Race v. General Motors of Canada Limited, 2011 HRTO 24

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donna Race

Applicant

-and-

General Motors of Canada Limited

Respondent

AND B E T W E E N:

Donna Race

Applicant

-and-

Canadian Auto Workers, Local 222

Bill MacIsaac and Steve Hambly

Respondents

decision

Adjudicator: Janice Sandomirsky

Date: January 5, 2011

Citation: 2011 HRTO 24

Indexed as: Race v. General Motors of Canada:

Race v. Canadian Auto Workers

appearances BY

Donna Race, Applicant ) Self-represented

General Motors of Canada Limited ) David J. Bannon,

) Counsel

Canadian Auto Workers Local 222 ) Farah Baloo, Laura Johnson

) Counsel

Bill MacIsaac, Steve Hambly ) Self-represented

)

1These two Applications were filed under s. 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”) on June 28, 2009. The underlying complaints were both filed with the Ontario Human Rights Commission (the “Commission”) on March 17, 2007, and abandoned upon the filing of the Applications with the Tribunal.

2As these are transition Applications, section 53(5) of the Code limits the Tribunal’s jurisdiction to the subject-matter of the complaint originally filed with the Commission. In the Application against General Motors of Canada Limited (“GMCL”), the applicant alleges discrimination in her employment. The only grounds of discrimination incorporated into the original complaint were disability and sex. Similarly, the Application against the Canadian Auto Workers, Local 222, (“CAW”), Bill MacIsaac and Steve Hambly, alleges discrimination in vocational association, and the only grounds of discrimination incorporated into the original complaint were disability and sex.

3The scope of the Applications was discussed and confirmed in Interim Decision 2010 HRTO 1403, in response to the CAW’s Request for Order seeking dismissal of the Application against the union on the basis of a lack of jurisdiction and no prima facie case. The decision noted that the “underlying self-drafted portion of the complaint also alleged sexual harassment, harassment and reprisals/retaliation” but these grounds were “not incorporated into the complaint as accepted for filing by the Commission, and so do not form part of the subject-matter of the complaint which forms the basis of the Application against the CAW.” Given that the complaint against GMCL included the identical self-drafted portion, for the same reasons identified in the Interim Decision, the applicant’s allegations of sexual harassment, harassment and reprisals/retaliation, were not incorporated into the complaint and do not form part of the subject-matter of the Application against GMCL.

4As the two Applications set out identical facts and issues, with the addition of two paragraphs specific to the CAW complaint, the Tribunal determined that it would hear them together.

5The CAW advised the Tribunal that it did not represent the individual respondents. They responded to the Application on their own behalf.

6The hearing of both Applications was commenced on July 23, 2010. The applicant and her two witnesses, Tom Rotella and Richard Stolk, testified at the hearing. Following the applicant’s presentation of her case, the respondents requested that the Tribunal dismiss the Applications on the basis that the applicant failed to establish a prima facie case of discrimination. The parties filed written submissions on this issue.

BACKGROUND

The Complaint

7The applicant has been employed by GMLC as an assembly line worker since 1988. She has worked at the Oshawa location since 2002. In June 2006, the applicant complained that the radio played by co-workers in her area was too loud and that the excessive noise was affecting her hearing. She alleged that she was subjected to harassment, insulting personal comments and threats from co-workers when she requested that the music be turned down. Her complaint to the Commission outlined meetings that were held with representatives of the employer and the union in response to the noise complaints. Her position was that the employer and union failed to investigate and take appropriate actions in relation to her complaints. The applicant claimed that she lost time from work as a result of these events and continued to experience hearing, throat and voice problems.

The Testimony

8At the hearing, the applicant testified that on June 14, 2006, she asked her co-worker, Bill MacIsaac, to turn down the volume of the radio and he refused. She asked for help from her health and safety representative. She stated that the next day Steve Hambly, another co-worker, came into her work area and verbally abused her about the radio complaints. There was a meeting with the foreman, general foreman and health and safety representative about the radio volume. The applicant informed them that she was experiencing a hearing problem and voice strain. In response to the complaint, Mr. Hambly was told by the foreman to stay away from the applicant and the general foreman removed the radio. The applicant stated that she got a lot of stares from co-workers but mostly from Mr. MacIsaac.

9The applicant was away from the workplace between June 19 and July 17 due to a combination of events including attendance at a union training course on harassment, vacation and a plant shut down. The applicant stated that she was subjected to ongoing harassment and taunting from Mr. MacIsaac after her return to work on July 20.

10The problem became so severe that on September 13 the applicant asked again to speak with the health and safety representative. He came to her work station to review the situation and advised everyone that the radio was a privilege not a right. Her co-workers were upset over this. She claimed that Mr. Hambly then called her a “bitch”. She went to the union office to complain. Mr. MacIsaac and Mr. Hambly were all put on notice of possible discipline pending further investigation.

