Szyluk v. United Food and Commercial Workers Canada, 2011 HRTO 1675

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elzbieta Szyluk

Applicant

-and-

United Food and Commercial Workers Canada, Local 1000A

Respondent

DECISION

Adjudicator: Ken Bhattacharjee

Date: September 9, 2011

Citation: 2011 HRTO 1675

Indexed as: Szyluk v. United Food and Commercial Workers Canada

appearances BY

Elzbieta Szyluk, Applicant ) Self-represented

United Food and Commercial Workers ) Jeffrey Andrew and Andrew Canada, Local 1000A, Respondent ) MacIsaac, Counsel

INTRODUCTION

1The purpose of this Decision is to determine whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed.

BACKGROUND

2The respondent union is certified as the bargaining agent for certain employees of Power Packaging. The applicant was employed by Power Packaging, and a member of the bargaining unit represented by the respondent union. In or about 2004, she unsuccessfully applied to the Ontario Labour Relations Board to decertify the respondent union.

3Between November 2007 and August 2008, collective agreement negotiations took place between Power Packaging and the respondent union. The bargaining unit elected several employees, including the applicant, to sit on the bargaining committee.

4During the negotiations, the bargaining committee split into the two factions. The applicant and her husband led one faction, while the other faction was led by a co-worker named Ali Gure. The two factions differed on several collective agreement issues and whether or not the bargaining unit should go on strike. Mr. Gure and his faction supported going on strike, while the applicant and her faction were opposed to going on strike. The bargaining unit went on strike from June 23 to August 14, 2008.

5The applicant filed a complaint dated June 5, 2008, with the Ontario Human Rights Commission (the “Commission”), which alleged that the respondent union discriminated against her with respect to employment because of race, colour, ancestry, ethnic origin, and place of origin. The applicant is a Canadian citizen who is originally from Poland.

6Specifically, she alleged that she attended a bargaining unit meeting on March 20, 2008, where Mr. Gure made discriminatory comments about Indian employees. She further alleged that the respondent union failed to properly respond to her internal complaint about the comments.

7The applicant then elected to abandon her complaint at the Commission, and filed an Application with the Tribunal under subsection 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on September 18, 2008, with respect to the subject-matter of the complaint.

8Following a hearing, the Tribunal issued a Case Resolution Conference Decision, 2009 HRTO 902, dated June 23, 2009, which changed the social area in the Application from “employment” to “vocational associations”, and upheld the Application. The Tribunal found that Mr. Gure had made discriminatory comments about Indian employees during a bargaining unit meeting, and that the respondent union’s response to, and investigation of, the applicant’s complaint about the comments was untimely and inadequate. To remedy the discrimination, the Tribunal ordered the respondent union to pay the applicant the sum of $2,000 for her loss arising out of the infringement of the Code, and to institute mandatory human rights training of all elected stewards and management that includes training on its Discrimination Policy.

9The applicant then filed an Application under section 34 of the Code on January 5, 2010, which named the respondent union, Kevin Benn (the Executive Vice President of the respondent union) and Don Taylor (a staff representative with the respondent union) as respondents. She alleged that the respondents harassed and discriminated against her with respect to her membership in a vocational association because of her colour, place of origin and ethnic origin, and subjected her to reprisal for claiming and enforcing her rights under the Code.

10In the first paragraph of the narrative of her Application, the applicant alleged that after she filed her complaint with the Commission, she was subjected to harassment, discrimination and reprisal by Mr. Taylor, Mr. Gure, and other co-workers. However, she also repeated the allegations that were in her original complaint to the Commission. Furthermore, she included a number of new incidents that allegedly occurred between the date of the main incident mentioned in her complaint to the Commission (March 20, 2008), and the date that she filed her complaint with the Commission (June 5, 2008), but failed to explain why they were not a part of that original complaint.

