Geleff v. Ontario Nurses Association, 2011 HRTO 1192

Human Rights Tribunal of Ontario

Between:

Diane Geleff Applicant

-and-

Ontario Nurses Association, Local 096 Respondent

Interim Decision

Adjudicator: David Muir Date: June 21, 2011 Citation: 2011 HRTO 1192 Indexed as: Geleff v. Ontario Nurses Association

1The applicant filed this Application on June 30, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). This Interim Decision deals with a Request for a Summary Hearing (Request) filed by the respondent.

Background

2The human rights complaint underlying this Application was filed with the Ontario Human Rights Commission (the complaint) on or about February 4, 2008. The applicant alleges in the complaint that her right to be free from discrimination in employment on the basis of ancestry, ethnic origin, place of origin and family status was infringed by the respondent. The allegations in the complaint relate largely to the conduct of the employer and work colleagues. A companion Application against her former employer and co-workers based on the same complaint was filed by the applicant on June 30, 2009. That Application was dismissed for delay in 2011 HRTO 911.

3The allegations against the respondent, the applicant's bargaining agent, are limited. She states that she made the respondent union aware of her issues in the workplace but that they did not take the appropriate steps to vindicate her rights or take any steps to avoid the creation of a poisoned work environment by the conduct of two co-workers. The applicant alleges that as a result of the poisoned work environment she became ill and was required to leave the workplace and has not returned to work with the respondent hospital. These allegations relate to events in the spring and summer of 2005 and may be out of time.

4The applicant also alleges in the complaint that while a grievance was filed in July 2005 and then amended to deal with her human rights complaints in August 2005, the union's conduct of the grievance arbitration was "pretextual". The applicant alleges because she was perceived to be a privileged white woman and her alleged harassers black women she was subject to reverse discrimination by the respondent. She states that because of this "reverse discrimination" the respondent did not take her concerns seriously and that this attitude was reflected in the manner in which they approached the arbitration process. The applicant states that the union was more interested in mediating a settlement than in proceeding to a hearing. The applicant also alleges that in June 2007 a representative of the respondent told her "that things would have been different if she had been a woman of colour, yes, if a minority like them this whole thing wouldn't have happened the way that it did and could have been worked out: and they should separate the races and not all work together."

5The respondent has filed a Request for a Summary Hearing on the basis that the Application:

a. is untimely;

b. raises a complaint which does not fall within the jurisdiction of the HRTO; and

c. has no reasonable prospect of succeeding.

6The applicant opposes the Request.

7The Request for a summary hearing is denied. There is no provision for summary hearings in the Rules of Procedure for Transitional Applications. However the real question is whether or not there ought to be a preliminary hearing on the issues raised by the respondent in its request. At this stage I am not persuaded that there should be.

8The respondent takes three positions. First it says the complaint is out of time as it relates to events in the spring and summer of 2005 and the complaint was filed with the Commission in February 2008. Second it says that the Tribunal has no jurisdiction because this is really a complaint about the union's representation of her and that the Ontario Labour Relations Board has exclusive jurisdiction. Finally the respondent says that the Application has no reasonable prospect of success. I will deal with these each in turn.

Delay

9Section 34 of the Code provides as follows:

34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

34(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

10The Application is not out of time. I agree with the respondent union that much of the complaint relates to events between March and June of 2005. Much of it relates to the conduct of the employer and only tangentially, if at all, implicates the respondent union at that stage. Any allegations implicating the union in that time frame are likely out of time unless they can be seen to be as part of a series of incidents within the meaning of section 34(2). Given the lack of particularity of the allegations in that time period I am unable to determine whether any incident at that stage might be seen to be one of a series of incidents within the meaning of the section.

11However the essential nature of the applicant's complaint is that the manner in which the union proceeded with the grievance arbitration was discriminatory.

12The grievance was filed in July and amended in 2005. The first hearing date in the arbitration took place in June 2006. There are no facts plead between July 2005 and June 2006.

13On the first day of the arbitration the parties engaged in settlement discussions. An offer was made by the employer and was recommended to the applicant by the respondent union. The applicant would not accept the settlement. Sometime in 2006 the applicant retained counsel of her own. On July 26, 2006 counsel for the applicant wrote to the respondent union and alleged that the respondent union had failed to represent her properly.

