimination.

43The applicant alleges that the Association refused to file any new grievances in or around June of 2008. Again, the refusal or failure to file a grievance is not by itself discriminatory, but in any event, the evidence is clear that any time the applicant raised the issue of filing grievances, the Association directed him on how to do so if he wished to initiate a grievance.

44In his evidence, the applicant asserted that the Association should have acted more forcefully to counter the employer’s position on his 2006 WSIB claim. Again, the failure to advocate more strenuously cannot in itself constitute discrimination by the Association. And it is difficult to infer discrimination when the Association continues to represent the applicant in his ongoing appeal of his claim.

45The applicant’s materials refer to a statement allegedly made by Greg Laing in January 2008, to the effect that he agreed with the City that the applicant could not be offered a modified job without violating the collective agreement. He did not elaborate on this in his oral evidence, and without more, I cannot draw any conclusions from it. As I have indicated, the alleged statement is at odds with the other evidence about the applicant’s ongoing accommodation. It is also at odds with the evidence that during this meeting, the applicant was offered an accommodated job, and that he was the one who decided it was not suitable. Even if I accept that such a statement was made, I cannot conclude on this basis alone that the Association acted to prevent the accommodation of the applicant in the workplace.

46It is unnecessary to deal with every aspect of the applicant’s evidence and allegations in detail. The specific statements attributed to Greg Laing, even if true, do not establish discrimination on the basis of a disability by the Association.

47In conclusion, I am satisfied that the evidence offered by the applicant is not complete and sufficient to justify a finding in his favour in the absence of an answer from the Association. It does not establish that the Association treated the applicant unequally as his representative in the workplace because of his disability. It does not establish that the Association was responsible for preventing the appropriate accommodation of the applicant in his workplace.

48Essentially, the applicant asserts that the Association could have done more. Whether or not that is the case, the evidence does not support the conclusion that any failure to “do more” was discriminatory. There is no evidence that any alleged deficiency was different from the Association’s advocacy on behalf of other members, with or without a disability.

49Finally, my conclusions apply with equal force to the individual respondents. There is no basis for a finding that any of them acted in a discriminatory manner towards the applicant and for some of them, there is no evidence whatsoever about their involvement.

50In the result, the Application is dismissed.