Gungor v. C.A.W., Local 88 (No. 5)

T-0649-08

2011-09-27

2011 HRTO 1760

Ontario Human Rights Tribunal

CHRR Doc. 11-2260

Yavuz Gungor

Applicant

v.

Canadian Auto Workers, Local 88

Respondent

and

General Motors of Canada Limited

Intervener

Date of Decision: September 27, 2011

Before: Human Rights Tribunal of Ontario, Mark Hart

File No.: T-0649-08

Appearances by:

Cynthia Mackenzie, Counsel for the Applicant

Keith Osborne, on behalf of the Respondent

Daniel McDonald, Counsel for the Intervener

TRADE UNIONS — union supports discriminatory policy — grievance process — union fails to support process — union as respondent — LIABILITY — liability of union — REASONABLE ACCOMMODATION — union's duty to accommodate

HUMAN RIGHTS TRIBUNALS — role of tribunal — JURISDICTION — court of competent jurisdiction to rule on fair representation issue — INTERPRETATION OF STATUTES — case law as aid to interpretation

Summary: The Human Rights Tribunal of Ontario dismissed a complaint against the Canadian Auto Workers, Local 88 ("CAW"). The complaint was filed by Yavuz Gungor, who alleged that his union discriminated against him with respect to employment because of his disability. A complaint against his employer, General Motors of Canada Ltd., was settled.

Mr. Gungor has been employed by CAMI Automotive Inc. and General Motors of Canada Ltd. for almost 21 years in a variety of positions, including as a Team Leader in the Assembly Department. In the early 1990s, he suffered a work-related injury to his back which resulted in permanent medical restrictions requiring no repetitive bending or stooping and no prolonged walking or ladder climbing. He later sustained a work-related injury to his shoulder which initially restricted him from repetitive overhead work, and from any lifting greater than 20 pounds. As of October 2004, these restrictions were re-assessed, and he was only restricted from overhead work.

In January 2005, a large number of new jobs were posted, and Mr. Gungor applied for over 25 Team Leader positions. On all but two of the postings, Mr. Gungor was not the most senior applicant. However, an applicant with less seniority was chosen for Team Leader –Weld Alignment, a job which Mr. Gungor believed that he was capable of performing. Mr. Gungor protested the appointment of a person with less seniority, but the employer refused to change its mind on the grounds that Mr. Gungor needed to do 100 percent of the job and his restrictions would not permit him to do that. Mr. Gungor believed that he could do the job, should be given a trial, and should be accommodated.

The complaint before the Tribunal is that Mr. Gungor's union did not support a grievance on his behalf against the employer, and condoned management's breach of its duty to accommodate. Mr. Gungor also complained that union officials made discriminatory remarks about his disability, including commenting that "he was lucky to have a job". He appealed the denial of his grievance to his local membership and lost. He then wrote to CAW National to ask for reconsideration. But reconsideration was refused when the union learned that he had filed a complaint against the union.

Subsequently, Mr. Gungor was asked to relieve in the Weld Repair position and worked in this position off and on from 2005 to 2008 without problems. In May 2008, he was placed on the Weld Repair team on a medical trial. He continued in this position until he became a Weld Check Team Leader in 2010.

The Tribunal found that following the Supreme Court of Canada's decision in Renaud union liability for a failure of accommodation can arise in two ways: (1) if the union participated in the formulation of the work rule which has a discriminatory effect; and (2) if the union impedes the reasonable efforts of an employer to accommodate. In this case, there was no provision in the collective agreement between the union and the employer that had a discriminatory effect on Mr. Gungor, and no evidence that the union participated in the formulation of a work rule that discriminated against him. It was the employer who apparently assumed that Mr. Gungor must be able to perform 100 percent of the job duties of all members of the team. Even if the union accepted this, and did not challenge it, that is not the same as having participated in the formulation of the rule.

Nor did the union impede or block the employer's reasonable efforts to accommodate Mr. Gungor. No efforts were made to accommodate him. As no efforts were made, there was nothing for the union to block or impede.

The Tribunal also considered whether the union breached s. 6, which prohibits discrimination with respect to union membership. It determined that a union's alleged inadequacy in its representation of a member on a human rights issue is not a sufficient basis by itself to support a finding of union liability under s. 6. In the absence of evidence that a union's action or inaction was based on a discriminatory factor, a union's failure to file or pursue a grievance is not in itself discriminatory; nor is a union's failure to advocate on the member's behalf, or to assist a member in addressing discrimination or to contest the employer's actions. This kind of conduct may or may not provide a basis for a complaint that the duty of fair representation was breached under s. 74 of the Labour Relations Act. However, it is not Human Rights Tribunal's jurisdiction to determine that.

The Tribunal dismissed the complaint.

See also (No. 1) (2009), CHRR Doc. 09-1672, 2009 HRTO 1226; (No. 2) (2009), CHRR Doc. 09-2147, 2009 HRTO 1611 and (No. 4) (2010), CHRR Doc. 10-2359, 2010 HRTO 1709.

CASES CITED

Arias v. Centre for Spanish Speaking Peoples (No. 2) (2009), CHRR Doc. 09-1434, 2009 HRTO 1025: 43

Baylet v. Dan Benedict Co-op Homes (No. 2) (2009), CHRR Doc. 09-0949, 2009 HRTO 700: 45

Bingley (Re), [2004] C.I.R.B.D. No. 32 (QL): 48, 57

Boyd v. Toronto (City) (No. 1) (2010), CHRR Doc. 10-0725, 2010 HRTO 607: 46

Bubb-Clarke v. Toronto Transit Comm. (No. 3) (2002), 42 C.H.R.R. D/326, 2002 CanLII 46503 (Ont. Bd.Inq.): 39

Canada Safeway Ltd. v. Alberta (Human Rights and Citizenship Comm.) (2003), 2003 ABCA 246, 21 Alta. L.R. (4th) 261, 47 C.H.R.R. D/220, 2003 ABCA 246: 31

Central Okanagan School Dist. No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970, 16 C.H.R.R. D/425: 28, 35, 41, 57

Gungor v. C.A.W., Local 88 (No. 3) (2010), CHRR Doc. 10-1088, 2010 HRTO 912: 2

I.L.W., Local 400 v. Oster (No. 2) (2000), 2000 CanLII 49338 (CHRT), 38 C.H.R.R. D/124, [2000] C.H.R.D. No. 3 (QL): 59

I.L.W., Local 400 v. Oster, 2001 FCT 1115, [2002] 2 F.C. 430, 42 C.H.R.R. D/1, 2001 FCT 1115: 59

Traversy v. Mississauga Professional Firefighters Assn., Local 1212 (No. 1) (2009), CHRR Doc. 09-1405, 2009 HRTO 996: 43

LEGISLATION CITED

Canada

Canada Labour Code, R.S.C. 1985, c. L-2, s. 37: 48

Ontario

Human Rights Code, R.S.O. 1990, c. H.19

s. 3: 2, 27

s. 5: 2, 27, 41, 58, 63

s. 6: 27, 43, 58, 65, 73

s. 9: 2

s. 23(4): 63

s. 53(3): 1

Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, s. 74: 47

Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 11: 6

1This is an application filed under s. 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. The underlying complaint was filed with the Ontario Human Rights Commission (the "Commission") on April 1, 2005.

