HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jeremy Woodcock
Applicant
-and-
Gerdau Ameristeel Inc.
Respondent
-and-
United Steelworkers Local 6571
Intervenor
INTERIM DECISION
Adjudicator: David A. Wright
Date: April 9, 2010
Citation: 2010 HRTO 790
Indexed as: Woodcock v. Gerdau Ameristeel
APPEARANCES
Jeremy Woodcock, Applicant ) On His Own Behalf
Gerdau Ameristeel Inc., Respondent ) Mark Contini, Counsel
United Steelworkers Local 6571, Intervenor ) Mark Rowlinson, Counsel
[1] The following Interim Decision was delivered orally at the hearing held on April 7, 2010:
1. This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). It arises from the applicant’s allegation that he has not been returned to work with his employer, Gerdau Ameristeel Inc. (the “employer”), following a workplace injury in 2006. He alleges that this is a failure to accommodate his disability to the point of undue hardship, contrary to the Code. The applicant also alleges that his union, United Steelworkers Local 6571 (the “union”), discriminated against him through various actions and inactions following his workplace injury.
2. This Interim Decision addresses a request by the union that the Application against it be dismissed. With regard to the allegations in the Application that predate 2009, it relies upon s. 45.1 of the Code, and argues that the substance of the Application has been appropriately dealt with through three duty of fair representation complaints pursuant to s. 74 of the Labour Relations Act, S.O. 1995, c. 1, Sched. A, as amended, that were determined by the Ontario Labour Relations Board (the “Board”). As for the allegations of discrimination in 2009, the union alleges that they do not, in fact, allege discrimination by the union within the meaning of the Code, but only an alleged failure to file a grievance on the applicant’s behalf.
3. I address first the Union’s arguments under s.45.1. This section reads as follows:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
There is no question that a Duty of Fair Representation complaint is a proceeding for the purposes of s. 45.1. The issue is whether the three Board decisions have “appropriately dealt with” the substance of the Application that has been made to the Tribunal.
4. In Campbell v. Toronto District School Board, 2008 HRTO 62, the Tribunal discussed some principles that apply to the interpretation of s. 45.1, that have been applied in many cases since then. Among them are:
that the purpose of s. 45.1 is to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere;
that the Tribunal should not be overly technical in determining whether another proceeding has appropriately dealt with the substance of the application;
that the Tribunal does not act as an appellate court from the decisions of other tribunals and need not be satisfied that it would have reached the same conclusion as that reached in the other forum, and;
that the other Tribunal need not be directly applying the Code so long as it is considering human rights principles, which may be applied through a different statutory framework.
5. The Tribunal has also addressed the relationship between the Code and the duty of fair representation under s. 74 of the Labour Relations Act. At para. 29 of Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, the Tribunal noted that the prohibition on discrimination in s. 74 of the Labour Relations Act incorporates discrimination on Code grounds. Discrimination under s. 74 of the Labour Relations Act, in other words, includes discrimination contrary to the Code.
6. It is evident that in his three s. 74 complaints to the Board, the applicant raised the same allegations of discrimination that he now makes in this Application. On a review of the three Board decisions, it is evident that in dismissing the s. 74 complaints, the Board rejected the applicant’s allegations that the Union had discriminated against him. It is also evident that the Board was considering and applying human rights principles in doing so. While the Board did not specifically say that it found no discrimination under the Code, its conclusion that there had been no discrimination under s. 74 of the Labour Relations Act, in particular given the applicant’s clear allegations of Code-based discrimination, incorporated this finding.
8. Although the applicant objects to the results reached by the Board, and to the Board’s characterization and determinations of the facts, his submissions in this regard essentially ask the Tribunal to sit on appeal from or revisit its conclusions. It is not the Tribunal’s role to do so.
9. I find, therefore, that the substance of the Application against the union, as it relates to the pre-2009 allegations has been appropriately dealt with in the proceedings before the Ontario Labour Relations Board.
10. As for the 2009 allegations, I agree with the union that they do not, in fact, allege a violation of the Code by the union. They merely assert the union’s failure to file a grievance regarding accommodation issues. This Tribunal has held on numerous occasions that the actions, or failure to act, of an individual’s collective bargaining representative on human rights issues are not, in and of themselves discrimination: see, for example Traversy v. Mississauga Firefighters’ Association, 2009 HRTO 996 at para. 33. There is no basis to continue the Application against the union based on these allegations.
11. Accordingly, the Application is dismissed as against United Steelworkers Local 6571.
12. The Union asks to intervene in this Application. In accordance with the Tribunal’s standard practice where an applicant is a member of a bargaining unit represented by the union, the request is granted.
Dated at Toronto, this 9^th^ day of April, 2010.
“Signed By”
David A. Wright
Interim Chair