Probation Officers of Newmarket v. Ontario (Children and Youth Services), 2011 HRTO 47

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

The Probation Officers of Newmarket on behalf of Ron Adams, Helga Mayer-Habal, John Martin and Lesley Barclay

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Children and Youth Services

Respondent

DECISION

Adjudicator: Kathleen Martin

Date: January 6, 2011

Citation: 2011 HRTO 47

Indexed as: Probation Officers of Newmarket v. Ontario (Children and Youth Services)

1This is an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), filed on May 13, 2010. The Application alleges discrimination on the basis of contracts (without a ground being specified) and reprisal. This Decision addresses the Tribunal’s jurisdiction to hear the Application.

2The Application arises out of collective bargaining for employees who work in “corrections” including correctional officers, youth service officers and probation officers. The Application alleges that during bargaining, the respondent (which was originally identified as the Province of Ontario) was concerned about attendance problems in the Correctional Unit and as a result proposed a new attendance support and management pilot program (the “Program”). The Program included monetary incentives for attendance. The applicant, or purported applicant, alleges that subsequent to bargaining, the respondent implemented a version of the Program for probation officers that did not include the monetary incentives that it gives to the corrections officers and youth service officers. The probation officers argue that this treatment of probation officers is discriminatory although apart from specifying reprisal no ground of discrimination is alleged.

3On June 21, 2010, the Tribunal confirmed receipt of the Application by letter to the applicant and identified various issues with respect to the Application including the status of the applicant (and whether individuals had provided their consent to an application being filed on their behalf) and the identification of the respondent. The applicant subsequently filed a Form 4 (Application on Behalf of Another Person) in respect of four persons identified as probation officers. In addition, the applicant identified the contact person for the respondent as the assistant deputy minister for the named Ministry.

4There remain some procedural concerns with respect to whether the claimants on whose behalf this Application is filed have provided their consents in the proper form to the organization that brings the application (or perhaps applications) on their behalf or behalves. It appears, however, that four individuals have signed a Form 4 or Forms 4’s with the intention of providing their consent to an organization, namely The Probation Officers of Newmarket, to bring applications, or more likely a single application jointly, on their behalves. While I am not convinced the issue has been fully addressed by the Form 4’s filed, I have assumed, without deciding, that the Application has been properly filed for purposes of the Decision below as the issue of applicant party status would not affect my determination of jurisdiction.

5With respect to the identity of the respondent, having regard to the material filed, I have assumed that the applicant’s intention was to name the Ministry as the respondent.

6On September 17, 2010, the Tribunal issued a Notice of Intent to Dismiss. In the Notice the Tribunal stated that it appeared that the Application was outside of the Tribunal’s jurisdiction because the completed Application does not allege a ground or area of discrimination under the Code and while the applicant alleges “reprisal or threat of reprisal”, the applicant has failed to explain how the respondent’s behaviour relates to scope of the reprisal provisions in the Code.

7On October 20, 2010, the Tribunal received submissions from the applicant. The applicant reiterates the basis of its Application alleging that the probation officers are being discriminated against because they are not receiving the monetary incentives given to guards and correctional officers who are “members of the same Bargaining Unit as Probation Officers”. In addition to the foregoing, the applicant expresses a concern that discrimination or harassment has to be compartmentalized to “fit a ‘code’”.

DECISION

8The Tribunal does not have a general power to inquire into general claims of unfair treatment in employment. Its jurisdiction is based on the Code, which prohibits discrimination in contracts on the basis of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability. Further, section 8 of the Code, which prohibits reprisals or threat of reprisals, states:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal.

9The applicant does not allege that the respondent’s behaviour was in response to any of the following:

• Claiming or enforcing a right under the Code;

• Instituting or participating in proceedings under the Code; or

• Refusing to infringe the right of another person.

10Moreover, the applicant has identified no other ground of discrimination or basis upon which the applicant alleges that the Code was violated. Accordingly, the Tribunal has no jurisdiction over this Application.

11This Application is dismissed.