Palacios v. The Builder’s Warehouse, 2010 HRTO 606

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Roman Henriquez Palacios

Applicant

-and-

The Builder’s Warehouse Inc., Jean-Guy Belliveau, Gary Rozon, Carole Lalonde, Denis Lapage and Luc Legault

Respondents

-and-

Teamsters Local Union No. 230

Affected Party

INTERIM DECISION

Adjudicator: Mark Hart

Date: March 22, 2010

Citation: 2010 HRTO 606

Indexed as: Palacios v. The Builder’s Warehouse

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, dated March 19, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on May 1, 2008.

2The purpose of this Interim Decision is to address the respondents’ request to add the Teamsters Local Union No. 230 (the “union”) as a party respondent to this Application. I am aware that the union has filed a request to intervene in this matter, but the deadline for responding to this request has not yet expired so the intervention request will be addressed in a separate decision.

3The Application was filed against the applicant’s former employer and various management representatives alleging discrimination in employment because of colour, ethnic origin, place of origin and race and reprisal arising out of the way the applicant alleges that he was treated in the workplace leading to his layoff in December 2007.

4The respondents state that the applicant has made allegations against the union which can only be addressed by the union. They state that the applicant has alleged that the union participated in the alleged discrimination against him, and that it should therefore be added as a party respondent as the current respondent cannot be held responsible for the actions of the union as a third party over which the current respondents have no control. The respondents also take the position that it would be prejudicial to the union if the Tribunal were to make findings against it without affording the union an opportunity to respond.

5The union objects to being added as a party respondent to this proceeding. The union states that there are no allegations in the Application that could support a finding that the union violated the Code and that no such allegations against the union have been raised by the applicant. The union notes that the applicant could have identified the union as a respondent to his human rights complaint, but chose not to do so.

6The union states that any allegations made against the union in the Application relate to the union’s representation of the applicant, which is not an allegation of a violation of the Code. Rather, the union states that this Tribunal consistently has held that a union cannot be found to have violated the Code because it failed to properly or adequately represent one of its members, and that the question of whether the union has fulfilled its duty of fair representation under the Labour Relations Act is a matter for the Ontario Labour Relations Board (“OLRB”) to determine: see Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025.

7Upon review of the Application, the union is referenced in a few places. First, after the applicant alleges that he was accused on November 1, 2007 of giving the wrong product to a customer, the applicant alleges that the union did nothing about it and that he filed a grievance that he was told would not proceed because it was too late. The applicant also alleges that, following his layoff in December 2007, he filed a second grievance which did not proceed. Finally, in response to a specific question on the human rights complaint about whether he has a union and had filed grievances, the applicant alleges that “even the [union] steward has showed to be against my nationality” and had used a profane racial slur against him. The applicant also references some other incidents which are identified by date, but with no particulars.

8If this were solely a matter of the union’s alleged failure to properly represent the applicant in relation to his grievances, I would agree with the union that this is not an allegation of a violation of the Code and is a matter for the OLRB. However, this case is distinguishable from Arias, on the basis that in that case there was no allegation that any alleged failure by the union to properly represent the applicant was attributable to a prohibited ground of discrimination; whereas in the instant case, there is an allegation by the applicant that the union steward was against him because of his nationality as a Mexican.

9However, the mere fact that there are statements made in a human rights complaint or Application which may form the basis of an allegation of a violation of the Code as against a third party who is not a named respondent is not, in my view, a sufficient basis upon which to add any such third party as a party respondent. A human rights complaint or Application represents the commencement of a legal proceeding by the applicant, and it is up to the applicant to choose what allegations of potential violations of the Code she or he wishes to raise and to identify as respondents the persons against whom these allegations are made. If an applicant chooses not to pursue an allegation of a potential violation of the Code by some other person who is not named as a party respondent, that is her or his choice.

10This is distinguishable from the situation where, in respect of the very acts of alleged discrimination made against the persons named as respondents, there is a third party who is alleged to have caused or contributed to these same alleged acts of discrimination. In such circumstances, this Tribunal has entertained requests by a respondent to add a third party as an additional respondent: see Sandhu v. Royal Group, 2009 HRTO 1765; Visconti v. Great-West Life Assurance Company, 2009 HRTO 1442; Matar v. Liquor Control Board of Ontario, 2009 HRTO 1456.

11In the instant case, in contrast, the respondents have not asserted any basis upon which the union could be found to have caused or contributed to the very acts of discrimination alleged against them by the applicant, nor is there any such basis revealed by the materials filed to date. Whether or not the union failed to pursue the applicant’s grievances for a discriminatory reason or whether a union steward made a discriminatory comment about the applicant is independent of the allegations made against the named respondents that they themselves made racial slurs about the applicant, treated him in a discriminatory fashion, and put him on layoff for a discriminatory reason. As any allegations of a Code violation as against the union are independent of the allegations made against the named respondents, I do not find that there is an appropriate basis upon which to exercise my discretion to add the union as a party respondent where it has not been so identified by the applicant.

12For all of these reasons, the respondents’ request is denied.

13I am not seized.