Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeffrey Forde Applicant

-and-

Elementary Teachers’ Federation of Ontario, Jim White, Mary Bricco, Merlin Leis, and Victoria Reaume Respondents

DECISION

Adjudicator: David A. Wright Date: July 25, 2011 Citation: 2011 HRTO 1389 Indexed as: Forde v. Elementary Teachers’ Federation of Ontario

APPEARANCES

Jeffrey Forde, Applicant (Self-represented)

Elementary Teachers’ Federation of Ontario, Jim White, Mary Bricco and Merlin Leis, Respondents (Stephanie Hobbs, Counsel)

Victoria Reaume, Respondent (Raj Anand and Mark Edelstein, Counsel)

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the ”Code”), filed on March 22, 2010. The applicant alleges that the respondents discriminated against him in respect of employment because of disability, creed and association with a person identified by a prohibited ground. He also alleges that they committed reprisals under s. 8 of the Code. The applicant is a former teacher with the Avon Maitland District School Board (the “Board”). The respondent Elementary Teachers’ Federation of Ontario (“ETFO”) is his former bargaining agent. The respondents Jim White, Mary Bricco and Merlin Leis are ETFO representatives. The respondent Victoria Reaume is a lawyer hired by ETFO to represent the applicant in proceedings at the Ontario College of Teachers.

PROCEDURAL BACKGROUND

2The Application was delivered to the respondents on June 21, 2010. On July 26, 2010, the respondents ETFO, Jim White, Mary Bricco and Merlin Leis (‘the ETFO respondents”) filed a Request for Summary Hearing, asking that the Application be dismissed pursuant to s. 45.1 of the Code, on the basis that the applicant’s three previous Applications to the Ontario Labour Relations Board (“OLRB”) had appropriately dealt with the substance of the Application or, in the alternative, on the basis that the Application failed to establish a prima facie case against the ETFO respondents. The respondent Ms. Reaume filed a Request for Order During Proceedings under Form 10, asking for her removal as a respondent, and/or dismissal of the Application against her, on the basis that she was counsel to ETFO at all material times and accordingly not in a service relationship with the applicant. The applicant responded to both of these requests.

3By Case Assessment Direction dated August 20, 2010, the Tribunal directed that a summary hearing be held under Rule 19A. Rules 19A.1 and 19A.2 read as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

4The Case Assessment Direction pointed out those rules and explained:

The applicant shall be prepared to explain how, if true, his allegations constitute discrimination or reprisal within the meaning of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, and how there is a reasonable prospect that he can prove them on a balance of probabilities. He shall also be prepared to address all of the issues raised by the respondents in the Requests they have filed with the Tribunal.

5On September 10, 2010, the applicant filed a Request for Order During Proceedings asking the Tribunal to defer the Application pending the resolution of a complaint against Ms. Reaume to the Law Society of Upper Canada (“LSUC”), asking for an order of the Tribunal that the applicant be provided with a pro bono lawyer by the Human Rights Legal Support Centre (“HRLSC”), and asking for production of various collective agreements. The request for legal representation results from the fact that counsel for Ms. Reaume was previously the Chair of the HRLSC, and the applicant suggests that the HRLSC is not providing him with legal representation because of his retainer for this respondent.

6On March 22, 2011, the applicant filed further written submissions and a further Request for Order During Proceedings seeking to add two more individual respondents. He also sought an order that the Tribunal provide notice of the proceeding to the Ontario Human Rights Commission (“Commission”) pursuant to Rule 1.7 (f).

7The summary hearing was held on March 30, 2011. The applicant made extensive submissions. In a letter to the Tribunal dated April 1, 2011, the applicant stated in relevant part as follows:

Finally, I am stating for the record my understanding that the Summary Hearing of March 30, 2011 in HRTO File 2010-05176-I was a hearing to allow me to explain how my claims, if true, were applicable to the jurisdiction of the Tribunal; prima facia [sic]. I did not prepare to “prove” my case. Rather, I prepared to show how my application did not match the objections of the Respondents and also how it matched the requirement of an application appropriate to be heard at the HRTO. I have not had it confirmed that the adjudicator at the Tribunal will rely on my written documentation which I believe is sufficient for proving my case as one meeting prima facia [sic].

I am requesting all processes in the above matters to be put on hold until such time as the issue of my complaint to the Human Rights Legal Support Centre and Ontario Government are resolved as I am being denied my Right to a Service from the Centre as an Applicant in these proceedings where I have a Disability and medical need for assistance. I become medically incapacitated by these matters being without assistance and am unable to mitigate my financial losses or maintain daily activities of living while they remain outstanding.

8On April 6, 2011, the applicant filed an application against the Ontario government and the HRLSC regarding its failure to represent him. By Case Assessment Direction dated July 14, 2011, the Tribunal directed that a summary hearing be held in that application.

DECISION

9The applicant’s various Requests for Order have no merit. Having reviewed all of the written materials filed by the applicant and heard his oral submissions, I find that the Application has no reasonable prospect of success. The Application is therefore dismissed.

ANALYSIS

Applicant’s Requests for Order

10The HRLSC does not represent all applicants before the Tribunal. Indeed, in my experience it generally does not represent applicants at summary hearings. Decisions about who it will represent are within its discretion, and the Tribunal does not have the power to make an order that it provide legal representation. There is no justification for the applicant’s request in this regard.

11As for the applicant’s request to add further respondents, the individuals proposed were representatives for ETFO. As, for the reasons below, the Application has no reasonable prospect of success against the ETFO respondents, there is no reason to add further individual representatives.

12There is no need to give the Commission notice of the Application under Rule 1.7(f) as the Commission receives notice of all applications filed with the Tribunal.

