HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Walsh

Applicant

-and-

Maintenance & Construction Skilled Trades Council and Toronto District School Board

Respondents

DECISION

Adjudicator: Michelle Flaherty

Date: December 14, 2011

Citation: 2011 HRTO 2243

Indexed as: Walsh v. Maintenance & Construction Skilled Trades Council

APPEARANCES

John Walsh, Applicant ) Self-Represented

Maintenance & Construction Skilled ) Anne Cumming, Counsel Trades Council, Respondent )

Toronto District School Board, Respondent ) Tony Brown and ) Avneet Grewal, Counsel

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which he alleges discrimination in employment and membership in a vocational association on the basis of disability. He also alleges reprisal or threat of reprisal.

2In essence, the applicant alleges workplace harassment and bullying. He is dissatisfied with the respondents’ reaction to his complaints of workplace harassment and states that this constitutes discrimination.

3In a Case Assessment Direction (“CAD”) dated July 19, 2011, the Tribunal ordered that this matter proceed by way of summary hearing. The summary hearing was held by telephone conference on December 12, 2011. The Tribunal heard submissions from the applicant and from counsel for the Toronto District School Board (“TDSB”) and the Maintenance & Construction Skilled Trades Council (the “Union”).

4For the reasons that follow, the Application is dismissed. I find that it has no reasonable prospect of success. Even assuming the facts alleged by the applicant to be true, I find that there is no reasonable prospect of establishing a link between the applicant’s allegations and the Code.

OVERVIEW

5There is some history between the parties to this Application. The applicant was employed for a number of years by the TDSB. At the material times, he was a member of the respondent Union.

6The applicant was laid off from his job effective May 20, 2008. The TDSB states that he was also stripped of his seniority and recall rights under the collective agreement because he had failed to substantiate a number of absences in April of 2008. Although the applicant acknowledges that he may not have done so in a timely manner, I understand him to dispute the allegation that he did not provide sufficient medical information to justify his absences.

7Importantly, at the hearing, the applicant confirmed that neither his layoff nor his seniority and recall rights under the collective agreement are at issue in this Application. The applicant confirmed that the Application relates solely to allegations that the respondents failed to appropriately address the applicant’s complaints of workplace harassment.

8At the hearing, the applicant also confirmed that the workplace harassment he complained of was not based on a Code ground. In other words, he states that he complained to the respondents about personal harassment by a co-worker pursuant to a TDSB policy. He does not believe that a ground under the Code was a factor in the co-worker’s behaviour towards him.

9There was a dispute between the parties as to whether or not the applicant alerted the TDSB to the alleged harassment. The applicant states that he made five formal complaints beginning in April 2007. The TDSB states that the applicant never made a formal complaint but that, when he mentioned the alleged harassment to human resources in April of 2008, TDSB worked to resolve the problem. It is not necessary for me to resolve the factual dispute for the purposes of the summary hearing. As I explain below, even if I assume (without finding) that the applicant advised the respondents of workplace harassment in April 2007, this does not assist him in establishing that the Application has a reasonable prospect of success.

10In terms of his allegations of reprisal, the applicant states that his co-workers reprised against him because he filed a complaint under the TDSB harassment policy. The applicant states that his co-workers engaged in further harassing behaviour towards him when they learned he had complained to the respondents. I note that the applicant’s complaint under the TDSB policy did not relate to a Code ground. Similarly, the harassment that allegedly occurred in reprisal for making the complaint is unrelated to the Code.

11Finally, I note that the parties have been engaged in at least two other proceedings regarding the subject-matter of the Application. First, the applicant has filed a duty of fair representation complaint against the Union. The Ontario Labour Relations Board has dismissed the complaint. Second, the Union filed a grievance on the applicant’s behalf, but did not refer the grievance to arbitration.

ANALYSIS

12The Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To succeed in the Application, the applicant must be able to prove, on a balance of probabilities, a link between the respondents’ alleged actions or inactions and a Code ground. See Dabic v. Windsor Police Service, 2010 HRTO 1994.

13The applicant argued that the Application engages the ground of disability. However, there is no allegation of Code-related harassment in the workplace. There is also no allegation of reprisal for asserting a Code-related right. The only alleged connection between the Application and the Code is the applicant’s allegation that he became disabled as a result of workplace harassment. The applicant argues that, because a disability ensued from the harassment, the Application falls within the ambit of the Code.

14The applicant explained that the effects of the alleged harassment on him were serious and that they had a negative affect on his health and well-being. He states that TDSB’s policies recognize that harassment is harmful and can have serious negative impact on workers. He argues that TDSB’s policies and its acknowledgement of the potential harm of personal harassment bring the Application within the scope of the Code.

15TDSB disputes that the applicant had a disability that justified him being absent from work in April 2008. It states that the medical information provided by the applicant for this period (including a list of prescription medications) is not sufficient to show that he was unable to work.

16It is not necessary for me to make any factual findings in this regard. For the purposes of this summary hearing, I am prepared to assume (without finding) that the applicant developed a disability in the spring of 2007. Importantly, I make no finding as to whether the information he provided to the respondents was sufficient to substantiate his absences.

17Even assuming that the applicant developed a disability as a result of the personal harassment he says he endured, this does not bring the Application within the ambit of the Code. The purpose of the Code is not, as I have indicated, to address all alleged unfairness. Nor is it so broad as to prevent individuals from developing disabilities. The Code is designed to address differential treatment based on a number of grounds, including disability. The fact that a disability arose in the context of a series of workplace interactions is not sufficient to engage the Code. Nor does it automatically suggest that there was a differential treatment between the person with the disability and others.

18To put it differently, the applicant argues that the Code is engaged because he developed a disability following harassment unrelated to the Code. The Code (and the Tribunal’s jurisdiction) is not automatically engaged in the presence of a disability. To show a connection between the Code and his allegations, the applicant would need to demonstrate that he was somehow treated differently than others because of a disability. The applicant has made no such allegations in this case.

19I find that there is no reasonable prospect that the Application would succeed. Therefore, the Application is dismissed.