2The applicant alleges that he experienced discrimination with respect to employment and contract because of his disability contrary to ss. 3, 5 and 9 of the Code, arising out of his failure to be placed in a Team Leader position in late January 2005. A companion complaint filed against the applicant's employer, then CAMI Automotive Inc. ("CAMI") and since taken over by General Motors of Canada Limited ("GMC"), was settled in May 2008. By interim decision dated April 27, 2010 (2010 HRTO 912 [CHRR Doc. 10-1088]), it was determined that the settlement of the complaint as against the applicant's employer did not preclude him from proceeding with his complaint as against the Canadian Auto Workers Local 88 ("CAW" or the "union").

3The case resolution conference (hearing) in this matter was held on March 23 and April 26, 2011, in accordance with the expectation, expressed in the Code and the Tribunal's Rules of Procedure for Transitional Applications, that s. 53(3) applications proceed in a highly expeditious manner. I heard from the applicant and two witnesses called on his behalf: Jeff Schmidt, an employee of GMC who had worked in the Team Leader role, and Keith Fishwick, who also is employed by GMC and who was the Placement Coordinator at the relevant time from January to May 2005. For the respondent union, I heard from Deb Graves, who was the union's human rights and medical placement representative at the material time; Mike Van Boekel, who was the union's committee person for Weld Shop — A Shift at the material time; and John Scanlon, a CAW National union service representative.

REQUEST TO INTERVENE BY GMC

4Shortly before the commencement of the hearing in this matter, GMC filed a request for order seeking leave to intervene. Submissions regarding this request were heard orally at the start of the hearing.

5The applicant objected on the basis that the employer previously had been given notice of this proceeding as an interested party and had been asked by this Tribunal whether it intended to intervene, and had indicated that it did not. While conceding this, counsel for GMC stated circumstances changed as a result of the service of a summons on Mr. Fishwick as a GMC employee and representative of management and the request for disclosure of employer documents contained in the summons.

6I ruled orally that I would allow GMC to intervene on the basis that GMC would have no opportunity to call evidence or question witnesses, could raise objections only as they directly affected GMC's interests, and was restricted to making submissions only on issues that directly affected GMC's interests. In accordance with s. 11 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, I also allowed GMC's participation to advise Mr. Fishwick as to his rights as a witness in this proceeding.

REVIEW OF EVIDENCE

7The applicant has been employed (formerly by CAMI and now by GMC) for almost 21 years in a variety of positions, including as a Team Leader in the Assembly Department. In the early 1990s, the applicant suffered a work-related injury to his back which resulted in permanent medical restrictions requiring no repetitive bending or stooping and no prolonged walking or ladder climbing. The applicant subsequently sustained a work-related injury to his shoulder which initially restricted him from repetitive overhead work, pushing or pulling against resistance, and from any lifting greater than 20 pounds. As of October 2004, these restrictions were re-assessed and the applicant was found to be capable of completing work activities involving occasional handling of loads between 5 and 10 kilograms. The applicant remained restricted from overhead work and pushing or pulling against resistance.

8At the relevant time, the applicant was working as part of the Spider team. CAMI decided to contract out the Spider job and the Spider line was in the process of being discontinued. At the same time, CAMI was awarded a contract for a new vehicle, the Torrent. This resulted in the start-up of a new line to build the Torrent vehicle. Postings went up in January 2005 for a large number of positions involved in the new Torrent line. The posted positions included a large number of Team Leader positions.

9The applicant states that he applied for over 25 of these Team Leader positions. Under the collective agreement, the senior eligible applicant for a posting is to be selected for the position from among those having the abilities to perform the work to be done. On all but two of the postings, the applicant was not the most senior applicant. One of the postings where an applicant with less seniority was selected was for Team Leader — Weld Alignment. In his evidence before me, the applicant acknowledged that this was a very stressful job and that he "shouldn't be doing a job like that". The awarding of this position to a junior applicant was not contested on the evidence before me.

10The other position for which a junior applicant was chosen was for Team Leader — Weld Repair. The evidence before me indicates that the decision about the selection of the successful applicant for a job posting is made solely by the employer without union involvement. The decision regarding the Team Leader — Weld Repair position was made by Mr. Fishwick, the employer's Placement Coordinator at the relevant time. Mr. Fishwick's evidence is that on or about January 28, 2005, he reviewed the applicant's medical restrictions in relation to the Team Leader — Weld Repair position and determined that this position was beyond the applicant's physical abilities. In particular, Mr. Fishwick's notes from the relevant time indicate that the Weld Repair — Team Leader position required overhead work and the removal and installation of body panels greater than 20 pounds, duties which were contrary to the applicant's restrictions. The applicant disputes that these are essential duties of the Team Leader position and also contends that he could perform such duties with accommodation.

11When the successful applicants for the posted Team Leader positions went up, the applicant discovered that the Team Leader — Weld Repair position had been awarded to someone with less seniority. While the applicant gave evidence before me regarding a brief discussion about this issue that he had with his union committee person, Mr. Van Boekel, no allegation regarding this discussion was raised either in the applicant's complaint or in his statement of additional facts. Accordingly, I will not consider this evidence further.

12On February 1, 2005, the applicant contacted Ms. Graves, the union's human rights and medical placement representative, about his failure to be awarded this position. He subsequently met with her the next day. The applicant expressed his view that he was medically capable of performing the duties of the Team Leader — Weld Repair position. While Ms. Graves expressed concern about whether the applicant's medical restrictions would enable him to do the job, she informed him that it was not her that he needed to convince, but the employer's Placement Coordinator, Mr. Fishwick. As a result, Ms. Graves contacted Mr. Fishwick and he was called into the meeting with the applicant.

13Ms. Graves' notes of the meeting involving herself, Mr. Fishwick and the applicant on February 2, 2005, indicate that the applicant informed Mr. Fishwick that he could perform the duties of the position and asked why he hadn't been given it. A discussion ensued about the duties of the position and whether the applicant could perform these duties within his restrictions. The upshot of the meeting was that Mr. Fishwick agreed to go down to the Weld Repair shop with Ms. Graves the following day to re-evaluate the job.

