Brenda Pinder v. Ontario Secondary School Teachers Association, 2010 HRTO 1863

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brenda Pinder

Applicant

-and-

Ontario Secondary School Teachers Association, Marg McPhail and Tony D’Andrea

Respondents

DECISION

Adjudicator: Dale Hewat

Date: September 13, 2010

Citation: 2010 HRTO 1863

Indexed as: Pinder v. Ontario Secondary School Teachers Association

APPEARANCES BY

Brenda Pinder, Applicant ) Self-represented

Ontario Secondary School Teachers Association, ) Simon Blackstone, Marg McPhail and Tony D’Andrea, Respondents ) Counsel )

INTRODUCTION

1This Application was filed under s. 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c.H-19, as amended (the “Code”) with respect to the applicant’s original complaint made to the Ontario Human Rights Commission on May 21, 2004. The applicant alleges discrimination in vocational association on the basis of disability. The applicant self-identifies as a person with multiple chemical sensitivity, chronic fatigue syndrome and fibromyalgia.

2On January 26, 2010, a preliminary hearing was held to consider the respondents’ request for early dismissal of the Application on the basis it does not establish a prima facie case of discrimination. The hearing proceeded on the basis that the facts in the Application were assumed to be true and each of the parties made oral submissions. The respondent, Ontario Secondary School Teachers Association (the “Union”) also requested the Tribunal to order the removal of the named personal respondents.

3The respondents argue that the applicant’s assertion that the Union discriminated against her because she claims that the personal respondents failed to adequately represent her in her efforts to seek accommodation of her chemical sensitivity and failed to initiate grievances does not constitute a prima facie case of discrimination under the Code.

4The applicant maintains that from May 2001 to the filing of the original complaint, the respondent, Ms. McPhail, Executive Officer for District 12 of the Union, discriminated against her by allowing her employer, the Toronto District School Board (the “TDSB”), to remove her name from the facilitated transfer list, by not referring her case to the Union’s lawyers, by asking the applicant to seriously consider which accommodation she “really needed”, generally declining to discuss the applicant’s needs, delaying an appeal of the TDSB’s insurance reimbursement decision and refusing to file a grievance against the TDSB for discrimination and lack of accommodation due to disability.

5With respect to the respondent, Mr. D’Andrea, while the applicant notes that he assisted her in August 2003, by November 2003, the applicant claims that he told her to “chill out” about her urgency for proper accommodation.

DECISION

6The Application is dismissed on the basis that it does not constitute a prima facie case of discrimination within the meaning of the Code. Having reached this conclusion, I do not need to deal with the request to remove the personal respondents. What follows are my reasons for the decision.

Background

7The applicant is now a retired teacher with the TDSB and has been a member of the Union for 25 years. In late 2000 the applicant became disabled with Multiple Chemical Sensitivities, Fibromyalgia and Chronic Fatigue Syndrome.

8The applicant was a teacher at Kipling Collegiate between 1999 to 2001 and held a two-year secondment at Trillium Demonstration School after which she returned to Kipling Collegiate in 2003. In February 2004 the applicant refused to work due to her health and safety and demanded that an accommodation plan be put into place.

9On March 8, 2004 the Union filed a grievance on the applicant’s behalf alleging that the TDSB failed in its duty to accommodate under the Collective Agreement and under the Code. Essentially, the applicant maintained that she returned to Kipling Collegiate without a plan in place to accommodate her disability-related needs. The grievance sought the following remedies:

1. That Brenda Pinder be fully accommodated immediately;

2. That a process be established by which any future accommodation needs can be discussed and implemented in a timely manner:

3. That the Board ensure that its administrators and employees are fully informed about their obligations under the Duty to Accommodate legislation and policies; and

4. Any other remedy that may be acceptable to the Union.

10The grievance proceeded to arbitration in early 2005 and resulted in an accommodation plan and signed minutes of settlement, resolving the grievance and the initial complaint against the TDSB. The terms of the Minutes of Settlement were incorporated into an arbitration award by Arbitrator Paula Knopf binding the Union, the TDSB and the applicant to a comprehensive accommodation plan. The Arbitrator has remained seized with regard to the implementation of the award and the Union has, on behalf of the applicant, returned to the Arbitrator on a number of occasions seeking clarification and additional remedial orders with respect to the accommodation plan.

