HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jose Escobar
Applicant
- and-
Canadian Union of Public Employees, Local 79 and David Kidd
Respondents
decision
Adjudicator: Ian R. Mackenzie
Indexed as: Escobar v. Canadian Union of Public Employees, Local 79
APPEARANCES and wRITTEN SUBMISSIONS
Jose Escobar, Applicant ) Self-represented
Canadian Union of Public Employees, ) Local 79 and David Kidd, Respondents ) Melissa Kronick, Counsel
1Jose Escobar filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in a vocational association on the basis of race, colour and place of origin. The applicant self-identifies as a Latino, born in El Salvador. The applicant also alleged a reprisal or threat of reprisal for exercising his rights under the Code
2The applicant alleges that Canadian Union of Public Employees, Local 79 (“Local 79”) and David Kidd (a union officer) discriminated against him with regards to the following three actions: his removal from the position of shop steward; his removal from the Local 79 human rights committee; and their failure to take his grievance against a ten-day suspension to arbitration. The applicant also filed a complaint against CUPE Local 79 pursuant to section 74 of the Ontario Labour Relations Act in regards to the failure to refer the grievance to arbitration. At the time of the teleconference hearing of this Application, the section 74 complaint was ongoing (2011 CanLII 73090).
3The Tribunal ordered a Summary Hearing to determine whether the Application should be dismissed on the basis that there is no reasonable prospect that it would succeed. In the Case Assessment Directive (“CAD”) issued on April 26, 2011, the applicant was told that he should also be prepared to address the submission of the respondent that the personal respondent should be removed as a named party in the Application.
4The applicant did not pursue his allegation of reprisal or threat of reprisal at the teleconference hearing.
Submissions on removal of personal respondent
5The respondents submitted that Mr. Kidd should be removed as a personal respondent because he was acting in his capacity as a union officer. The respondents submitted that there were no allegations in the Application that he was acting independently from Local 79 in his dealings with the applicant. In addition, the respondents submitted that there was nothing alleged in the Application that if proven would support a personal remedy against Mr. Kidd. The respondents also submitted that no prejudice would result from his removal as a respondent.
6The applicant disagreed and said that the personal respondent was the one who was responsible for the discriminatory actions against him.
Submissions on no reasonable prospect of success
7The applicant submitted that he was not given any reason for his removal from his position as a steward or from the human rights committee. He stated that he felt that he had been discriminated against and should be treated the same as everyone else. He submitted that white employees were not treated in the way he had been treated. He also stated that Mr. Kidd “made a face” and looked at him in a certain way.
8The applicant submitted that there was a basis for referring his ten-day suspension to arbitration and he was not given any reasons for the decision of Local 79 not to proceed to arbitration.
9The applicant stated that he feels that he has been discriminated against and was not treated with respect and dignity.
10The respondents submitted that the applicant did not allege any facts that connected the allegations in his Application to a prohibited ground of discrimination. The respondents submitted that the applicant had not established a link between the way he was treated and discrimination on the basis of race. The respondents also submitted that the applicant had been given reasons for his removal from the steward position and from the human rights committee.
Analysis and Decision
11For the reasons that follow, I have dismissed the Application.
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.
13Section 6 of the Code prohibits unequal treatment with respect to membership in a trade union on the grounds of, among other things, race. I find no reasonable basis on which the Union’s actions towards the applicant could be considered unequal treatment on the basis of his race.
14The decision of Local 79 not to refer