Veronique Nyonzima v. Service Employees International Union, Local 1, 2010 HRTO 1438

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Veronique Nyonzima Applicant

-and-

Service Employees International Union, Local 1 and Douglas McGuigan Respondents

-and-

Idlewyld Manor Intervenor

DECISION

Adjudicator: Sherry Liang Date: June 30, 2010 Citation: 2010 HRTO 1438 Indexed as: Nyonzima v. Service Employees International Union, Local 1

APPEARANCES

Veronique Nyonzima, Applicant ) Glen Morrison, Representative ) Service Employees International Union, Local 1 Canada and Douglas McGuigan, Respondents ) Ken Stuebing, Counsel Idlewyld Manor, Intervenor ) Jane Gooding, Counsel

1This is an Application filed on November 19, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2On June 25, 2010, the Tribunal held a conference call with the parties to receive submissions on the respondents’ Request for an Order During Proceedings seeking early dismissal of the Application. For the following reasons, the Request is granted and the Application is dismissed.

BACKGROUND

3The applicant is a part-time Health Care Aide employed by Idlewyld Manor (“Idlewyld”) and covered by the terms of a collective agreement between Idlewyld and the respondent union. On August 25, 2009, the applicant filed an Application naming her employer and a manager as respondents. In that Application, she alleges discrimination in employment on the grounds of race, colour, place of origin and ethnic origin. On November 9, 2009, the applicant filed two further Applications, one against her employer and the same manager and the present Application, against the union and its Chief Steward for the Idlewyld bargaining unit. Each is based on an allegation of reprisal under the Code. The narrative provided in the two Applications is identical.

4The Tribunal issued a Notice of Intent to Dismiss in the present Application. Following submissions from the applicant, the Tribunal issued an Interim Decision stating that it was “not plain and obvious that the matters raised in the Application are not covered by the Code”, and continued to process it.

5The respondents filed a Response as well as a Request for Order. They take the position, among other things, that the Application does not disclose a prima facie violation of the Code, is an abuse of process, and ought to be dismissed without a hearing. They state that there are no facts pleaded upon which the Tribunal could possibly find that they have engaged in any conduct that would amount to a reprisal or threat of reprisal.

6Because of my conclusion below, it is unnecessary to consider the argument that this Application is an abuse of process.

7It should be noted that during the conference call I granted the Request to Intervene made by Idlewyld. Although it reserved the right to participate further should the Application proceed, Idlewyld did not seek to make submissions during the conference call.

REPRISAL

8Section 8 of the Code provides:

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.

9In Noble v. York University, 2010 HRTO 878, the Tribunal recently considered the purpose and application of the reprisal provision in the Code:

The prohibition against reprisal is an important provision in the Code. Its purpose is to ensure that individuals may “claim and enforce” the fundamental rights embodied in the Code without fear or intimidation. It protects the integrity of the process before the Tribunal, as well as in other complaint procedures that may be established under human rights policies. An individual need not prove that their rights have in fact been infringed to claim protection of section 8. As the Court has said, “Without a strict prohibition against reprisals, the purposes and effectiveness of the statute would be significantly diluted.” See: Jones v. Amway of Canada Ltd. (2002), CHRR Doc. 02-177 (Ont. Sup. Ct.), at para. 4.

In order to prove reprisal, a complainant (now an applicant) must establish that the respondent engaged in an action, or threat, which was intended as a retaliation for the claiming or enforcement of a right under the Code. Unlike an allegation of discrimination, where intention is not a necessary element to prove a violation, where reprisal is alleged, the complainant must establish that the action was taken with an intent to punish or retaliate. See: Jones, supra; Jones v. Amway of Canada Ltd., 2001 CanLII 26217 (ON H.R.T.); Ketola v. Value Propane Ltd., 2002 CanLII 46510 (ON H.R.T.); Moffatt v. Kinark Child & Family Services (1998), 1998 CanLII 29857 (ON HRT), 35 C.H.R.R. D/205 (Ont. Bd. Inq.).