14The second day of the arbitration hearing was scheduled for June 27, 2007. At that time the parties again attempted to resolve the grievance. The applicant's counsel was invited to participate and did so. The employer made an offer to resolve the matter. Both the respondent union and her counsel recommended that the applicant accept the proposed settlement. The applicant refused the settlement offer. The next hearing date was in June 2008 after the complaint was filed with the Commission.

15As indicated the applicant's essential claim is that the union was going through the motions in the arbitration and was interested only in a mediated settlement. This concern appears to have arisen in June 2006. The arbitration continued with a further attempt to settle it in June 2007. Efforts to resolve it continued after the complaint was filed in February 2008 until the summer of 2010.

16There are a host of reasons why the respondent union might have wanted to settle this grievance and that intention is not in and of itself discriminatory. However if the perception of the applicant as a privileged white woman was a factor in the decision-making of the respondent that may be sufficient to establish a violation of the Code. There is also the one allegation of comments made by an unnamed union official in June 2007. This allegation if found to be true, would tend to support the applicant's central contention.

17While there is a distinct lack of particulars for the claim at this stage, I am persuaded that that there are allegations of discriminatory conduct by the respondent and/or its officials within the 12 month period prior to the complaint being filed in February 2008. It may be that the allegations prior to June 2007 are in time as well; however there are insufficient particulars to determine that issue at this stage.

The Jurisdictional Issue

18The respondent states that because this is essentially a complaint that the union represented her in a discriminatory manner that the OLRB has exclusive jurisdiction. The respondent states that the Application involves the duty of fair representation under s. 74 of the Ontario Labour Relations Act and not discrimination under the Code. For that reason the respondent submits that the Tribunal lacks jurisdiction to hear the dispute.

19I do not agree. While it is true that the applicant might have brought an application under section 74 of the OLRA she did not. The respondent provided no authority for the proposition that the OLRB has exclusive jurisdiction over allegations of discriminatory conduct by a trade union in its representation of one of its members. I find that the Tribunal has jurisdiction to consider the applicant's Application.

No Reasonable Prospect of Success

20The respondent states that the applicant's claim is that the respondent's decision-making was motivated by considerations of reverse discrimination. The respondent states that these are bald assertions with almost no facts plead to support them. The facts plead by the applicant are limited to allegations that the respondent was more interested in a mediated resolution to her workplace concerns rather then proceeding to a hearing and the comments made by an unnamed representative of the respondent in June 2007 as set out above.

21I agree with the respondent that there are few facts plead which would support the central claim of the applicant. However few facts alleged is not the same as there being no facts. I also agree that the fact that a trade union might prefer a mediated settlement rather than proceeding to hearing is not in and of itself evidence of discrimination. A trade union is not required to conduct an arbitration in accordance with the grievor's wishes or preferences. However, as suggested earlier, if a factor in the respondent's decision making was that the applicant was a white woman and the respondents in the arbitration, black women this may amount to a violation of the Code. I am not satisfied at this stage that this Application has no reasonable prospect of success.

Other Matters

22The applicant has claimed discrimination on the basis of family status. There appear to be no allegations in the complaint remotely capable of engaging that ground. The claim is one of reverse discrimination which may engage the other grounds alleged. The applicant has also claimed in her submissions in response to this Request that the respondent union discriminated against the applicant in respect of an alleged disability. There is no such allegation in the complaint and I have no jurisdiction to consider that issue. Moreover the applicant states that the discrimination by the respondent was ongoing culminating in its decision to withdraw the applicant's grievance in July 2010. As I indicated previously in 2010 HRTO 2013, where this issue was considered first, the Tribunal has no jurisdiction to consider allegations beyond the filing of the complaint in February 2008.

23There remains a further issue with respect to the scope of this matter. As indicated above there is a decided lack of particularity in the complaint as it relates to the respondent union, it being primarily about the conduct of co-workers and her former employer. If the applicant intends to rely upon any further incidents beyond the allegations in June 2007 she will provide, within 30 days of the date of this decision, full particulars of any such incidents with submissions respecting how these incidents constitute a series of incidents within the meaning of section 34(2) of the Code. Upon receipt of this material, if any, the respondent may deliver and file their submission on the delay issue that may arise out of the particulars.

24I am not seized of this case.