14The Weld Repair shop deals with the "white body" or exterior of the vehicle after the component parts have been welded together. The vehicle body comes down a line and the welds are reviewed by two Check persons, one on the left and one on the right, who record on a computer the repairs that need to be made. The vehicle body then passes to two Weld Repair persons, again one on the right and one on the left, who perform the necessary repairs. This can include buffing, grinding or chiselling to remove weld spatter or burrs or the replacement of missing or stripped bolts. If any necessary repairs cannot be completed as the vehicle body is moving down the line, the vehicle body is taken off-line for the repairs to be completed. This is done by a lifter, which lifts the vehicle body off the line and places it on a cart that can then be pulled off into the off-line repair area. The Weld Repair Team Leader and one additional Production Associate are stationed in the off-line repair area to pull the vehicle bodies into the area after they have been lifted off-line and to deal with such repairs. Typical tasks performed for off-line repairs include such things as buffing or grinding of weld spatter or burrs on high spots on the vehicle body that can't easily be reached on line, pushing out dents, installing missing parts, replacing bolts, or occasionally fixing bad welds. The Team Leader also is responsible for ensuring that Weld Repair persons are relieved when they are on break, which can include the necessity for the Team Leader to work on the line.

15Ms. Graves' evidence is that she and Mr. Fishwick went down to the Weld Repair shop to evaluate the Team Leader position on February 3, 2005. While Mr. Fishwick does not currently have a specific recollection of this, he has notes dated February 3, 2005, which include a list of the position duties. Mr. Fishwick's conclusion as a result of this evaluation remained that the applicant was medically unable to perform the duties of the Team Leader position.

16On February 23, 2005, the applicant wrote a letter to a Mr. Nunn, who was a Senior Specialist, Benefits & Claims with CAMI, to state that he could perform the essential duties of the Weld Repair — Team Leader position and that the failure to award him this position was discrimination because of his disabilities and contrary to the Code. In this letter, the applicant states that he was told by Mr. Fishwick that he had not been awarded the position because he could not perform 100 percent of the work on the team. He also states that he was not given a work trial or the ability to observe the work to be done. He states that he was advised by Mr. Fishwick that the company did not allow for work trials in relation to postings. The applicant requested that he be awarded the Team Leader position or be afforded a work trial.

17Mr. Nunn responded to the applicant by letter dated March 14, 2005. In this letter, Mr. Nunn states that he had contacted Mr. Fishwick and that the applicant had not been granted the Team Leader position because there were elements of the position that violated his medical restrictions. Mr. Nunn accordingly expressed the company's position that there had been no violation of the Code.

18In the meantime, the applicant met with Ms. Graves again on March 7, 2005. At this meeting, Ms. Graves informed the applicant that the union would not be supporting him in his complaint to the company. The applicant states that the discussion became quite heated. Ms. Graves' evidence is that the applicant was upset and became quite heated at this meeting, but that she tried to remain calm. At this meeting, the applicant challenged the requirement that, in order to be successful on a posting, he needed to be able to do 100 percent of the job. In this context, Ms. Graves' notes record that she said to him that if he was given the job but didn't have the ability to do the job and someone else was required to do it for him, then why was he getting paid the $1 per hour premium for being a Team Leader and why shouldn't the other employee who was doing the work get paid.

19The applicant also states that during this meeting, Ms. Graves told him that he was lucky to have a job at all given his medical restrictions. Ms. Graves denies that she said this. Ms. Graves was previously involved in the medical placement process for the applicant when the company and the union were trying to find a position that the applicant could perform within his restrictions, and she acknowledges that she said to the applicant at the March 7, 2005, meeting that at one point the applicant was so restricted that there was almost nothing that he could do.

20The applicant requested that the union put in writing that it would not support him in his complaint to the employer, which the union did by letter dated March 7, 2005, and signed by Ms. Graves and Kevin Brooke, the union's Plant Chairperson. In this letter, it is stated that Ms. Graves and Mr. Brooke had reviewed the applicant's complaint dated February 23, 2005 (by which they are referring to his letter to Mr. Nunn of that date), in the context of the collective agreement and the Code and expressed their view that there had been no violation of the agreement or the Code.

21On March 29, 2005, the applicant wrote a letter to Alex Keeney, a CAW National Representative, appealing the union's failure to represent him in advancing a grievance against the employer arising out of his February 23, 2005, complaint. The applicant states in this letter that he has the abilities to do the Team Leader job despite the fact that he is a disabled worker, and that if accommodations were required to enable him to perform 100 percent of the duties of this position, then any such accommodations would be minor. He states in this letter that the employer and the union do not recognize any duty to accommodate disabled workers who successfully post for a leadership position. The applicant expresses his view that the local union views him as a "thorn in its side" and had warned him that he should consider himself lucky to have a job at all. He states that the union is actively condoning management's breach of the Code. The applicant requested a response within two weeks, failing which he indicated that he would take the matter to the Ontario Labour Relations Board.

22Mr. Keeney replied by letter dated April 9, 2005, to inform the applicant that pursuant to art. 24 of the CAW Constitution, his first level of appeal was to the membership of the Local. The applicant states that he was unaware of the appeal procedure under the CAW Constitution and was unsure as to how to proceed, and so he raised the issue with his Local President. The Local President explained to the applicant how he needed to proceed, which involved presenting a motion to reinstate his grievance or complaint at a Local membership meeting.

23He did so at a Local membership meeting on April 24, 2005. At the hearing, the applicant gave evidence as to certain statements and comments alleged to have been made at this meeting, to which the respondent objected. I ruled in favour of the objection, on the basis that no allegation relating to specific statements or comments made at the membership meeting had been raised by the applicant in his complaint or in his statement of additional facts.

24The motion before the Local membership was not successful. As a result, on April 24, 2005, the applicant wrote again to Mr. Keeney to ask that CAW National re-consider his art. 24 appeal as originally requested. Mr. Keeney initially responded by letter dated May 2, 2005, to state that he was in the process of gathering information regarding the applicant's appeal. However, by letter dated June 24, 2005, the applicant was advised by Mr. Keeney that it had been brought to his attention that the applicant had filed a complaint with the Commission against the union. As indicated above, the applicant's complaint against the union had been filed with the Commission on April 1, 2005. Mr. Keeney cited art. 24, s. 1 of the CAW Constitution, which states that an appealing member has the duty to use every method of appeal outlined in the Constitution before seeking a remedy by going to a civil court or government agency. It was stated that as the applicant had elected to go to an outside agency, Mr. Keeney would take no further action on the applicant's appeal and would be closing the file. Mr. Keeney provided his phone number if the applicant had any questions. The applicant did not attempt to contact Mr. Keeney, as he viewed Mr. Keeney's letter as being very clear that no further action would be taken.