11This Application against the Union pertains to a period beginning in 2001 and leading up to the filing of the grievance in March 2004. In the original complaint the applicant alleged that in 2003 Ms. McPhail allowed the TDSB to remove the applicant’s name from the facilitated transfer list (teachers who require medical or other accommodation upon school transfers) which resulted in there not being an accommodation plan in place when she returned to Kipling Collegiate for the 2003-2004 school year.

12During the hearing the applicant stated that although she was in contact with Ms. McPhail by email, Ms. McPhail never visited her at the Trillium Demonstration School to discuss her accommodation needs and claimed that Ms. McPhail appeared to know very little about the Code. In addition, the applicant claimed that during a meeting with the TDSB prior to her returning to Kipling Collegiate in 2003, Ms. McPhail did not advance the applicant’s need for an accommodation plan despite her knowledge of the applicant’s needs.

13The applicant claimed that Ms. McPhail asked her to contact the principal of Kipling Collegiate directly to discuss accommodation requirements and that this request was evidence of discrimination because it demonstrated the lack of support from the Union in assisting the applicant’s accommodation needs. Furthermore, the applicant claimed that when she asked Ms. McPhail about what she should do in the event of a chemical overexposure in the classroom, she was told that as a teacher she had a responsibility to remain in the classroom which resulted in instances when overexposure occurred of the applicant becoming ill for extended periods of time. Although Ms. McPhail was aware of the applicant’s medical needs and medical benefit requirements, the applicant claimed that Ms. McPhail took an extraordinary length of time to appeal a decision of the TDSB’s insurer that denied reimbursement for the applicant’s medications.

14The applicant did note, however, that subsequent to her work refusal in February 2004, Ms. McPhail and another Union representative continued to work with her on the terms of an accommodation plan but the applicant felt discouraged because Ms. McPhail asked her in a meeting in April 2004 to “seriously consider” which accommodations were “really needed” and believed that Ms. McPhail was not actively pursuing the March 2004 grievance because Ms. McPhail wanted to talk directly with the TDSB on an informal level as a way to deal with the accommodation needs. From the applicant’s perspective, she believed that Ms. McPhail was asking her to reduce the accommodation required and that Ms. McPhail did not understand that the applicant was asking for a plan of accommodation that would allow her to safely return to the classroom. The applicant emphasized that she had to spend an extra amount of time explaining to Ms. McPhail about her disability and its related needs.

15With respect to the applicant’s allegations raised against Mr. D’Andrea, the applicant noted that, although he was supportive of her accommodation requests in August 2003 prior to returning to Kipling Collegiate, she felt he discriminated against her in November 2003 when he told her to “chill out” about the filing of documents for specific accommodation needs. The applicant also claimed that when she complained to Ms. McPhail about Mr. D’Andrea’s comment, Ms. McPhail would not discuss his behaviour and referred to the fact that the Union positions are not paid.

16The Union maintains that it provided resources and support for the applicant with respect to accommodation requirements both through the Union generally and locally, through Ms. McPhail and Mr. D’Andrea. The Union disputes that the applicant’s case was not referred to legal counsel by Ms. McPhail and confirmed that the Union sought senior legal counsel’s advice and made the decision to refer her accommodation grievance to arbitration on March 8, 2004. The Union argues that it is significant that in her original complaint the applicant failed to mention that the Union’s President sent her a letter on February 26, 2004 confirming that Ms. McPhail would be meeting with Chuck Hay, Central Coordinating Principal for the TDSB Secondary Staffing, on February 29, 2004 to ascertain the TDSB’s position with regard to the applicant’s accommodation requirements and was told “should their position not meet our expectations, we will file a grievance against the Board at the next grievance meeting.” The Union argues that the fact that they filed a grievance on her behalf on March 8, 2004 contradicts the allegations in her complaint that Ms. McPhail constantly refused to file a grievance against the TDSB for discrimination and lack of accommodation due to disability.

17In terms of the specific allegations, the Union argued that while it disputes the applicant’s recollection of her status on the facilitated transfer list, there was no suggestion by the applicant that she was subject to differential treatment. Moreover, the Union emphasized that, based on the applicant’s version of events; it is evident that there were regular and continuing discussions with the TDSB and the applicant about accommodation requirements.

18While not agreeing that Mr. D’Andrea told the applicant to “chill out”, the Union noted that Mr. D’Andrea was continuing to pursue the applicant’s accommodation requirements in his capacity as a local Union officer and that, even if true, such a comment, or even the alleged comment by Ms. McPhail, does not violate the Code.