11On September 18, the applicant met with employer and union human rights representatives and informed them of her problems with the radio volume and its effects on her hearing, voice and throat strain. On September 19 she took the day off to see her doctor about the ringing in her ears and the harassment at work. He filed a claim with the Workplace Safety and Insurance Board (“WSIB”).

12On September 20, there was a meeting with the union human rights representative, a union representative, the plant manager and her union committee person and an agreement was reached on the level of the radio. The volume dial of the radio was marked at the maximum allowable level. The manager advised that anyone harassing the applicant, or being uncooperative, would be disciplined.

13On November 17, the applicant stated that she saw a medical specialist about her hearing loss and voice concerns. She testified that she was told by the specialist that she had some hearing loss and throat strain.

14The applicant confirmed in her testimony that there were numerous meetings with the union and human resources representative about the radio noise issue. Nonetheless, she felt it became more difficult to go to work. She believed that things were being said behind her back and she was the subject of personal comments and verbal attacks. She described it as a poisoned workplace.

15The employer and union human rights representatives undertook an investigation into her harassment complaints. They interviewed a number of witnesses. It was concluded that there was a personality clash with both parties at fault. The applicant was offered the opportunity to move from the work area but she declined.

16The applicant felt that she did not receive assistance dealing with the harassing comments by her co-workers, in particular Mr. MacIsaac. She stated that he would taunt her and turn up the radio to harass her when the supervisor was not around. She also stated that she lost time from work because of her hearing and throat concerns. She felt that she was being harassed because she was a female employee in the body shop area.

17When questioned by GMCL, the applicant confirmed that she was satisfied with the decision to mark the volume dial on the radio but she felt the agreement was not lived up to. When asked if Mr. Hambly apologized for his comment to her, she said it was not an apology but he did stop her after lunch and said “what happened over there – lets forget about it – I was having a bad day – nobody should have been spoken to in that way.”

18When questioned by the CAW, the applicant confirmed that her complaint against the union was that it did not resolve the problem with the radio volume and co-worker’s harassment. She agreed, however, that the CAW made several attempts to resolve the situation and there was an agreement reached on the radio volume issue.

19Mr. Stolk, a co-worker, testified on behalf of the applicant. He worked in the same area as the parties. He recalled an issue with the radio volume. He testified that the applicant came to his work station to avoid tension when there was a space in the line. He only knew what the applicant told him about the problem. He was aware that the employer tested the noise level and it was found to be 83 decibels which was below the allowable noise level. Mr. Stolk was involved in one meeting with the employer and union representatives about the radio volume and problems between the parties. He did not know the outcome. He testified that he saw Mr. MacIsaac taunting and making teasing jesters at the applicant.

20Mr. Rotella also testified on behalf of the applicant. He worked in the same area and was aware of the concerns about the volume of the radio. He testified that Mr. MacIsaac taunted the applicant. He stated that Mr. MacIsaac would ride on the back of a car and stare at her trying to get her to make eye contact. He also put up a garbage can to hide from her. This took place over the course of a couple of weeks and finally the union and employer called a meeting of all the employees and asked what was going on. Mr. Rotella testified that nothing permanent was done to resolve the problem. He believed that steps should have been taken to stop the conflict between the two employees. He was not involved in any of the meetings or investigations.

ANALYSIS AND DECISION

21After hearing the evidence offered by the applicant, the respondents asked the Tribunal to dismiss the Applications on the basis that the applicant failed to establish a prima facie case of discrimination under the Code.

22GMCL submitted that the allegations made by the applicant, even if accepted to be true, do not support the claim of discrimination on the basis of disability or sex. First, it noted that the applicant supplied absolutely no medical documentation supporting the existence of any disability. The applicant claimed that she saw a doctor about a hearing problem and filed a claim with the WSIB, but in her testimony advised that the claim was not approved. When questioned further about this claim, the applicant testified that her hearing returned to normal and the condition was temporary.

23Second, GMCL submitted that the basis of the applicant’s complaint was over a disagreement about the volume of a radio. When the applicant was specifically asked about how she was discriminated against on the basis of sex, she responded by stating that she was the only female working on the line at the time. GMCL argued that the applicant did not in any way relate the dispute, or the conduct she complained about, to the fact that she was a female or the only female in the work area.

24The CAW also submitted that the applicant failed to establish a prima facie case of discrimination. There was no allegation that the union treated her differently from anyone else in the union or failed to act adequately in response to her complaints because of her sex or disability. The CAW noted that, according to the applicant’s complaint and evidence presented at the hearing, union representatives met with her on a number of occasions to attempt to resolve her complaints about excessive noise in the workplace. The applicant agreed that the union addressed her complaint promptly, offered to have her moved to another work area, conducted decibel readings to measure the radio noise level and attempted to find a resolution to the dispute by marking the radio at an acceptable level for everyone. She also agreed that union representatives, including the human rights representative, investigated her allegations that she was being “harassed” by fellow employees, including conducting interviews of all co-workers and potential witnesses identified by the applicant.