11The respondents filed a Response and two Requests for an Order During Proceedings on June 9, 2010, which denied the allegations of harassment, discrimination and reprisal, requested that the Tribunal remove the individual respondents from the Application, and requested that the Tribunal dismiss the Application because it is outside the Tribunal’s jurisdiction.

12The applicant did not file a Reply to the Response or Responses to the two Requests for an Order During Proceedings.

13In an Interim Decision, 2010 HRTO 2051, the Tribunal granted the respondents’ request to remove Mr. Benn and Mr. Taylor as individual respondents to the Application, and confirmed that the allegations in the applicant’s section 34 Application that repeated the allegations that were in her complaint to the Commission and her subsection 53(3) Application are barred by subsection 53(8) of the Code.

14On October 20, 2010, the respondent union filed a Request for Summary Hearing with respect to the remainder of the applicant’s allegations. The applicant did not respond to the Request.

15On November 17, 2010, the Tribunal issued a Case Assessment Direction (“CAD”), which informed the parties that a summary hearing would be scheduled to hear submissions from the parties on whether the Application has a reasonable prospect of success. The CAD also informed the applicant that she should be prepared to address all the issues raised by the respondent union in its Request for Summary Hearing, and directed the parties to deliver to each other and file with the Tribunal copies of any further documents or cases that they intended to rely upon no later than seven days prior to the summary hearing.

16On December 10, 2010, the Tribunal issued a Notice of Summary Hearing by Conference Call to the parties, which informed them that the hearing was scheduled for February 17, 2011.

17On February 15, 2011, the respondent union filed a Book of Documents and Cases. The applicant did not file any documents or cases.

18The summary hearing took place by conference call as scheduled. I heard submissions from the applicant and the respondent union. During her submissions, the applicant confirmed that her Application was related to the incidents that occurred after she filed her complaint with the Commission.

RELEVANT RULE AND CASE LAW

19Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

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.

20Furthermore, in Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paras. 8-10:

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.

ALLEGATIONS IN THE APPLICATION

21In her Application, the applicant alleged that, after she filed her complaint with the Commission, several incidents of harassment, discrimination and reprisal occurred. The incidents may be summarized as follows:

1. From June to August 2008, in the lead up to and during the strike, and particularly at the voting site and on the picket line, she, her husband and some of her co-workers were verbally abused and threatened by Mr. Gure’s supporters, and that Mr. Taylor failed to intervene.

2. In September/October 2008, Mr. Taylor and Mr. Gure orchestrated the removal of her and her husband from the bargaining committee by prematurely holding a new election, and only informing the supporters of Mr. Gure about it. She knew about the election, but did not attend because she knew that it being held to remove her, and was scared.

3. In November 2008, notwithstanding the fact that she pays union dues, Mr. Benn refused her husband’s request to provide her with a lawyer to represent her in her first human rights proceeding against the respondent union. Mr. Taylor then failed to respond to a subsequent request from her.

4. In January 2009, after an anonymous letter was left in the lunchroom at her place of employment that was highly critical of Mr. Gure’s conduct during the strike, Mr. Gure and his supporters accused her and her co-worker of co-authoring the letter and created a hostile work environment for them.

5. In February 2009, while she was in the women’s washroom at her place of employment, three Black co-workers referred to her and her co-worker as “pigs” because of their skin colour.

6. On July 22, 2009, notwithstanding the fact that she has been a Canadian citizen since 1996, the respondent union filed a Request for Reconsideration of the Tribunal’s Decision, 2009 HRTO 902, which stated: “It is undisputed that she was not a member of the protected group to which the offending comments were directed. The evidence was that she is a white Polish immigrant….”

22However, in her Application, the applicant also stated that her problems with Mr. Gure and Mr. Taylor began before she claimed her rights under the Code:

[The bargaining committee] [m]eetings started at the end November 2007….