25Subsequently, in August 2005, the applicant was asked by a CAMI supervisor to relieve in the Weld Repair position. When the applicant responded that he had been informed that this position was beyond his medical restrictions, he states that the supervisor told him to try the position out, which he did. The applicant's evidence is that he worked in this position off and on from 2005 to 2008 without experiencing any disability-related problems. In May 2008, the applicant was placed on the Weld Repair team on a medical trial, which he successfully completed in July 2008. The applicant continued in this position until he became a Weld Check Team Leader in 2010.

LEGAL PRINCIPLES RE UNION LIABILITY

26This is not a case alleging that the employer discriminated against the applicant because of his disability or failed to properly accommodate his disability-related needs. That case was settled to the satisfaction of the applicant and the employer. Rather, this is a case alleging that the union violated the Code arising out of its actions or omissions in relation to the applicant not being awarded the Team Leader — Weld Repair position.

27It is significant to note that the application against the union alleges discrimination both "with respect to employment" under s. 5 of the Code and in relation to the "right to contract" under s. 3 of the Code. While the applicant has cited the provision relating to "contract", when dealing with potential union liability the more applicable provision is s. 6 of the Code, which addresses discrimination with respect to membership in a trade union. For the purpose of this decision, I will consider the applicant's allegations regarding discrimination in relation to the right to contract under s. 3 of the Code as being more appropriately addressed as an allegation of union liability pursuant to s. 6 of the Code.

28Under the Code, it is important to distinguish between a union's obligations and potential liability with respect to employment under s. 5 of the Code and the union's potential liability for discrimination in relation to a person's membership in the union under s. 6 of the Code. As will be discussed below, the principles emanating from the Supreme Court of Canada's decision in Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 [16 C.H.R.R. D/425] ("Renaud"), pertain to a union's potential liability "with respect to employment" arising out of the duty to accommodate, which addresses the potential liability of the respondent in the case before me pursuant to s. 5 of the Code. This Tribunal also has developed a considerable body of jurisprudence regarding when a union will be found liable with respect to a person's membership in the union pursuant to s. 6 of the Code, which also will be addressed below.

a. Union Liability with Respect to Employment under Section 5 of the Code

29The leading case regarding a union's obligations and potential liability with respect to employment pursuant to the duty to accommodate under the Code is the Supreme Court of Canada's decision in Renaud. It is important to note that in Renaud, the Court imposed liability on the union in relation to the provision in British Columbia's human rights legislation dealing with discrimination "with respect to employment", and expressly held that a separate provision in that legislation dealing with discrimination against a member of the union had no application to the circumstances of that case (see § 50).

30In the Renaud decision, the Court held that a union which causes or contributes to a discriminatory effect on an employee because of a ground protected under human rights legislation incurs liability "with respect to employment" (see § 32). However, the Court states that the union's obligations with respect to employment arising out of duty to accommodate only arise if the union is a party to discrimination and that the union may become a party in two ways (see § 35 — emphasis added).

31The first way that a union may become a party to discrimination is "by participating in the formulation of the work rule that has the discriminatory effect on the complainant" (see § 36). An example of this was stated by the Court to be where the discriminatory rule is a provision in the collective agreement. In my view, one of the cases cited by the applicant before me, namely United Food and Commercial Workers, Local 401 v. Alberta Human Rights and Citizenship Comm. (2003), 21 Alta. L.R. (4th) 261, 2003 ABCA 246 [47 C.H.R.R. D/220], is an example of how a union can be held liable under this first branch of the Renaud decision. In the UFCW case, the union and the employer had re-opened the collective agreement to negotiate an employee buyout program to lower the employer's labour costs. There was a restriction in the agreement that employees eligible for the buyout must have worked for the employer within the previous 52 weeks. This was found to be discriminatory in relation to a group of employees who were excluded because they had been unable to work during this period for disability-related reasons. The union was held jointly liable with the employer because it had participated in the negotiation of the discriminatory provision and because it failed to take sufficient steps to ameliorate the discriminatory effects of this provision on the disabled employees.

32In the case before me, there is no provision in the collective agreement between the union and the employer that had a discriminatory effect on the applicant. As previously indicated, the posting provision in the collective agreement merely states that the person selected for a posting will be the most senior employee from among those that have the abilities to perform the work to be done. There is nothing inherently discriminatory about this collective agreement provision.

33The evidence before me is that it was the employer's representative, Mr. Fishwick, who determined that the applicant was unable to perform the duties of the Team Leader — Weld Repair position due to his medical restrictions. The applicant states that in order to be considered able to perform the work to be done, he was required to be able to perform 100 percent of the duties of all members of the team and that there was no consideration of accommodating his needs. The union's evidence is that this was its understanding of the employer's position regarding job postings, and that accommodations were provided through the medical placement process.

34This may or may not be the employer's position and, if it was, that may or may not have been discriminatory. But that issue is not before me. The issue before me, in relation to the union's potential liability under the Code, is whether the union participated in the formulation of a work rule that had a discriminatory effect on the applicant. While the union may have accepted that this was the rule in relation to job postings and may not have challenged or even disagreed with this rule, that is not the same as having participated in the formulation of the rule. There is no evidence before me to establish that the union participated in the formulation of any work rule that may have had a discriminatory effect on the applicant. Accordingly, I find that there is no basis in the evidence before me to support the union's liability on the first branch articulated in the Renaud decision.

35The second way that the Supreme Court held in Renaud that a union may be liable with respect to employment for a failure to accommodate is stated to occur "if the union impedes the reasonable efforts of an employer to accommodate" (see § 37). In such a situation, the Court states that it will be known that some condition of employment is operating in a discriminatory manner and the employer is seeking to remove or ameliorate the discriminatory effect. The Court held that a union becomes a party to the discrimination "if reasonable accommodation is only possible with the union's cooperation and the union blocks the employer's efforts to remove or ameliorate the discriminatory effect" (see § 37).

36While the Court does say that a union "incurs a duty not to contribute to the continuation of discrimination" and "cannot behave as if it were a bystander asserting that the employer's plight is strictly a matter for the employer to solve", these general statements are qualified by the introductory phrase "in these circumstances", which refers to a situation where the employer is trying to remove or ameliorate a discriminatory employment condition and requires the union's cooperation but the union impedes or blocks these efforts (see § 37). In my view, this is made abundantly clear by the Court when it states that "the union's duty arises only when its involvement is required to make accommodation possible and no other reasonable alternative resolution of the matter has been found or could reasonably have been found" (see § 40).