25At its highest level, the CAW submitted, the applicant’s case against the union was that it failed to represent her properly. Although it tried to resolve her dispute with co-workers about radio volumes and investigate her allegations of “harassment” by co-workers, the union was ultimately unable to reach a resolution that satisfied her. The CAW relied on the decision of Traversy v. Mississauga Professional Fire Fighters’ Association 2009 HRTO 996, where the Tribunal confirmed that absent any factual basis establishing differential treatment, a failure by a union to act does not, by itself, amount to discrimination.

26In the case of Jagait v. IN TECH Risk Management, 2009 HRTO 779, the Tribunal set out the appropriate test for determining whether an applicant has established a prima facie case, at paragraphs 18 and 19:

The onus is on the applicant to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant's favour in the absence of an answer from the respondent: see Ontario Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (S.C.C.), at para. 28. Upon establishing a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that its actions were not discriminatory.

It is well-established that the threshold for establishing a prima facie case of discrimination is not high, discrimination is often not overt, the employer may have knowledge of facts or possess evidence of discrimination that is not accessible to an employee whose employment is terminated, and that in many, if not most, cases the burden will shift to the respondent to provide a non-discriminatory reason for its actions. On the other hand, where the applicant has failed to establish a prima facie case, it is neither legally correct nor, in my view, fair, just and expeditious to shift the burden to the respondent to provide a non-discriminatory reason for its actions. In the case at hand, I am not satisfied, after hearing the applicant’s evidence, that she has established a prima facie case of discrimination.

27As noted in Potvin v. Hydro One Networks, 2009 HRTO 2123, in assessing whether the applicant has met the burden of establishing a prima facie case of discrimination, the starting point must be her allegations and the nature of discrimination alleged: “… in order to find discrimination, the Tribunal must be satisfied both that an applicant experienced adverse treatment in relation to others, and that it was based on a ground enumerated in the Code, such as in this case gender.”

28The focus of the applicant’s complaint in this case was the volume of the radio near her work station. She asked the employer and union to address this concern. She alleges that the employer and union failed to take appropriate steps to investigate and resolve her complaint and her co-workers harassed her because she complained.

29I find that the applicant’s allegations, even if accepted to be true, would not establish a violation of the Code. The evidence presented by the applicant does not support the claim that the employer and union failed to respond to her concerns. On the contrary, her evidence was that the employer and union representatives met with her on a number of different occasions and attempted to resolve her compliant about excessive noise in the workplace. The allegation that the respondents may have failed to find a satisfactory resolution is not, in and of itself, sufficient to support a claim of discrimination.

30As outlined in the Potvin decision, to find discrimination on the basis of sex, “the applicant must still show how her particular experience supports a conclusion that the respondent has discriminated against her because she is a woman.” The fact that she is a woman and her co-workers are men does not in and of itself support an inference of discrimination on the basis of sex.

31Even accepting that the co-workers reacted negatively to her complaints about the radio and made insulting personal comments when she requested that the music be turned down, I find that during the time period that was incorporated into these Applications, the evidence does not support her allegations that the comments and actions of her co-worker amounted to discrimination. The only specific comment in relation to the applicant’s sex was Mr. Hambly calling her a “bitch” on one occasion. The Tribunal has accepted that in some circumstances a single incident or event might support a finding of discrimination. In the case of Romano v. 1577118 Ontario Inc., 2008 HRTO 9, it was found that a single explicit demeaning remark attacking the dignity and self-respect of the applicant based on her gender, detrimentally affected her “with respect to” her employment, within the meaning of section 5 of the Code. Given the applicant’s evidence in this case, however, that Mr. Hambly recognized that his comment was inappropriate and essentially retracted, I do not find that the single comment supports the allegation that the applicant was discriminated against on the basis of her sex.

32Furthermore, in reviewing the allegation of discrimination on the basis of disability, the applicant presented no medical evidence supporting the claim that she suffered from a disability. In the circumstances, without evidence that she had a disability, there is no basis to the claim that she was discriminated against on that ground.

33I appreciate that the events before me in these Applications were part of a larger picture that started before and continued after the time frame captured by these Applications and frozen by the transitional rules. I have no jurisdiction to consider these earlier or later events. And, while the applicant was clearly upset about what took place in relation to her complaints about the radio volume in the workplace, the Tribunal does not have jurisdiction to remedy general claims of unfairness or mistreatment which are not based on a prohibited ground of discrimination under the Code.

34As a result, I find that the applicant failed to make out a prima facie case and the Applications are dismissed.