Taylor-Cole v. Orangeville Police Association, 2011 HRTO 2285

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sean Taylor-Cole Applicant

-and-

Orangeville Police Association, Lindsay White, Doug Fry and Diane Waddell (LeBlanc) Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price Date: December 21, 2011 Citation: 2011 HRTO 2285 Indexed as: Taylor-Cole v. Orangeville Police Association

APPEARANCES

Sean Taylor-Cole, Applicant ) Self-represented

Orangeville Police Association, ) Lindsay White, Doug Fry and ) Barry Chercover, Counsel Diane Waddell (LeBlanc), Respondents )

INTRODUCTION

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the "Code"), alleging that the respondents discriminated against the applicant with respect to membership in a vocational association on the basis of disability.

2A summary hearing was held in this matter on the Tribunal's own initiative on December 19, 2011. Pursuant to Rule 19A of the Rules of Procedure, a summary hearing is to determine whether an Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed. If, following a summary hearing, the Tribunal finds that an application has no reasonable prospect of success, it will be dismissed. In the absence of such a finding, the Application will continue to be processed by the Tribunal.

3Although the respondents may well dispute some or all of the applicant's allegations, they have not yet been required to file Responses to the Application. Accordingly, and as is the usual course, in determining whether the Application has no reasonable prospect of success, I have considered only the allegations of the applicant.

BACKGROUND

4The applicant worked as a police officer with the Orangeville Police Service. In 2007, the applicant filed a grievance through her bargaining agent, the respondent Ontario Police Association ("the association") alleging that she had been harassed by two of her supervisors from 2004 until 2006, including, apparently, on the basis of prohibited grounds under the Code. The applicant's grievance was referred to arbitration by the association.

5In December 2010, a new executive was elected to lead the association. The personal respondent Lindsay White was elected as President of the association; personal respondent Doug Fry as Vice-President; and personal respondent Diane Waddell (LeBlanc) as civilian director. The applicant alleges that personal respondent Lindsay White made some of the derogatory remarks about which she had complained in her 2007 harassment grievance.

6By letter dated February 22, 2011, the association advised the applicant that it was withdrawing from any further participation in her grievance arbitration hearing. The stated reason for the association's withdrawal was the applicant's mistrust of the association's executive and its legal counsel, as well as the applicant's attempts to prevent the association's legal counsel from communicating with the executive about the grievance. During the summary hearing, the respondents submitted that the high cost of the litigation was also a factor in the association's decision to withdraw from the arbitration hearing. The association advised the applicant that she could continue with the grievance on her own behalf, or with another representative, at her own expense, if she wished to do so. The arbitration hearing was adjourned.

7There was a meeting of the association's membership on March 8, 2011. The applicant alleges that, at that meeting, while explaining the executive's decision not to continue with her grievance, the personal respondent Doug Fry told the association's members that the applicant wanted close to a million dollars to settle her grievance and that the applicant had "engaged" the media to investigate her case. The applicant contends that these were "lies" designed to undermine the applicant and to build support for the association's decision not to continue pursuing her grievance.

8The applicant alleges that she attended the next meeting of the association membership on April 11, 2011, intending to appeal to the members pursuant to the association's constitution to overturn the executive's decision not to continue with her grievance. The applicant alleges that the personal respondent Diane Waddell smirked while the applicant was telling the membership about her chronic depression, post-traumatic stress disorder and chronic pain, and constantly interrupted the applicant during her submission to the membership. The applicant also alleges that, while she was speaking, Ms Waddell pointed at her head with her index finger while making a circular motion as if to convey that the applicant was "crazy". The applicant alleges that the personal respondent Lindsay White cut the applicant off after she had been speaking to the membership for only five minutes and then yelled at her to stop talking. The applicant alleges that Mr White also said in front of everyone at the meeting that he doubted the applicant's ability to take the stand at her arbitration hearing due to her mental instability. The applicant alleges that she found this humiliating and that she was so upset that she left the meeting crying.

