Latronico v. York Region District School Board, 2011 HRTO 985

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Vincenzo Latronico Applicant

-and-

York Region District School Board, Isagani Paz, David Lutz, and Dan Hunter Respondents

AND B E T W E E N:

Vincenzo Latronico Applicant

-and-

Canadian Union of Public Employees, Local 1196 Respondent

interim decision

Adjudicator: Judith Hinchman

Date: May 24, 2011

Citation: 2011 HRTO 985

Indexed as: Latronico v. York Region District School Board

APPEARANCES

Vincent Latronico, Applicant ) Self-represented

York Region District School Board, ) Andrew Zabrovsky, Isagani Paz, David Lutz, and Dan Hunter, ) Counsel Respondents )

Canadian Union of Public Employees, Local 1196, ) Elizabeth Nurse, Respondent ) Counsel

1These Applications were filed in May 2008 under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying human rights complaints were filed with the Ontario Human Rights Commission in April 2007 and abandoned upon filing the Applications with the Tribunal.

2The Applications against CUPE Local 1196 (the “Union Application”) and the York Region District School Board, Isagani Paz, David Lutz, and Dan Hunter (the “York Region Application”) allege discrimination on the basis of sex, ancestry, colour, ethnic origin, place of origin, race, reprisal, and sexual solicitation with respect to membership in a union and employment, respectively.

3Following four hearing days and at the conclusion of the applicant’s evidence in support of both Applications, the Union requested that the Tribunal dismiss the Union Application on the basis that the applicant had not established a prima facie case of discrimination to which they must respond. Following the parties’ submissions, I ruled that the Union Application would be dismissed, as the applicant had not met his onus to establish a prima facie case of discrimination. I indicated that reasons would follow.

4Similarly, at a subsequent hearing date, the respondents to the York Region Application requested that the Tribunal dismiss the York Region Application on the basis that the applicant had not established a prima facie case of discrimination to which they must respond. I have decided that some of the allegations made in this Application should be dismissed.

5This Interim Decision provides my reasons with respect to the requests to dismiss both Applications as well as my decision regarding a preliminary issue raised by the applicant alleging that the York Region respondents withheld or destroyed certain video evidence.

BACKGROUND

6On February 20, 2006 the respondent York Region District School Board (the “Employer”) hired the applicant as a temporary employee. On June 30, 2006, he became a full-time probationary caretaker assigned to the MacKenzie Glen Public School. His probationary period was 60 days.

7At that time, Craig Smith was his foreman, Laird Underwood was the Assistant Manager of Caretaking (whose responsibilities included MacKenzie Glen Public School), Brad McPeak was the Supervisor of Facility Services at Maple High School and five feeder elementary schools (including MacKenzie Glen), Peter Souvran was Principal of MacKenzie Glen, Kevin McBean was the Employer’s Manager of Caretaking Services, and Jack Botts was the applicant’s Union representative.

8Following an incident that occurred on September 5, 2006 between the applicant and another Caretaker, Isagani Paz (the “MacKenzie Glen incident”), the applicant was transferred to Maple High School. While there, Jeff Hartung was the Lead Caretaker and the applicant’s supervisor. During this period, the applicant’s probation was extended by 40 days.

9On September 26, 2006, the applicant was transferred to Unionville High School. At that time, David Lutz was the Lead Caretaker at Unionville High School, Dan Hunter was the Employer’s Supervisor of Facility Services, and Jude Carberry was an Assistant Manager of Caretaking for York Region, whose responsibilities included Unionville High School.

10On October 11, 2006, fellow Caretaker and Union Interim Chief Steward Debbie Carson was asked to attend Unionville High School to assist the applicant at a meeting. The applicant did not attend at work following that date. On October 27, 2006, in a meeting with management and Union representatives Ms. Carson and Mary Cromwell, the applicant’s employment was terminated.

11The narrative provided by the applicant in the two Applications is identical. The essence of the York Region Application is that co-workers and management discriminated against him due to his Italian heritage through discriminatory remarks and differential treatment, Mr. Paz called him a “wop”, sexually harassed and assaulted him, and management did not properly investigate the applicant’s complaints. He claims that the Employer reprised against him for raising the complaint about Mr. Paz by transferring him out of MacKenzie Glen, extending his probation, discriminating against him when he was a caretaker at Unionville High School through an unfair workload, bullying tactics, false performance reviews, and ultimately by terminating his employment. The essence of the Union Application is that the Union did not adequately help the applicant in dealing with his allegations of discrimination against the Employer and co-workers, the extension of his probation, or ultimately his dismissal.

PRELIMINARY ISSUE REGARDING VIDEO EVIDENCE

12The applicant asserts that a video of the MacKenzie Glen incident either exists and is being withheld from him or was purposely destroyed by the York Region respondents. The applicant contends that this recording would prove his allegation that Mr. Paz sexually assaulted and threatened him.

13After hearing oral evidence on this discreet issue, I am persuaded that any recording of this incident created on the MacKenzie Glen surveillance system was written over in the normal course of business and not intentionally destroyed. Thus, I find that there is no physical recording of the incident and I do not find a basis to conclude that the respondents improperly destroyed or withheld surveillance video.

14Mr. Souvran testified that shortly after the incident, Mr. Underwood informed him that there had been an incident between two staff members who had different stories. He instructed Mr. Souvran to allow Mr. McPeak to review the surveillance of the incident. Both Mr. Souvran and Mr. McPeak testified that within a day or two of the incident, they viewed the surveillance footage several times.

15Mr. Souvran testified that he was required to view surveillance approximately once or twice each month to assist in school investigations. He stated that he did not erase the relevant footage or remove anything from the surveillance-monitoring machine. He also testified that he made notes after viewing the footage, as was his practice. He testified that none of his superiors requested that a copy be made.

16Mr. McPeak testified that he did not make any hard copy of the incident footage and he does not recall the applicant asking him to do so. He indicated that this was not an intentional omission because he was simply asked to view the incident footage and report his observations to Mr. Underwood, which he did by email.

17David Neale at the relevant time held the position of Senior Manager of Administrative Services. Mr. Neale’s duties included security within the schools. Mr. Neale testified that in 2006, in elementary schools like MacKenzie Glen, a DX7000 Pelco surveillance system was used. The system had the capability to record input from up to sixteen cameras. