Bradt v. Metro Ontario Inc., 2010 HRTO 480

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Bradt

Applicant

-and-

Metro Ontario Inc. and Rick Crean

Respondents

AND B E T W E E N:

Michael Bradt

Applicant

-and-

United Food & Commercial Workers Canada, Local Unions 175 & 633 and Georgina Watts

Respondents

DECISION

Adjudicator: Mark Hart

Date: March 3, 2010

Citation: 2010 HRTO 480

Indexed as: Bradt v. Metro Ontario

APPEARANCES BY

Michael Bradt, Applicant ) On his own behalf

Metro Ontario Inc. and Rick Crean, ) Charles Robertson, Respondents ) Counsel

United Food & Commercial Workers Canada, ) Michael Hancock, Local Unions 175 & 633, Respondent ) Counsel

Georgina Watts, Respondent ) Victoria Shen, ) Counsel

1These are two Applications both dated June 27, 2009 and filed under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaints in this matter were both filed with the Ontario Human Rights Commission (the “Commission”) on November 24, 2007.

2A preliminary hearing in this matter took place on March 1, 2010 to determine the issue raised by the respondents that the Applications should be dismissed on a variety of grounds.

3In keeping with the expeditious manner in which s. 53 applications are to be conducted, at the conclusion of the hearing on March 1, 2010, I issued the following oral decision.

1. This is a preliminary hearing to address requests made by the respondents in both applications for dismissal of the proceeding.

2. I will first address the request for dismissal filed by the respondents, Metro Ontario Inc., which was the applicant’s employer at the material time, and Rick Crean.

3. These respondents’ first argument is that the Application against them should be dismissed pursuant to s. 45.1 of the Code on the basis that the substance of the Application already was appropriately dealt with in another proceeding, namely the arbitration proceeding before Mr. Dissanayake, which resulted in his decision dated June 26, 2007.

4. The applicant’s complaint as against his employer and Mr. Crean sets out two primary allegations. First, the applicant alleges that he experienced harassment because of his sexual orientation when, during the course of a disciplinary investigation, Mr. Crean referred to him and his co-workers as “freaks”. Second, the applicant alleges that the termination of his employment was a reprisal for him having pursued earlier harassment allegations in a complaint before the Ontario Labour Relations Board which resulted in a settlement in March 2005.

5. The Tribunal’s case law has established that a labour arbitration proceeding is a “proceeding” within the meaning of s. 45.1 of the Code. Accordingly, the question for me is whether the substance of the Application was appropriately dealt with in that proceeding. I find that it was. The arbitration proceeding addresses the issues relating to the applicant’s termination in great detail, and concludes that the employer did have just cause to support the applicant’s dismissal. The arbitration proceeding also expressly adverts to the harassment allegation, and the arbitrator finds that there is no evidence that supports that the alleged comment was made by Mr. Crean.

6. The material before me indicates that the applicant withdrew from further participation in the arbitration proceeding after the hearing had proceeded over ten hearing days and after the employer had led all of its evidence in support of the termination and the applicant had been called by the union and had completed his testimony in chief. The material indicates that the applicant withdrew because of a dispute with union counsel over the conduct of the proceeding and what evidence and witnesses should be called, and his feeling that his interests were not properly being represented by the union.

7. The applicant was expressly advised by the arbitrator that there may be potential legal consequences arising from his decision to cease participating in the proceeding, and the arbitrator also notes in his decision that the applicant did not want to abandon his grievances as he was seeking an adjournment to bring an application to the Ontario Labour Relations Board. In addition, over the objection of the employer, the union took the position that the arbitration proceeding could continue in the applicant’s absence and the arbitrator ruled in the union’s favour in this regard.

8. In the specific circumstances of this case, given the advanced stage of the proceeding before the arbitrator, the specific warning given to the applicant regarding the potential legal consequences, and the fact that the proceeding continued to its conclusion, I do not find that the applicant’s decision to cease participating in the arbitration hearing is a sufficient basis upon which to conclude that the substance of the Application was not appropriately dealt with.

