HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Valerie Drost
Applicant
-and-
Ottawa-Carleton District School Board, Ottawa-Carleton Elementary Teachers’ Federation, Elio Lisi, Janet Fraser, Jillian Bell and Laura McAlister
Respondents
INTERIM DECISION
Adjudicator: Maureen Doyle
Indexed as: Drost v. Ottawa-Carleton District School Board
APPEARANCES
Valerie Drost, Applicant ) No one appearing
Ottawa-Carleton District )
School Board, Elio Lisi, ) Roger Mills, Counsel
Jillian Bell, Laura McAlister, )
Respondents )
Ottawa-Carleton Elementary )
Teachers’ Federation, ) Kate Hughes, Counsel
Janet Fraser, Respondents )
1This is an Application filed on December 6, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"). The applicant alleges that the respondents discriminated against her in employment on the basis of disability. She also alleges that the respondents have engaged in reprisal or threat of reprisal contrary to the Code.
2The respondent Ottawa-Carleton Elementary Teacher’s Federation (the "Federation") and the respondent Janet Fraser made a request for a Summary Hearing on March 15, 2011. The Tribunal issued a Case Assessment Direction ("CAD") on April 14, 2011, directing that a Summary Hearing by teleconference take place, in order to determine "whether the Application should be dismissed as against these two respondents on the basis that it has no reasonable prospect of success". [emphasis in the original]
3On August 12, 2011, the Tribunal sent a Notice of Confirmation of Summary Hearing to the parties advising that a teleconference hearing was scheduled for this matter on October 14, 2011 at 1:30 pm. The Notice provided the telephone number and call-in information necessary for participation. The Notice also indicated the consequences of failing to attend the hearing as follows:
If you fail to attend the hearing after receiving proper notice the HRTO may:
proceed in your absence;
determine you are not entitled to further notice of the proceedings;
determine you are not entitled to present evidence or make submissions to the HRTO;
decide the Application based solely on the materials before the HRTO; and,
take any other action the HRTO considers appropriate
4The Notices of Summary Hearing were not returned to the Tribunal as undeliverable.
5On October 14, 2011, the teleconference hearing convened at 1:30 pm. The applicant did not appear. I stood the matter down for 30 minutes to await her attendance or some explanation of her failure to attend. No communication was received by the Tribunal. Counsel for the respondents appeared.
6I was satisfied that the applicant had notice of the hearing and the Summary Hearing proceeded in her absence, with submissions being made by counsel for each of the respondents.
DECISION
7For the reasons that follow I find that this matter as against the Federation and as against Ms. Fraser has no reasonable chance of success, and the Application as against these two parties is dismissed.
ANALYSIS
Summary Hearings
8In a summary hearing, the issue is whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or a part thereof will succeed. It is outlined in Rule 19A of the Tribunal’s Rules of Procedure:
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.
9In Dabic v. Windsor Police Service, 2010 HRTO 1994, 2010 HRTO 1994, at paras. 8 and 9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:
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.
Application to the Facts
10In her Application, the applicant, a teacher, alleged that a fellow teacher had permitted scented products in the school and that this was contrary to the accommodations she required for her disability. She made a complaint about the teacher to the principal and to the worker representative on the Joint Occupational Health and Safety Committee, and she so advised the teacher. The applicant alleged that the teacher’s response was to "threaten to make a formal complaint against me for complaining about her", and the applicant subsequently made written complaints against the teacher under the Board’s "Respectful Workplace Policy" and of "Harassment of an Employee".
11In her Application, she alleged that the respondent Janet Fraser, who was a representative of the Federation, and the teacher "embarked upon a campaign in which she spoke very negatively about me to the other teachers on staff at my school, in order to stir up negative opinion against me and thus create a poisoned work environment".
12The applicant alleged that her superintendent at the School Board wrote to her on June 28, 2010 advising that following an investigation of her complaints, the teacher’s actions were found to have been completely respectful and appropriate, but that the applicant herself was guilty of having made untrue allegations about four other co-workers in the past and the superintendent also wrote that the applicant herself had created a negative impact in the workplace. The letter stated that the School Board found that the applicant’s behaviour toward the teacher and others at the school was "creating an environment where colleagues do not feel as if you are treating them appropriately and with respect." It stated that, as a result, she was directed to "cease and desist in your disrespectful behaviour and to ensure your interactions with other staff are both professional and respectful".
13The applicant alleges that the letter is punitive and that she has been "inappropriately sanctioned because I am disabled and because I have complained about my employer’s refusal to provide the necessary work accommodations". With regard to the Federation, she alleges that it agrees with the superintendent, and that it "refused to file a grievance about the disciplinary letter or about the board’s failure to make the necessary medical accommodations, and refuses to assist me in my attempts to seek redress through the HRTO or other bodies." She alleges that the Federation was "acting in concert with the employer".
14In addition to other remedial awards, she seeks Monetary Compensation from the respondents and also seeks an order that the Federation "be forced to provide representation for me in my quest to seek justice for the harm the employer and its agents have brought to me".
15In their Response, the Federation and Janet Fraser deny any discrimination and allege that the Federation has been working for two and a half years to facilitate appropriate accommodation for the applicant "by filing grievance and labour board matters, when necessary, and by meeting with the Respondent Board frequently and in a timely way to address accommodation issues that arise." It alleges that the grievances filed were resolved to the applicant’s satisfaction. With regard to the fact that the Federation has not filed a grievance with respect to the June 28, 2010 letter, the Response alleges that the letter is not disciplinary, is not related to accommodation or to any other Code protected ground, and that the Federation’s "investigation and legal advice was that a grievance with respect to this letter would have no chance of success".