13In the circumstances of this case, it would not be appropriate to defer the case pending the LSUC’s investigation or the applicant’s complaint to the Human Rights Legal Support Centre. The determination of whether an application should be deferred under Rule 14.1 of the Tribunal’s Rules of Procedure is a discretionary determination. Given that it is apparent that the Application has no reasonable prospect of success, that the applicant made these requests after the summary hearing had been ordered, and that there are various individual respondents who are facing proceedings against them that it appears are unmeritorious, I decline to exercise my discretion to defer the Application.

14While it may have been helpful for the respondents to provide the applicant with collective agreements, the content of the collective agreements has no relevance to the matters at issue on the summary hearing and there is no reason for them to be disclosed prior to determining whether the Application has a reasonable prospect of success.

Reasonable Prospect of Success: General Principles

15I address next the question of whether the Application has a reasonable prospect of success. The approach on a summary hearing was set out in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 7-10:

A summary hearing is generally ordered at an early stage in the process. In some cases, the respondent may not have been required to provide a response. In others, the respondent may have responded but disclosure of all arguably relevant documents and the preparation of witness statements, which generally occur following the Notice of Hearing, will not yet have happened.

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

16Based on the Application, the relevant provisions of the Code are as follows:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

9. A right under Part I is infringed where the discrimination is because of relationship, association or dealings with a person or persons identified by a prohibited ground of discrimination.

17The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one’s Code rights.

18The applicant has referred to the concept of prima facie discrimination. In my view, this concept is not helpful in interpreting the Tribunal’s summary hearing rule. In human rights law, prima facie discrimination has been used to mean various things. In some contexts – for example Ontario Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 and Jagait v. IN TECH Risk Management, 2009 HRTO 779 -- the term is used to refer to what claimant must show to avoid having a claim dismissed without requiring a respondent to call evidence. In others – for example Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1024 -- it refers to whether, assuming the allegations to be true, there is discrimination. In yet others – for example Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 (C.A.) – it refers to what is required for a claimant to demonstrate discrimination within the meaning of the Code. In my view, it is much more helpful and understandable to parties to simply speak in the summary hearing context about whether there is a reasonable prospect the application will succeed as set out in Dabic. Accordingly, whether there is a reasonable prospect the applicant can prove a violation of the Code is the issue that was explained in the Case Assessment Direction and on the telephone during the summary hearing.

Application against Victoria Reaume

19I address first the Application against Ms. Reaume. Ms. Reaume was retained by ETFO to represent the applicant in a complaint against him at the Ontario College of Teachers. The applicant alleges that she was in a conflict of interest, was negligent, withheld information, provided improper advice, was unethical, and made errors in representing him. None of these issues are within the Tribunal’s power to decide; the Tribunal’s role is to adjudicate claims of discrimination, not professional negligence. The applicant does suggest that the lawyer’s actions were affected by his disability or by her belief that he was standing up for the human rights of his students. However, these are merely bald allegations. Moreover, even if Ms. Reaume committed the acts alleged above, there is no reasonable prospect that the applicant can demonstrate a link between them and his disability. Reprisal under s. 8 of the Code requires an applicant to prove intent by the respondent (Noble v. York University, 2010 HRTO 878). There is nothing other than the applicant’s allegation that gives any reason to suggest that Ms. Reaume took the actions she did because of an intent to reprise against the applicant for asserting anyone’s human rights. As the Application against Ms. Reaume has no reasonable prospect of success, it is dismissed and there is no need to consider her other arguments.

Application against the ETFO Respondents

20I turn now to the claims against ETFO and the other individual respondents. In considering these claims, I note the established principles about the liability of unions for violations of the Code. In Traversy v. Mississauga Firefighters’ Association, 2009 HRTO 996, the Tribunal stated as follows at para. 33:

Assuming that the Code also applies to this aspect of a union’s relationship with the employees it represents, 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 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: see Baylet v. Universal Workers Union, 2009 HRTO 700. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.

See also Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 at paras. 16-18.

21As against the ETFO respondents, the applicant makes various allegations about what he says is improper or insufficient representation or a failure to proceed with or file grievances. He states that ETFO directed him to cooperate in what the applicant viewed as infringements of the Code by the Board. He alleges that Mr. Leis told him, on being served with the first OLRB duty of fair representation application and without even reading it, that if he did not withdraw it “it would stop all that the Union was trying to do” and he would lose ETFO’s support on his grievance. He states that the respondents were “aware of the harm they were inflicting on my health in their conspiracy to have me separated from my career”. He alleges that the respondents supported the employer in making numerous improper decisions about his employment.

22The bulk of these are not allegations of discrimination or reprisal by the ETFO respondents within the meaning of the Code. Alleged improper representation on a human rights grievance is not a violation of the Code. Merely because an action has a consequence on a person’s health, it is not discrimination on the basis of disability. Merely because an action relates to disagreement about the treatment of disabled students in a school or their teacher, it is not a violation of s. 8 or s. 12 of the Code. The applicant points to no evidence or reason to believe, other than a bald allegation and his disagreement with advice he was given by the union’s representatives, that any of the union’s actions or alleged failures to act were based on discriminatory factors.

23The applicant also alleges reprisal, but what he alleges was said was in response to being served with an OLRB application Mr. Leis had not read. Reprisal under s. 8 of the Code must be a reprisal for the assertion of human rights and there must be an intention to reprise for that reason. On the facts as alleged by the applicant and in the context, in which Mr. Leis knew only that he had been served with an OLRB application, there is no reasonable prospect that Mr. Leis could be found to have intended to reprise against the applicant for asserting his human rights.

24Accordingly, I find that this Application has no reasonable prospect of success.

ORDER

25The Application is dismissed.