9. The applicant’s complaint raises one further allegation in relation to evidence alleged to have been given by Mr. Crean during the course of the arbitration hearing. The complaint alleges that Mr. Crean used the words “those people” in reference to the diversity of the population served by the store where the applicant worked, which is located in the Front and Church Street area in downtown Toronto. This allegation was not dealt with in the arbitrator’s decision, and thus there is no basis to support the dismissal of this allegation pursuant to s. 45.1 of the Code.

10. However, these respondents also take the position that the Application should be dismissed for failure to make out a prima facie case. Given my disposition regarding the other allegations raised in the Application, it is not necessary for me to address this issue as it pertains to those allegations. However, with regard to the final allegation relating to the comment alleged to have been made at the arbitration proceeding, I find that the applicant has not made out a prima facie case to link this allegation to the prohibited ground of sexual orientation. There is nothing specific about the comment or the context in which it was made that would connect it to this ground, as there certainly is a very broadly diverse population in the area surrounding the store in question and nothing about that diverse population that is specifically identifiable with the ground of sexual orientation.

11. As a result, the application against Metro Ontario Inc. and Mr. Crean is dismissed in its entirety.

12. I will next address the Application as against the union and Ms. Watts. These respondents seek dismissal of the Application on the basis that this Tribunal lacks jurisdiction to deal with the allegations raised, that the application fails to set out a prima facie case of discrimination in violation of the Code, and as an abuse of process.

13. At the preliminary hearing, I clarified the basis upon which the applicant alleges that these respondents violated his rights under the Code. It is clear that the applicant is not happy with the representation that he received from his union and counsel in pursuing the issues raised in his grievances. However, that alone is not a sufficient basis upon which to support an allegation of a Human Rights Code violation.

14. The first basis upon which the applicant alleges that he experienced discrimination under the Code is that the union failed to follow a joint investigation procedure established under a specific provision, Article 3.03, of the collective agreement. The question of whether a party followed a specific collective agreement provision is not a basis upon which to support a violation of the Human Rights Code, but rather is a matter within the exclusive jurisdiction of a labour arbitrator appointed under the agreement or the Labour Relations Act.

15. While the case law is clear that a union, as one of the workplace partners in a unionized work environment, has a separate obligation from the employer to take steps to address discrimination and harassment in the workplace, this general obligation is distinct from any specific obligation imposed under the collective agreement. In this case, the union did advance the applicant’s grievance alleging harassment and attempted to pursue this allegation in the arbitration proceeding, but its attempts to do so were frustrated by the applicant’s withdrawal from the arbitration process.

16. I do not find that the applicant’s allegation of any failure to follow a specific collective agreement provision separate and apart from the union’s general obligations under human rights law is a matter within this Tribunal’s jurisdiction nor do I find that the applicant has established a prima facie case to support that the union failed in its general obligations under human rights law. Similarly and for the same reasons, any alleged failure by union counsel to pursue whether the specific provision under the collective agreement was adhered to is not a matter within this Tribunal’s jurisdiction.

17. The applicant also alleges that the union failed to advise him of his right to file a human rights complaint. Once again, I do not find, in the specific circumstances of this case where a harassment obligation is being pursued by a union through the grievance arbitration procedure, that a mere failure to advise as to a member’s rights under another statutory regime is a sufficient basis to support an allegation of a violation of the Human Rights Code.

18. The applicant also raises allegations regarding union counsel’s conduct of the arbitration proceeding, particularly in relation to her alleged refusal to call certain witnesses as part of the union’s case. Once again, general issues regarding the union’s representation of a member in the conduct of an arbitration proceeding are matters within the jurisdiction of the Ontario Labour Relations Board, and do not provide a sufficient basis to support an allegation of a violation of the Human Rights Code. I find that there is no sufficient basis in the material filed by the applicant or in the submissions he made at the hearing that supports a prima facie case that union counsel’s conduct of the arbitration proceeding is capable of supporting a violation of the Human Rights Code.

19. Finally, the applicant alleges that the union and its counsel failed to address the comment about “those people” alleged to have been made by Mr. Crean at the arbitration proceeding. In light of my finding that this comment does not support a prima facie violation of the Code on the ground alleged, any failure by the union or its counsel to address such a comment also is not capable of supporting a potential Code violation.

20. As a result, the Application against the union and Ms. Watts is also dismissed in its entirety.

4As a result, the Applications are dismissed.