37Further, while the Court also states that a union "shares the obligation to take reasonable steps to remove or alleviate the source of the discriminatory effect", a union only does so when "it is a co-discriminator with the employer" (see § 39), which requires that the union be found to have been a potential co-discriminator on one of the two bases described in the Renaud decision.

38The facts of the Renaud decision itself illustrate the application of both branches of the requirements for union liability under the Code in relation to discrimination and the duty to accommodate. The appellant in that case was a custodian who was required pursuant to a provision of the collective agreement to work an afternoon shift on Fridays from 3:00 to 11:00 p.m. He was a Seventh-day Adventist whose religion forbade him from working on that religion's Sabbath, which is from sundown Friday until sundown Saturday. He met with an employer representative who was agreeable to the request not to work the Friday shift. However, as this shift was required under the collective agreement, the union's consent was required to create an exception. The union had a meeting to discuss making an exception for the appellant, but the proposed accommodation was rejected. The union was held jointly liable both on the basis that it participated in the formulation of the discriminatory work rule and on the basis that it contributed to the continuation of the discrimination by refusing to accept the employer-suggested accommodation, which was found to be the most reasonable solution to the problem (see § 48). The union's refusal in Renaud to accept the employer-suggested accommodation, in my view, represents a clear example of a union impeding or blocking an employer's reasonable efforts to accommodate.

39In my view, another case relied upon by the applicant before me, namely Bubb-Clarke v. Toronto Transit Comm. (No. 3), 2002 CanLII 46503 [reported 42 C.H.R.R. D/326] (Ont. Bd.Inq.), offers a further illustration of the second branch of the Renaud requirements for union liability. In that case, the complainant initially worked in the employer's Transportation Division until he developed a medical condition that prevented him from continuing to work in that area. As a result, the complainant was transferred to positions in the Maintenance Division. However, under the collective agreement, the applicant's seniority in the Transportation Division was not transferable to the Maintenance Division. Several years later, the complainant was sent home because the job he was performing no longer existed and he did not have sufficient Maintenance Division seniority to obtain another position in that area. The employer wrote to the union to request that the complainant be permitted to transfer his Transportation Division seniority to the Maintenance Division, so that he could bid for a position in that area. The employer was prepared to accommodate the complainant by disregarding the pertinent seniority provisions in the collective agreement and grant him seniority for all of the time he was employed. But the union refused to agree to this. This refusal by the union to agree to system-wide seniority being granted to the complainant was found to render the union liable for violating the Code. Once again, as stated in Renaud, this was a situation where it was found that the union impeded or blocked the employer's reasonable efforts to accommodate the complainant's needs.

40In the case before me, the union did not impede or block the employer's reasonable efforts to accommodate the applicant's needs. Indeed, the evidence before me indicates that no efforts were made by the employer to accommodate the applicant's needs, for the simple reason that the employer's position was that the applicant's medical restrictions prevented him from performing the duties of the Team Leader — Weld Repair position and that the employer was not in violation of the Code. The employer may or may not have been correct in this assessment. But once again, that is not an issue before me. The sole issue is whether the union is liable under the Code. In this regard, I note that, as there was no effort by the employer to accommodate the applicant's needs (whether or not any such effort was required, about which I make no determination), there was nothing for the union to impede or block. As a result, I find that there is no basis in the evidence to impose liability on the union pursuant to the second branch articulated in the Renaud decision.

41As I have previously indicated, the Supreme Court stated in Renaud that union liability with respect to employment in relation to the duty to accommodate only arises if the union is a party to the discrimination in one of the two ways articulated. As I have found that the evidence does not support the application of either of the two bases for such union liability articulated in Renaud, I accordingly find that the evidence does not support that the respondent has violated its obligations with respect to employment under s. 5 of the Code.

b. Union Liability for Discrimination with Respect to Union Membership under Section 6 of the Code

42It is submitted by the applicant that the union did not advocate on his behalf in support of his position that he was capable of performing the duties of the Team Leader position. It is submitted that the union not only accepted and did not challenge, but agreed with the employer's position that the applicant needed to be able to perform 100 percent of the duties of all team members without accommodation. It is submitted that the union did not suggest that the applicant be given a work trial or challenge the employer's position that work trials were not afforded in relation to postings. All of this may be true. However, that is different than the issue before me, which is whether such conduct by the union, even if I found it to be true, is capable of resulting in a finding of liability against the union under the Code.

43A series of decisions by this Tribunal have addressed the issue of when a union can be found liable under s. 6 of the Code on the basis that it has failed to properly or adequately represent one of its members. As stated in Arias v. Centre for Spanish Speaking Peoples (No. 2), 2009 HRTO 1025 [CHRR Doc. 09-1434] at § 16:

... I do not accept that, as a matter of law, a union can be found to have violated the Code merely because it has failed to properly or adequately represent one of its members. In Traversy v. Mississauga Professional Firefighters Association, Local 1212, 2009 HRTO 996 [CHRR Doc. 09-1405], at paragraph 17, 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 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 must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.

44These cases are not restricted to situations where a union has failed to file or pursue a grievance on the applicant's behalf. For example, in Traversy the applicant's allegations included that his union ignored him and failed to advocate on his behalf when his employer refused to accommodate him, and that the union should have acted more forcefully to counter the employer's position in relation to a WSIB claim. While the adjudicator does note that there was evidence before her to suggest that these allegations may not have been factually founded, she nonetheless found that a failure by a union to act or to advocate more strenuously on an applicant's behalf cannot in itself amount to discrimination under the Code.

45In Baylet v. Universal Workers Union (No. 2), 2009 HRTO 700 [CHRR Doc. 09-0949], the applicant alleged that the union discriminated against him when it failed to assist him in enforcing his right to be free from discrimination from the employer and that the union condoned the employer's discrimination when it failed to act on his behalf by contesting the disability-based harassment and discrimination that he says he experienced. In finding that this was not a sufficient basis upon which to found union liability, the adjudicator stated (at § 17 to 19):

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. To found a claim against the Union, the applicant must provide a factual basis that could give rise to a finding that it discriminated against him. For example, the applicant could allege that the Union interfered with the accommodation process or made its decision not to represent the applicant because of discriminatory factors. Both of these assertions would require a factual underpinning.

