HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Yavuz Gungor

Applicant

• and-

Canadian Auto Workers Local 88

Respondent

INTERIM decision

Adjudicator: Alan Whyte

Date: April 27, 2010

Citation: 2010 HRTO 912

Indexed as: Gungor v. Canadian Auto Workers Local 88

APPEARANCES / wRITTEN SUBMISSIONS BY

Yavuz Gungor, Applicant ) Cynthia Mackenzie, Counsel

Canadian Auto Workers ) Keith Osborne, National Represtantive

Local 88, Respondent )

1This is an Application filed under section 53(3) of Part IV of the Human Rights Code R.S.O. 1990, c. H.19 as amended (“the Code”) on December 12, 2008.

2The underlying complaint was commenced on April 1, 2005 and alleges discrimination in the areas of contract and employment on the basis of disability.

3This Interim Decision will address the respondent’s Request to dismiss and also provide directions for the further processing of this Application.

Request to dismiss

3The Request to dismiss was based on the following grounds:

a) the respondent agrees with the three remedies sought in the original complaint, and therefore the Application is moot;

b) the complaint was settled:

c) the complaint discloses no prima facie case of discrimination.

4The complaint as originally filed with the Ontario Human Rights Commission and abandoned upon the filing of this Application requested: the respondent represent the applicant in a grievance against his employer; receive education and training in its duty to assist disabled workers through accommodation; and apologize for failing to represent the applicant.

5The respondent says that the applicant abandoned the grievance process when he filed the complaint against the respondent, which had the effect (in the respondent's view) of stopping the applicant's appeal to the respondent’s National Executive Board.

6The applicant’s "Additional Facts, Remedies and Disclosure” (the “Additional Facts, Remedies and Disclosure document”) indicates that he no longer seeks representation by the respondent in the grievance process. He now seeks new remedies including monetary compensation. While the respondent did not address those new remedies in its submissions I have no reason to believe that it consents to them. Therefore, it cannot be said at this point in time that there is agreement on remedies.

7With respect to the second ground, a companion complaint was filed by the applicant against his employer CAMI Automotive Inc. (“CAMI”) in 2005. That complaint was settled between the applicant and CAMI by Minutes of Settlement dated May 22, 2008, which were not signed by the respondent. The release which forms part of the Minutes of Settlement purports to release both CAMI and the respondent. The respondent did not participate in the negotiations that led up to the completion of the minutes of settlement, although I was advised at the hearing that they were asked to participate financially but declined to do so.

8The applicant submitted that the respondent failed to provide any consideration for the release, that the Minutes of Settlement clearly relate only to the companion complaint against CAMI, and in general, the respondent cannot take the benefit of a settlement in which it did not participate.

9I agree with the position of the applicant. The Minutes of Settlement relate to the companion complaint only. It is clear that the respondent did not participate financially or in any other way in the negotiation of the settlement which is reflected in the Minutes of Settlement. It is not clear why the respondent is identified as a releasee, but it is undisputed the respondent provided no consideration for that release. Accordingly, I find that the Minutes of the Settlement between CAMI and the applicant did not constitute a settlement of the instant Application.

10With respect to the no prima facie case argument, it was submitted that the applicant’s main complaint is that the respondent took no action in response to his human rights issues. The respondent relied on Baylet v. Universal Workers Union, 2009 HRTO 700 for the proposition that the failure to represent an employee on a human rights claim 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. It was submitted that in order to found a claim against the respondent, the applicant must provide a factual basis that could give rise to a finding that it discriminated against him. The respondent conceded, however, that the applicant alleges Ms Graves made an discriminatory comment to him.

11The applicant argued that in certain contexts, inaction on the part of a union may amount to discrimination contrary to the Code. Furthermore, the applicant submits that beyond Ms Graves’ allegedly discriminatory comment the complaint contains other evidence of discrimination. For example, it is alleged that when CAMI provided allegedly inaccurate information about the essential duties of the job being sought by the applicant, Ms. Graves sat by quietly and failed to correct the information, despite having had the applicant explain to her the manner in which the information was incorrect.

12The complaint also alleges that the respondent’s internal appeal process was forced to proceed was discriminatory, as part of it required the applicant to appear in front of the general membership in order to plead his case in relation to very personal matters such as the applicant's medical condition. Moreover, the respondent allegedly refused to take any further action on the applicant's appeal to the National Executive Board after learning the applicant had commenced a human rights complaint against it.

13The complaint also alleges that in the period of August and September, 2005, the applicant ended up working in the area at CAMI for which he was apparently disqualified for medical reasons. He alleges that his supervisor urged him to "try it", which he did, and he found that he was able to perform the work. It is alleged that the union representatives observed all of this but did not change its position or pursue a grievance. Finally, it is also argued that the union's interpretation and application of the seniority provisions in the collective agreement between it and CAMI were discriminatory in its effect.

14I find that there are allegations against the respondent which go beyond the simple allegation of failure to act. Accordingly, a prima facie case of discrimination exists; this statement is of course based only on the pleadings and submissions of the parties to this point in time, and does not bind the adjudicator hearing this matter.

Directions

15In accordance with Rule 9.2 of the Rules of Procedure for Transitional Applications, the respondent is required to provide its position with respect to the requested remedies. In its document dated August 5, 2009, the respondent provided its position with respect to the remedies set out in the original complaint only. It did not address the remedies sought in the applicant’s "Additional Facts, Remedies and Disclosure" document.

16The respondent is directed to file its position with respect to the new remedies sought by the applicant within 21 days of this Interim Decision. In doing so, it must set out its position with respect to each of the facts relied upon by the applicant as set out in paragraph 22 (e) of the "Additional Facts, Remedies and Disclosure" document.

17The Registrar-Transition will schedule the hearing in the ordinary course.