19With respect to the applicant’s allegations that she was told she is required to remain in the classroom, the Union argued that such comment, even on its face, does not amount to discrimination but simply reiterates the applicant’s obligation as a teacher. Finally, in terms of the assertion that Ms. McPhail asked the applicant what accommodation she “really needed”, the Union stated that the applicant was asked to consider an inventory of her accommodation needs as part of the March 2004 grievance process and was not being asked to eliminate accommodation requirements.

Does the Application Disclose a Prima Facie Case?

20In Jagait v. In TECH RISK Management, 2009 HRTO 779, the Tribunal set out its 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. Simpson Sears, 1985 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.

21The failure to represent a union member 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. See Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025. In Traversy v. Mississauga Professional Firefighters Association Local 1212, 2009 HRTO 996, the Tribunal stated:

(….) 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 must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.

22In the instant Application, the essence of the applicant’s claim is that the Union and the personal respondents failed to adequately represent her in her efforts to obtain effective accommodation of her chemical sensitivity and other disability related needs and failed to initiate grievances on her behalf. The applicant argues that the Code requires a union to actively pursue accommodation requirements with an employer and that the failure to do so or to properly consider the member’s accommodation needs constitutes discrimination on the basis of disability.

23Like the applicant in Traversy, supra, this applicant suggests that the Union’s failure to forcefully advocate or to “do more” on her behalf is evidence of discrimination. The applicant suggests, for example, that Ms. McPhail’s alleged lack of information and knowledge about the Code contributed to her discriminatory treatment because Ms. McPhail did not understand the applicant’s needs resulting in the applicant feeling that her concerns were not being taken seriously and that she had to educate Ms. McPhail regarding her disability and accommodation requirements.

24I cannot accept the applicant’s submissions. Her allegations do not establish that the Union, Ms. McPhail or Mr. D’Andrea took no steps to assist her. On the contrary, based on the applicant’s submissions it is evident that she was in contact with Ms. McPhail by email and that she was advised to speak with the principal directly about what accommodations were necessary for the applicant’s return to Kipling Collegiate in September 2003. I do not find that asking the applicant to have a discussion with the school principal establishes that Ms. McPhail or the Union did not support the applicant’s accommodation needs.

25In addition, while the applicant took issue with her removal from the facilitated transfer list, the allegation that Ms. McPhail allowed the removal is not in itself an act of discrimination or evidence of differential treatment of the applicant. The submissions also established that Mr. D’Andrea, as the local representative, was supportive of the applicant and was following through with the necessary paperwork for specific accommodation requirements for the applicant in November 2003. Even if Mr. D’Andrea told the applicant to “chill out”, the comment was made in response to the applicant’s concern about the length of time it was taking with the TDSB to finalize paperwork and cannot reasonably be interpreted as a discriminatory comment.

26The applicant’s submissions show that the Union and the personal respondents were willing to assist; however, not in the manner and intensity demanded by the applicant. It is not disputed that Ms. McPhail and the Union did pursue and were successful on an appeal of the TDSB’s insurer’s refusal to reimburse the applicant’s medication expenses. The fact that the appeal took some time and it appeared to the applicant that Ms. McPhail was delaying the matter again does not constitute discrimination.

27The submissions also established that Ms. McPhail and the Union were working with the applicant in February 2004 on the details of an accommodation plan. What is most telling, however, in this case is that the Union filed a grievance on March 8, 2004 and sought expedited arbitration seeking immediate accommodations and wide remedial measures on behalf of the applicant. Even in April 2004 just prior to the filing of the original human rights application, the Union and Ms. McPhail were working with the applicant to gather inventory of the applicant’s accommodation needs as part of the grievance process.

28Even if I assume that Ms. McPhail asked the applicant to confirm what she “really needed” in terms of accommodation, I cannot conclude that this type of question is discriminatory. Instead, what makes the most reasonable sense is that the Union was trying to gather the applicant’s list of needs and priorities in preparation for the arbitration of the grievance and possible negotiations. The fact that the applicant believed that Ms. McPhail did not fully understand her disability and her needs and believed that Ms. McPhail was not knowledgeable about the Code also does not establish a violation of the applicant’s Code rights or that Ms. McPhail treated the applicant differently because of disability.

29The applicant has not met the threshold for establishing a prima facie case of discrimination in this case. Even assuming the applicant’s facts to be true, I cannot find that the personal respondents’ or Union’s actions were based on discriminatory factors or any differential treatment of the applicant in violation of the Code.

30The Application is dismissed.