One can not presume that a union's failure to act was based on discriminatory beliefs. There may be many reasons why a union might choose not to pursue a human rights claim on behalf of an employee that have no discriminatory overtones. As such, it is essential that a factual basis for the alleged discriminatory conduct be established. A claim of discrimination must go beyond the mere fact that a particular union did not act.

In this case, there are no allegations against the Union apart from the fact that it did not complain about the Employer's conduct. The applicant concedes that this is the sole reason for his application against this Union. This is not a sufficient basis upon which to file an application under the Code. Accordingly, I find that the applicant has failed to establish a prima facie case against the Union and as such, the application against the Union is dismissed.

46In Boyd v. Toronto (City) (No. 1), 2010 HRTO 607 [CHRR Doc. 10-0725], the applicant alleged a violation of the Code by his union on the basis of the union's participation in an accommodation process whereby he says his Code rights were violated. In dismissing the claim against the union, the adjudicator stated (at § 2.5):

It is well established that the accommodation process in a unionized workplace is a three-way process involving the employee, the union and the employer: see, for example, Halifax (Regional Municipality) and Municipal Assn. of Police Personnel (2002), 2002 CanLII 79066 (NS LA), 105 L.A.C. (4th) 232 (Outhouse). However, the union's mere participation in that process, or failure to take the same position as an employee in that process, does not make it liable under the Code for the ultimate accommodation offered by the employer if this accommodation is found to violate the Code. There is no allegation in this case that the Association attempted to use its collective agreement rights to block an accommodation that the employer was willing to provide, and I leave for another day the question of whether such actions may be a violation of the Code.

47In sum, this Tribunal has held that, in the absence of evidence that a union's action or inaction was based on a discriminatory factor, not only is a union's failure to file or pursue a grievance not in itself discriminatory, but so is a union's failure to advocate on the applicant's behalf, its failure to assist an applicant in addressing discrimination or to contest the employer's actions, or its participation or involvement in an unsuccessful accommodation process. This kind of conduct may or may not provide a basis for a duty of fair representation complaint against the union under s. 74 of the Labour Relations Act [S.O. 1995, c. 1, Sched. A]. But it is not this Tribunal's jurisdiction to determine whether a union fairly or adequately represented a member in the absence of evidence that its conduct was based on a discriminatory factor. That is the role and jurisdiction of the Ontario Labour Relations Board.

48Applicant's counsel highlighted two further decisions in her final submissions. The first is a decision of the Canada Industrial Relations Board in Re Bingley, [2004] C.I.R.B.D. No. 32 (QL). The applicant in this case was a courier driver who developed a skin condition that required her to reduce her sun exposure to a maximum of eight hours per day, requiring a reduction in her work hours. The employer failed to reduce her hours and ultimately removed her from her position. After encountering resistance from the union, a grievance was filed on the applicant's behalf. The adjudicator found that the union failed to diligently intervene when the employer became uncooperative in providing the required accommodations or offered modified duties that were unacceptable; failed to conduct a thorough examination of the applicant's circumstances; did not proactively pursue the lack of accommodation of the applicant's needs or provide an "extra measure of care" in representing the applicant in relation to a disability accommodation issue; and did not apply an extra measure of assertiveness in dealing with the employer to resolve the accommodation issue. The adjudicator accordingly found that the union's actions had been discriminatory and in bad faith contrary to s. 37 of the Canada Labour Code [R.S.C. 1985, c. L-2].

49In the Bingley decision, the adjudicator discusses the interaction between the duty to accommodate under human rights legislation and the duty of fair representation under labour legislation (at § 62 to 64):

The union's duty of fair representation and its duty to accommodate, even though closely connected are, nevertheless, distinct duties. The duty to accommodate originates in human rights legislation, which requires the union to be reasonably cooperative with the employer in working out accommodation measures that to some extent may conflict with the collective agreement or the interests of other employees...

In duty of fair representation complaints, labour boards review how unions handled grievances filed by disabled employees who allege that their disabilities have not been accommodated. In reviewing these kinds of complaints, this Board, as it does in deciding other kinds of section 37 complaints, looks to see whether there was any evidence of bad faith, discrimination or arbitrariness by the union in the way it handled its members' grievances...

Due to the sensitive and important issues associated with the accommodation of disabled workers in the workplace, labour boards also look to see whether unions have given disabled employees' grievances greater scrutiny. The cases generally concur that the usual procedure applied to other members of the bargaining unit may be insufficient in representing a griever with a disability, mainly because the member's situation will require a different approach.

50The adjudicator then proceeds to review the labour board jurisprudence, concluding that (at § 74):

Overall, these cases suggest that when a member has some kind of disability, the union must not only handle the grievance in an "ordinary" manner, but has to put some extra effort into the case. Thus, the union cannot handle the case like any other grievance; it must be proactive and more attentive in its approach.

51From this, the adjudicator adopted the following non-exclusive criteria as guidelines in evaluating whether the union has satisfied its duty of fair representation in matters relating to the duty to accommodate (at § 84):

· whether the union's intervention was reasonable where the employer failed to implement appropriate accommodation measures;

· whether the quality of the process that allowed the union to come to its conclusion was reasonable;

· whether the union went beyond its "usual" procedures and applied an extra measure of care in representing the employee;

· whether the union applied an extra measure of assertiveness in dealing with the employer.

52While recognizing that this was a duty of fair representation case, I was encouraged by applicant's counsel to adopt and apply these principles in assessing whether the union had complied with its obligations under the Code. I decline to do so for several reasons. First, doing so would be a marked departure from the jurisprudence on union liability under the Code that already has been developed by the Tribunal, as set out above. This Tribunal has recognized that a union may be liable where there is a discriminatory basis or factor involved in its conduct in relation to its representation of a union member. But this Tribunal has held that the alleged inadequacy of a union's representation of a member on a human rights issue is not a sufficient basis in and of itself to support a finding of union liability under the Code.

53Second, one needs to recognize the different roles, processes and jurisdiction of a human rights tribunal under human rights legislation as opposed to the role of a labour board when dealing with a union's duty of fair representation under labour legislation. As a result of the inclusion of the duty of fair representation in labour legislation, a labour board has direct and immediate jurisdiction to assess and rule upon the adequacy of a union's representation of one of its members in relation to potential grievance issues, including human rights issues. It is not the role of this Tribunal to assume such jurisdiction from the Ontario Labour Relations Board.

54Further, a labour board's jurisdiction when dealing with a union's duty of fair representation is limited to an assessment of the union's conduct and does not extend to direct consideration, for example, of the merits of an issue raised by a grievance, including one raising a human rights issue. If a union is found to be in violation of the duty of fair representation, a labour board does not rule upon the merits of the grievance itself, including one raising human rights issues. Rather, the typical remedy ordered by a labour board in such circumstances is to refer the issue to grievance arbitration for determination, with ancillary orders as may be necessary to make the applicant whole.