ANALYSIS

9As it stated in its July 11, 2011 Case Assessment Direction in this matter, the Tribunal does not have the power to deal with general allegations of unfair treatment by unions or employee associations. The Tribunal can only deal with allegations of discrimination or harassment which is based on the prohibited grounds set out in the Code. In keeping with this, the Tribunal has found that it is not discrimination for a union or an employee association to decide not to pursue a human rights grievance, unless its decision is linked, in whole or in part, to a prohibited ground of discrimination under the Code: Baylet v. Universal Workers Union, 2009 HRTO 700, at para. 17-19; Traversy v. Mississauga Professional Firefighters Association, 2009 HRTO 996, at para. 33; Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025, at para. 16-17; Koroll v. Automodular, 2011 HRTO 774, at para 71-73; Gungor v. Canadian Auto Workers Local 88, 2011 HRTO 1760, at para 42-47.

10In this case, the applicant maintains that she is not asking the Tribunal to deal with a general claim that she has been unfairly treated by the respondents. Rather, she submits that that the manner in which the respondents treated her was linked to her disabilities and constituted discrimination on the basis of a prohibited ground under the Code.

11At this stage, it is obviously not appropriate for the Tribunal to make any factual or legal findings with respect to the applicant's allegations. Suffice it to say that, having heard and considered the applicant's allegations, I am unable to conclude that the applicant has no reasonable prospect of success in establishing a link between the events alleged to have occurred and the Code protected ground of disability. The Application will therefore continue in the Tribunal's process.

12During the summary hearing, the applicant made certain allegations that do not appear to be contained in her Application, in particular, the allegation that Ms Waddell made a hand gesture during the April 11, 2011 meeting suggesting that the applicant was "crazy". In addition to the allegations outlined above (which is not intended to be, and is not, an exhaustive recital of all of the issues and/or allegations which have been raised in this matter), the applicant also alleged during the summary hearing that personal respondent Doug Fry told another member of the association that the applicant was a "loonie" and that Mr Fry and Ms Waddell made other degrading remarks about the applicant.

13The respondents submit that the Tribunal ought not to consider these or other allegations raised by the applicant for the first time during the summary hearing in determining whether the Application has no reasonable prospect of success. In my view, however, this would not be appropriate.

14It must be remembered that the summary hearing process is intended to dismiss – typically at an early stage, before relevant documents, witness lists and witness statements have been exchanged by the parties – only those applications which would have no reasonable prospect of success if they were to proceed to a hearing on the merits. It is not intended as a mechanism by which to dismiss applications on the basis of technical deficiencies in the pleadings. Indeed, one of the central purposes of the summary hearing process is to afford the applicant an opportunity to point to the evidence by which she intends to establish a link between the disadvantageous treatment complained of in the application and a prohibited ground of discrimination under the Code: Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 9-10. In describing the evidence by which she intends to prove that her rights under the Code have been infringed, it is not uncommon for an applicant during a summary hearing, particularly summary hearings which take place at an early stage in the Tribunal's process, to refer to particulars or factual allegations that are not contained in the application. Typically, these allegations are taken into account by the Tribunal in determining whether the application ought to be dismissed as having no reasonable chance of success: Basic v. Home Medical Equipment, 2011 HRTO 724; Ryckman v. Dollco Corporation, 2011 HRTO 2214; Forde v. Avon Maitland School Board, 2011 HRTO 1075; Sawula v. Best Western Orangeville Inn and Suites, 2011 HRTO 716; Westgarth v. Great West Life Assurance, 2011 HRTO 1189.

15In any event, in this particular case, even without considering the additional allegations brought out by the applicant during the summary hearing, I would not have been able to conclude that the Application had no reasonable prospect of success.

DIRECTION

16The Application will continue in the Tribunal's process.

17The applicant is required to put the additional allegations which she raised during the summary hearing in writing so that the respondents may respond to all of the applicant's allegations when they file their Responses to the Application. Specifically, the applicant is directed to put any of her allegations which are not already contained in her Application, even if referred to above, in writing and to deliver them to the respondents and file them with the Tribunal within 21 days of the date of this Interim Decision.

18The respondents are directed to file their Responses to the Application within 28 days of receiving the above-noted materials from the applicant.

19The applicant may file her Reply to the Responses within 14 days of receiving the Responses in accordance with the Tribunal's Rules.

20I am not seized of this matter.