First couple of meetings passed in a nice atmosphere. But as soon I started bringing up the issues of rates in the QA Department… Ali Gure started abusing me number of times accusing me for being in Union Representation for my own interest…. Don Taylor never reacted to Ali Gure’s nasty comments….

Even though Ali Gure’s behaviour was becoming more and more abusive, I noticed that… Don Taylor…. was enjoying all this, smiling and laughing. There was not even single effort from him to stop that abusive behaviour…. I started feeling not safe in this room, and knew that I won’t have even a help or a witness if something serious happens, because our committee was divided into two groups…. I decided to bring recorder to the meetings for my own safety.

March 20, 2008. Ali Gure made number of discriminatory comments about one of the ethnic group and their religion….

(…)

For March 20, 2008 incident Union did not appoint independent investigator…. Don Taylor had bias against me since year 2004 when I did Application for Union Decertification on behalf of Power Packaging employees.

23In addition, she alleged that some of her co-workers accused her of being in cahoots with management:

Some of them were making hostile comments to me which first I didn’t know what they meant. For example, [B.] and [F.] inviting each other for barbeque in front of me. Later I was explained that everyone in the company talks that Plant Manager is coming to my house for barbeque. Another co-worker [A.] told me that there is a rumour that me and [my husband] got $4,000 check from Plant Manager.

24The applicant also stated that other members of the bargaining unit were not aware of the March 20, 2008 incident or her original complaint until after the Tribunal’s Decision was released on June 23, 2009:

Till now people were not aware what Ali Gure has done, because I was not discussing progress with my case with anyone. Only recently when Human Rights judgement was issued, I asked few of my co-workers to read about my case…. Few of them apologize to me after all.

25Furthermore, in section 10 of the Application (Remedy), although the applicant requested that the members of the bargaining unit receive human rights training, she also requested labour relations-related remedies, such as seven weeks of lost income as “strike pay”.

SUBMISSIONS

26In her submissions, with respect to allegations 1) to 4), the applicant simply reiterated her allegations of harassment and discrimination without specifically linking the incidents at issue to any Code grounds. The gist of her submission appeared to be that these incidents were a reprisal against her because she had filed a human rights complaint against the respondent union.

27With respect to allegation 5), the applicant admitted that the incident took place at her workplace, rather than within a union setting, but stated that this kind of incident never occurred before she filed her complaint with the Commission.

28With respect to allegation 6), the applicant simply reiterated her view that the respondent union’s written statement was discriminatory.

29Towards the end of her oral submissions, I went through the alleged incidents of harassment, discrimination and reprisal with the applicant, and asked her how she intended to prove that her Code rights were violated. She responded that she would call witnesses, but did not explain what those witnesses would say and how they would assist her in proving that her Code rights were violated.

30I then explained the meaning of harassment, discrimination and reprisal within the context of the Code, as well as the reasonable prospect of success test set out in Dabic, to which the applicant responded that Mr. Taylor was a witness to the harassment and attacks on her, but did nothing about it.

31In its submissions, the respondent union stated generally that the Application is about disputes within the bargaining unit during collective agreement negotiations and the ensuing strike, and has nothing to do with the Code. In support of this position, the respondent union pointed out that in section 10 of her Application, many of the remedies that the applicant requested are related to the labour dispute, rather than discrimination or reprisal.

32With respect to allegations 1) and 2), the respondent union stated that the applicant has not pled any facts that show a nexus between the conduct alleged and any of the Code’s prohibited grounds of discrimination. The respondent union also stated that the applicant has not pled any facts that suggest that the alleged conduct was in any way connected to the filing of her first human rights complaint, and, given the labour relations context in which the alleged conduct occurred, and the statements in her Application about her opposition to the strike, there is no reasonable prospect that she will be able to prove, on a balance of probabilities, that the alleged conduct amounted to reprisal contrary to the Code.

33With respect to allegation 3), the respondent union stated that the allegation does not have a reasonable prospect of success because the applicant has not pled any facts that show that it has an obligation to cover, or a practice of covering, the legal expenses of a member who is filing a complaint against it.