55In contrast, a human rights tribunal is capable of dealing directly with the underlying human rights issue that is the subject of the applicant's concerns about any lack of union representation. For example, in the case before me, the applicant could have proceeded to a hearing before this Tribunal to directly consider whether the employer discriminated against him because of his disability when he was not awarded the Team Leader position. This did not happen because that issue was settled as between the applicant and the employer. This contrasts with a duty of fair representation application, where the labour board's intervention and finding that the union violated its duty of fair representation is often required before the underlying issue with the employer can be determined, typically through arbitration.

56In my view, this Tribunal's jurisprudence on union liability under the Code strikes the right balance in determining when a human rights tribunal should assume jurisdiction under the Code in respect of union conduct while respecting labour board jurisdiction in respect of the duty of fair representation.

57Finally, in the Bingley decision, I note that the adjudicator cited the Renaud decision and stated (at § 59) that the Court in Renaud held that "the union's responsibility may also be engaged when it does not address the discrimination even though it did not cause or take part in the discriminatory work policy". With respect, that is not what the Supreme Court said. As discussed at length above, the Supreme Court held that, where a union did not participate in the creation of the discriminatory work rule, the only other way that a union can become responsible for discrimination with respect to employment in relation to the duty to accommodate is if it blocks or impedes an employer's reasonable efforts to accommodate.

58This is not to suggest that the principles articulated by the adjudicator in the Bingley decision may not be proper and appropriate in the context of determining whether a union has complied with its duty of fair representation under labour legislation. That is not this Tribunal's jurisdiction. Rather, I note the reference to Renaud in order to be clear about what the Supreme Court found to be the two potential bases for union liability when dealing with discrimination with respect to employment and the duty to accommodate under human rights legislation. On the basis of the Supreme Court's decision, this does not extend broadly to an assessment of whether the union took sufficient or adequate steps to address the discrimination. Rather, where the union did not participate in the creation of the discriminatory work rule, the issue relating to potential union liability for discrimination with respect to employment under s. 5 of the Code is whether the union impeded or blocked the employer's accommodation efforts. And, as established in the Tribunal's jurisprudence, the issue for union liability under s. 6 of the Code is whether there was a discriminatory basis or factor involved in a union's conduct in relation to its representation of a union member.

59The final case highlighted for me in final argument by applicant's counsel is the decision of the Federal Court — Trial Division in International Longshore and Warehouse Workers Union (Marine Section), Local 400 v. Oster, 2001 FCT 1115, [2002] 2 F.C. 430 [42 C.H.R.R. D/1], on judicial review from a decision of the Canadian Human Rights Tribunal, [2000] C.H.R.D. No. 3 (QL) [ 2000 CanLII 49338 (CHRT), 38 C.H.R.R. D/124]. The complainant was a cook/deckhand seeking employment through a hiring hall operated by the union. She was not a union member, as she had not accumulated sufficient hours to qualify under the terms of the collective agreement. As a non-union member, she was required to attend the hiring hall to qualify to be dispatched for available positions, with priority given first to union members. On the occasion in question, the complainant was in the office of the union President when he called a prospective employer about referring her to a position as a cook/deckhand on a tug. The employer advised the union President that the complainant would not be an acceptable referral because the tug did not have separate sleeping quarters for women. The union President accepted this explanation, and the complainant was not referred for the job.

60As it turns out, the work to be performed on the tug was only being done by two persons working alternating six-hour shifts, such that these two individuals would not have been required to share sleeping quarters at the same time. The complainant accordingly filed complaints alleging gender discrimination against both the prospective employer and the union. For reasons that are not explained in the Tribunal decision, the complaint against the prospective employer was not sent forward to the Tribunal for a hearing. As a result, the case proceeded solely against the union.

61The Tribunal adjudicator found that the union was liable under the Canadian Human Rights Act on the basis that the union President had acted in a way that deprived the complainant of an employment opportunity based on her sex. It was found that the phone call in the union President's office and his failure to question or challenge the employer's requirement constituted a discouragement to the complainant about participating any further in the hiring hall process in relation to the dispatch for this particular job. The Tribunal held that the union had an obligation both at law and under the collective agreement not to be a party to a discriminatory act, and a duty to respond in a way consistent with its obligations to accommodate the complainant. It was held that the union failed in this duty by failing to object to or challenge the employer's statement and thereby effectively giving sanction to what was said. It was further held that the union failed in its duty by not signalling its intent that the complainant should proceed to apply through the hiring hall process, which would have left open the possibility of her accessing the grievance procedures under the collective agreement. The Tribunal's findings were upheld by the Federal Court on judicial review.

62It seems to me that the Oster decision is distinguishable on the basis that the situation arose in the context of a union hiring hall and a potential referral to a position with a prospective employer. The complainant was not an employee of the prospective employer, nor was she even referred to the prospective employer and denied the position by the prospective employer. Rather, on the basis of the Tribunal's findings, the union President's response, or lack thereof, on the phone call with the prospective employer discouraged the complainant from proceeding further with the hiring hall process.

63In my view, this situation may be akin to the role and potential liability of an employment agency pursuant to s. 23(4) of the Code, whereby an employment agency can be found liable for violating s. 5 of the Code where it discriminates against a person because of a prohibited ground of discrimination "in receiving, classifying, disposing of or otherwise acting upon applications for its services or in referring an applicant or applicants to an employer or agent of an employer". Like an employment agency, the union hiring hall received an application for its services from a prospective employer which indicated a classification for a position on the basis of gender. The union hiring hall was found effectively to have acted upon this discriminatory classification by not objecting to or challenging the prospective employer's request and thereby discouraging the complainant from applying. Given these particular factual circumstances of the Oster case, I do not regard this decision as providing authority for a general proposition that a union has an obligation under human rights legislation to object to or challenge alleged discriminatory conduct by an employer.

64There may be circumstances where an employer's work rule is so blatantly discriminatory that a union's failure to object to or challenge such a rule effectively deprives one of its members of her or his right to equal treatment with respect to union membership as guaranteed by s. 6 of the Code. I leave consideration of that issue for another day on the basis of the right evidentiary record. In the matter before me, there is no evidence from the employer confirming the existence of a work rule stating that an employee must be able to perform 100 percent of the job duties of a position without accommodation in order to be awarded a posting or that the application of any such rule was the reason the applicant was denied the Team Leader position. Rather, Mr. Fishwick's evidence was that the applicant was denied the Team Leader position because he could not perform the duties of this position given his medical restrictions. I understand that this is disputed by the applicant. Consideration and determination of the issue of whether the employer's actions were in violation of the Code was precluded by the settlement. In my view, the evidence before me does not establish that the employer's actions in making this assessment in relation to the applicant were so blatantly discriminatory that the respondent union's failure to object to or challenge the employer's actions deprived the applicant of his right to equal treatment with respect to his union membership.