Thus, in a complaint or application alleging reprisal, the following elements must be established:

a. An action taken against, or threat made to, the complainant;

b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and

c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

In addition, the following principles are relevant:

a. There is no strict requirement that the complainant has filed a complaint or application under the Code, and

b. There is no requirement that the Tribunal find the respondent did in fact violate the complainant’s substantive rights to be free from discrimination.

10In this Application, the materials filed by the applicant are almost devoid of any facts in relation to these respondents. Almost the entirety of the narrative concerns alleged actions of the employer. The only facts that can be understood to concern these respondents are:

• The union knew that the applicant had filed the Application of August 25, 2009 against her employer.
• She told the union about certain events in the workplace that she believed were harassment.
• The union neglected and continues to neglect to offer to assist her.
• The union steward was present at a meeting on October 15, 2009 during which the applicant was told of concerns about her work performance, the applicant stated that the allegations were false, and stated that she felt that since her first Application to the Tribunal, she was being “watched like a hawk.” There was a lack of support from her union representative during this meeting.
• She was contacted by the union and ordered to a further meeting on October 29, 2009, during which the employer offered her the option of a transfer, or to remain at her current location, and the applicant accepted the transfer.

11The applicant, though represented by a paralegal, did not file a response to the Request. Neither did she file a Reply to the Response. As of the date of the conference call, the above constituted the allegations against the respondents.

12During the conference call, the applicant’s representative asked that the Tribunal permit the Application to proceed to a hearing at which time the applicant would give evidence in support of her allegations. He submitted that she should have the opportunity to give her evidence and have the Tribunal decide, on the balance of probabilities, whether she has established a violation of the Code.

13In 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:

The 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.), 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.

….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.

14In Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025, the Tribunal discussed at which stage the issue may be considered:

In 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).

15Under the Tribunal’s Rules of Procedure, the Tribunal has the authority to determine the order in which issues will be considered, including those considered by a party to be preliminary. In the present case, I find it fair, just and expeditious to determine, on the basis of the material before me and the submissions of the parties, whether the applicant has met her burden of establishing a prima facie case that the union has engaged in a reprisal against her under the Code.

16Despite her failure to respond to the Request for Order, I gave the applicant’s representative an opportunity, during the conference call, to provide the Tribunal with any additional facts that she would rely on at a hearing which could support the applicant’s contention that the respondents violated section 8 of the Code. The only additional factual assertions that he made were to the effect that despite being asked “ten times” to file a grievance, the union did not.

17After considering the documentary material as well as the submissions of the applicant’s representative during the conference call, I find that the applicant’s allegations would not, even if believed, be complete and sufficient to justify a finding in the applicant's favour. At its highest, the applicant’s allegations against the union are that it failed to support her claims of harassment in the workplace. Even if true, and even in conjunction with the other factual assertions made, there is no basis for a finding that this inaction was related to the applicant’s prior application against her employer. There is also no basis for a finding that the union intended to retaliate against the applicant for filing an application against the employer.

18I accept that in many cases, there may be no direct evidence of a respondent’s intention to take reprisal action. But the absence of direct evidence does not justify requiring a response from a respondent where there is no reasonable basis that could even lead to an inference that there is an intent to take a reprisal related to the assertion of a human rights claim. In the case before me, the “proceedings” within the meaning of section 8 that are said to have given rise to reprisal action are not proceedings against the union, but against the employer. In the absence of a common interest, the applicant would have to establish that the union intended to retaliate against her for bringing a human rights application against another, unrelated party. The applicant’s assertions about the union’s failure to support her in the workplace do not provide a reasonable basis for drawing such an inference.

19On any test, and even if the Application were amended to include the additional facts asserted during the conference call, the Application does not establish a prima facie case that the respondents engaged in a reprisal against the applicant within the meaning of the Code.

20The Application is accordingly dismissed.