HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Joel Dahl
Applicant
-and-
Service Employees International Union, Local 2, J. Cameron Nelson and Brett Goodall
Respondents
Case Resolution Conference DECISION
Adjudicator: Sunil Kapur
Indexed as: Dahl v. Service Employees International Union, Local 2
APPEARANCES
Joel Dahl, Applicant ) Grace Mackintosh, Counsel
Service Employees International Union, Local 2 ) J. Cameron Nelson, and Brett Goodall, ) Bruce Price, Counsel Respondents ) )
Introduction
1The applicant has filed an Application, TR- 0351-09 (the “Application”), under sections 5 (employment) and 6 (vocational associations) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”), alleging that the respondents discriminated against him on the basis of creed, disability, family status, reprisal and sex. The respondent Service Employees International Union, Local 2 (the “Union”) was the applicant’s trade union during his employment with the Woodbine Entertainment Group (“Woodbine”). The individual respondents were officials with the Union. The applicant had filed an Application based on the same incidents against Woodbine. That Application was settled. The respondents are seeking to have the Application dismissed as not raising a prima facie case.
Background
2The applicant was employed by Woodbine until he left his employment on May 23, 2006. The applicant alleges that Woodbine had failed to accommodate his request for a shift change after he had returned from a parental leave. In August 2005, the applicant alleges that he requested the assistance of the Union in dealing with the “discriminating and harassing behaviour” he was being subjected to in his employment with Woodbine. The applicant alleges that he made several attempts to have the Union assist him and “process” his grievances against Woodbine. In January 2006, the Union forwarded to the applicant two grievances that were filed on his behalf. The applicant takes the position that one of the grievances is irrelevant to him and the other grievance was never signed by him or placed on his record. The grievances never proceeded to an arbitration hearing.
3At the same time that the Union forwarded the grievances to the applicant, the applicant states that he received a letter from the Union’s lawyer stating that “a grievance alleging that the failure to create a 5 AM shift violates your human rights would most certainly lose.” The applicant takes the position that this statement from the Union’s lawyer was intended to protect the Union against a duty of fair representation complaint under the Labour Relations Act, 1995, S.O. 1995, c.1, Sched. A (“Labour Relations Act”).
4The applicant alleges that in 2006 a new issue arose with his schedule such that his schedule would require him to choose between his religious beliefs or his seniority rights. The applicant alleges that he did not receive support from the Union in dealing with this scheduling issue.
5The applicant states that he resigned from his employment with Woodbine on May 23, 2006. The applicant states that he has requested that the Union assist him on many occasions and that “on many occasions the union promised to assist but never followed through.”
No prima facie case against the respondents
6The respondents have raised a preliminary objection to the jurisdiction of the Tribunal to deal with the Application.
7The respondents’ position is that the allegations made in the Application do not disclose a prima facie violation of the Code. The Union argues that the allegations, if true, would be a violation of its duty of fair representation under the Ontario Labour Relations Act.
8The onus is on the applicant to establish a prima facie case of discrimination. A prima facie case of discrimination is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant’s favour in the absence of an answer from the respondent. See Jagait v. IN TECH Risk Management, 2009 HRTO 779.
9No evidence was heard with respect to the objection that the Application should be dismissed because it does not raise a prima facie case. This ground for dismissal was determined on the allegations contained in the Applications as described therein and by hearing submissions of counsel for the applicant and counsel for the respondents during the hearing.
10The allegations in the Application are based on and centre around the applicant’s belief that he was discriminated against and harassed by Woodbine during the course of his employment. The applicant alleges that the respondents have breached the Code because they did not assist him in enforcing his rights under the Code against Woodbine. The applicant argues that the respondents were obligated under the Code to move the applicant’s grievances forward against Woodbine, and that a failure to do so was a breach of the Code. Nowhere in the Application or during submissions at the hearing before the Tribunal did the applicant allege that any actions (or non-actions) by the respondents were based on differential treatment because of a prohibited ground. Essentially, the applicant asserts that the Union failed to deal with his complaint in an appropriate manner. He does not go on to allege that the reason for the Union not dealing with his complaint in an appropriate manner is because of discrimination based on a prohibited ground.
11In Traversy v. Mississauga Professional Firefighters Association, Local 1212, 2009 HRTO 996, at paragraph 33, the Tribunal stated:
(…) a claim that the union violates the Code must be based on an assertion of differential treatment, and not simply a failure to act. The failure to or refusal to take forward a human rights issue such as accommodation of a disability in the workplace is not, in and of itself, a breach of the Code. There may be many reasons that have no discriminatory overtones why a union might choose not to pursue a human rights claim on behalf of an employee….There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.
12In the applicant’s submission, reference was made to discriminatory provisions in the collective agreement relating to reduction of sick leave credits and vacation credits. The applicant argued that the Union, having negotiated these provisions of the collective agreement, would be in breach of the Code. There are no factual allegations contained in the Application or in the submissions made by the applicant during the hearing on how such provisions of the collective agreement would have breached his Code rights. Absent some factual underpinning contained in the Application if taken as true, the Tribunal cannot find that the reference to provisions of the collective agreement as being discriminatory gives rise to a prima facie case of discrimination. There is nothing on the face of the collective agreement provisions themselves that leads to a finding that they are prima facia in breach of the Code.
13Accordingly, the Application is dismissed.
Dated at Toronto this 28th day of June, 2011.
”signed by”_________
Sunil Kapur
Member