34With respect to allegation 4), the respondent union stated that the applicant has not pled any facts that show a nexus between the letter and any of the grounds in the Code, or explained how the events described are linked to her attempt to claim or enforce her rights under the Code.

35With respect to allegation 5), the respondent union stated that the alleged conduct relates to interactions with her co-workers in the workplace, and not her membership in the respondent union.

36With respect to allegation 6), the respondent union stated that its Request for Reconsideration of the Tribunal’s Decision is covered by the absolute privilege that applies to pleadings, which prevents them from forming the basis for a cause of action. The respondent union also stated that the reference to the applicant being a “white Polish immigrant” related solely to the legal argument that she did not have standing to claim discrimination against her when she was not a member of the group (Indian employees) that was targeted in Mr. Gure’s comments.

ANALYSIS AND DECISION

37I find that there is no reasonable prospect that the Application will succeed.

38The Application relates to sections 6, 8 and 9 of the Code, which provide:

6. Every person has a right to equal treatment with respect to membership in any trade union... without discrimination because of… place of origin, colour, [and] ethnic origin….

7. 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.

8. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

39The 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 an intention by a respondent to commit a reprisal for asserting one’s Code rights. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17.

40In Noble v. York University, 2010 HRTO 878, the Tribunal held at para. 33 that in an Application alleging reprisal, the following elements must be established:

a) An action taken against, or threat made to, the applicant;

b) The alleged action or threat is related to the applicant having claimed, or attempted to enforce a right under the Code; and

c) An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

41I will start by considering the applicant’s allegations of harassment and discrimination. With respect to allegations 1) to 4), the applicant made general allegations of harassment and discrimination, but did not link any of the allegations to her place of origin, colour or ethnic origin. Accordingly, even if all these general allegations of harassment and discrimination are true, they cannot be reasonably considered to amount to a Code violation.

42With respect to allegation 5), the applicant alleged that three of her co-workers made harassing or discriminatory comments to her in the workplace that were linked to her colour, but she did not link the allegation to her membership in a trade union. Accordingly, even if this allegation of harassment and discrimination is true, it cannot be reasonably considered to amount to a Code violation by the respondent union.

43With respect to allegation 6), the applicant alleged that the respondent union made a harassing or discriminatory comment about her in its Request for Reconsideration of the Tribunal’s Decision of her first Application that was linked to her place of origin, colour and ethnic origin; however, this Tribunal has recognized that absolute privilege extends to statements and written submissions made in administrative law proceedings that are the equivalent of pleadings. See Carlos v. 1174364 Ontario Ltd., 2009 HRTO 311, and Dixon v. Morrison, 2010 HRTO 2156. Given that a Request for Reconsideration is the equivalent of a pleading, this allegation of harassment or discrimination cannot be reasonably considered to amount to a Code violation.

44I will now turn to the applicant’s allegations of reprisal. As I understand it, her main submission was that most, if not all, of the incidents listed in her Application were a reprisal against her because she had filed a human rights complaint against the respondent union. However, aside from a general statement that she intended to call witnesses to support her allegations, she did not demonstrate that she has evidence, or will be able to obtain evidence, that can show that an intention on the part of the respondent union to retaliate against her for claiming or attempting to enforce her rights under the Code.

45In my view, this, coupled with the context in which these alleged incidents occurred (there was a serious, non-Code-related, labour relations conflict between the applicant and Mr. Taylor, Mr. Gure and other members of the bargaining unit, which both preceded and proceeded the applicant’s claiming of her rights under the Code), as well as the applicant’s admission that other members of the bargaining unit were not aware of her original human rights complaint until after the alleged incidents involving them occurred, means there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that the respondent union intended to retaliate against her for claiming or attempting to enforce her rights under the Code.

ORDER

46The Application is dismissed.