16The Applicant filed a Reply in which she did not dispute the fact that the Federation had filed grievance and labour board matters, but disputed that the grievances were resolved to her satisfaction. She alleged that the labour board matter was undertaken at her initiative and that the Federation participated in furtherance of its own purposes. She also alleged that the workplace accommodations were never to her satisfaction, but did not deny that the Federation had been meeting with the Respondent Board to address accommodation issues. She did, however, allege that neither the respondent Board nor the Federation had "taken the Applicant’s disability seriously and treated her with respect".
17The Respondents Janet Fraser and the Federation seek the dismissal of the Application as against them on the ground that there is no reasonable prospect of success.
18With regard to the Application as against the Federation, at the Summary Hearing, counsel reviewed the Federation’s efforts in providing assistance to the applicant with respect to obtaining workplace accommodation of her disability, including filing grievances, an appeal of a matter at the Ontario Labour Relations Board, and meetings with the employer school board, all as referenced in the Response filed with the Tribunal. She also reviewed the Federation’s decision not to file a grievance regarding the June 28, 2010 letter, again, as referenced in the Response. Counsel submitted that the latter letter does not relate to a Code matter and that the Federation’s decision not to file a grievance is totally within its discretion. With regard to the Application as against the Federation generally, she cited Traversy v. Mississauga Professional Firefighters’ Association 2009 HRTO 996 ("Traversy") and submitted that the applicant here makes no assertion of differential treatment which could amount to discrimination under the Code. She submitted that although the applicant believes the Federation should have done more for her, this does not establish discrimination. She also cited Dixon v. Ontario Nurses’ Association 2010 HRTO 160 ("Dixon") and noted that the Federation, not being in the position of employer, cannot offer accommodation, but neither can it impede accommodation efforts. She submitted that the Federation has made considerable efforts to assist the Applicant in obtaining workplace accommodation of her disability. With regard to the Federation’s decision not to assist her in proceedings before other bodies, she noted that at the Tribunal applicants do not require legal assistance and are able to represent themselves, and it is not discriminatory for the Federation to decline to participate in proceedings at the Ontario College of Teachers ("OCT") where it takes the position that OCT proceedings are not appropriate for solving "internal disputes".
19With regard to the Application as against Janet Fraser, counsel submitted that the only allegation against Ms. Fraser was that she had "embarked upon a campaign in which she spoke very negatively about me to the other teachers on staff at my school, in order to stir up negative opinion against me and thus create a poisoned work environment". Counsel submitted that there are no particulars provided which could establish a breach of the Code.
20At the Summary Hearing, counsel for the School Board and other named respondents took no position with regard to the request for dismissal of the Application as against the Federation and Janet Fraser.
21The power of the Tribunal is limited to dealing with applications alleging a violation of the Code, which prohibits discrimination on specific grounds. It does not have the power to deal with all claims of unfairness or all disputes between parties.
22The applicant has made a bald assertion that the Federation has discriminated against her, but has not plead facts which would indicate a link between the Federation’s actions and decisions and any ground protected under the Code. Her allegations appear to relate to her estimation that the Federation has not done enough to help her in her efforts to obtain workplace accommodation for her disability, her position that it should have filed a grievance regarding the letter she received June 28, 2010, and her desire that the Federation assist her in proceedings elsewhere. The Tribunal addressed the question of the application of the Code to union’s relationships with employees in Traversy:
…The case is about the Association’s obligations as a representative of the applicant in his employment relations with the employer. In essence, his claim is that the failure by the Association to advocate or to advocate more strenuously for him in the workplace, amounts to discrimination under section 6.
Not surprisingly, this raises the issue of the relationship between a union’s obligations towards a member under the Code, and its obligations under the law of the ‘duty of fair representation’, whether under section 74 of the Labour Relations Act, 1995, S.O. 1995, c.1, Sched. A, or another law. This is not the case to fully explore that issue, but I refer to it because the allegations of the applicant focus on an aspect of the relationship which is already governed by legal principles outside of the Code, arising out of a union’s role as the exclusive bargaining agent and its corresponding duty to fairly represent employees in the bargaining unit.
Assuming that the Code also applies to this aspect of the 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.
23The applicant must be able to show that the respondent Federation has treated her differently as compared to others based on a ground protected under the Code for her Application as against the Federation to be successful. She has not, however, indicated what evidence, if proven, would establish that the Federation has treated her unequally because of a Code protected ground, or that there were improper discriminatory considerations behind the Federation’s actions and decisions. In the absence of such a claim of differential treatment based on discriminatory factors and a factual foundation for that claim, her allegation that the union has not assisted her sufficiently cannot lead to a finding of discrimination under the Code.
24With regard to the Application as against Janet Fraser, the applicant has not provided particulars which could establish a breach of the Code. Again, the Tribunal does not have the power to deal with all claims of unfairness or all disputes between parties. The applicant has made a bald assertion of discrimination by Janet Fraser, but has not indicated what evidence she would be able to call to indicate a link between the allegation of a negative campaign against her and any ground protected under the Code.
25I find that there is no reasonable prospect that the Application as against the Federation and as against Janet Fraser will succeed and it is dismissed as against those two respondents.
Dated at Toronto this 24th day of October, 2011.
"signed by"__________
Maureen Doyle
Vice-chair