65Accordingly, for all of the foregoing reasons, I find that the allegations regarding the union's failure to advocate sufficiently on the applicant's behalf are not capable of providing a basis for imposing liability on the union for violating s. 6 of the Code.

66Apart from the applicant's allegations regarding the adequacy of the union's representation, there are three further allegations of discrimination that I need to address. The first arises from the statements alleged to have been made by Ms. Graves at the March 7, 2005, meeting. The first allegation is that Ms. Graves told the applicant that he was "lucky to have a job". Ms. Graves denies that she made this statement, although she acknowledges that the discussion with the applicant included comments about prior difficulties in finding a job for the applicant through the medical placement procedure due to his restrictions. The applicant's evidence is that this discussion was quite heated. As a result, I find that the applicant may have interpreted that this is what Ms. Graves had said or these words may have registered with the applicant without the surrounding context. If Ms. Graves said that the applicant was "lucky to have a job", I find that any such statement was made in the context of the prior difficulties in finding him a position through the medical placement procedure. If such words were said, this would have been an infelicitous statement by Ms. Graves, as a disabled employee is not "lucky" to have a job where a suitable job is found as a result of an employer's obligation to fulfil its duty to accommodate. However, I am not prepared to find that such a statement in and of itself is sufficient to support a finding of a violation of the Code.

67The evidence before me also indicates that during this meeting, Ms. Graves made a statement that if the applicant was awarded the Team Leader position and someone else was required to perform some of the Team Leader duties, then why should the applicant be paid for being a Team Leader and why shouldn't the other person receive such payment. This statement may reflect an incomplete understanding on Ms. Graves' part of the requirements of the duty to accommodate. But once again, I am not prepared to find that this statement in and of itself rises to the level of a violation of the Code.

68The second allegation arises from the fact that the applicant was required to appear at a Local membership meeting as the first step in appealing the decision made by Ms. Graves and Mr. Brooke that they would not pursue a grievance or complaint on his behalf arising out of the denial of the Team Leader position. The applicant alleges discrimination on the basis that this was a human rights issue relating to his medical restrictions, and he expressed concern about having to disclose and discuss his restrictions in front of the Local membership and then have the decision put to a vote.

69The requirement for a CAW member to pursue a first level of appeal regarding a grievance decision to the Local membership stems from art. 24 of the CAW Constitution. This requirement is a standard part of many union constitutions. Union officials, such as Ms. Graves as the human rights and medical placement representative, and Mr. Brooke, as the Plant Chairperson, are elected by and accountable to the Local membership. It was their decision as elected union officials not to pursue a grievance or complaint on the applicant's behalf that was being appealed. In my view, it is not inherently discriminatory for a decision about a grievance, including a grievance that raises human rights issues, to be required to be appealed to the Local membership who elected the union officials whose actions are at issue and to which these officials are responsible and accountable. With a typical employer, a decision taken by a subordinate official can be reversed or changed by a higher-ranking official. A union's relationship to its members, however, is not that of an employer. Rather, a union Local is a democratic institution where union officials are elected by and ultimately accountable to the membership as a whole.

70This is not to suggest that a decision made by the Local membership can insulate a union from its responsibilities under the Code, if the union's conduct otherwise amounts to discrimination. Rather, I find that the mere fact of requiring a member to appeal to the Local membership against a decision not to proceed with a grievance is not in and of itself discriminatory in violation of the Code. I appreciate that, in this case and in other human rights cases, a union member may be required to share personal information with the Local membership as part of the basis for the appeal. However, I note that proceedings under the Code are public proceedings and result in public decisions where such information necessarily is disclosed. I also note that any review of a decision concerning a human rights issue made by higher-ranking officials of an employer necessarily will require some disclosure and discussion of an employee's personal information that provides the basis for the human rights concern. Such reviews or discussions by an employer may take place in the context of a management or executive committee or, for smaller employers, perhaps even by a board of directors. Such disclosure and discussion is necessary so that these higher-ranking officials, to whom the subordinate who made the decision is accountable, can make an informed decision. In the same way, in a democratic institution such as a Local union where a member is appealing a decision by Local union officials not to proceed with a grievance with which the member disagrees, the elected union officials are accountable to the Local membership. As a result, disclosure and discussion is similarly necessary in order for the Local membership to make an informed decision on the appeal.

71Finally, I note that subsequent to the issues raised by the applicant in this proceeding and indeed because of these issues, the respondent's membership voted to amend its by-laws to state, "Due to the confidential nature and complexity of grievances relating to human rights, the appeal process shall proceed directly to the National Executive Board". As a consequence of this amendment, an appeal against a Local union official's decision not to file a grievance relating to a human rights issue no longer is required to be appealed first to the Local membership, but can proceed directly to the next level of appeal. While this may be a commendable action to have been taken by the respondent, I do not regard or treat it as any admission or concession that the appeal procedure in place at the relevant time was discriminatory or in violation of the Code.

72The third allegation relates to the decision by Mr. Keeney as communicated by his letter dated June 24, 2005, not to proceed further with the applicant's appeal on the basis that the applicant had filed a human rights complaint. As previously discussed, this was premised upon art. 24, s. 1 of the CAW Constitution which requires a member to exhaust all internal methods of appeal prior to seeking a remedy in the courts or through a government agency. Once again, I do not find there to be anything inherently discriminatory in such a requirement. It was submitted that Mr. Keeney did not contact the applicant to suggest that he withdraw his human rights complaint or ask that it be held in abeyance pending the disposition of the internal appeal. While that is true, Mr. Keeney's letter invited the applicant to contact him if he had any questions and the applicant did not do so. In my view, if the applicant was truly interested in pursuing the internal appeal, notwithstanding that he had filed a complaint with the Commission, and wanted to explore how he could do that within the framework of the CAW Constitution, these are questions that could and should have been posed to Mr. Keeney. In any event, having found that there was nothing inherently discriminatory about the provision in the CAW Constitution, I am not prepared to find that any failure on the union's part to contact the applicant to suggest ways that the internal appeal could proceed would be any more in violation of the Code.

73Accordingly, I find that the evidence before me does not provide a sufficient basis to impose liability on the respondent union pursuant to s. 6 of the Code.

74For all of the foregoing reasons, the application is dismissed.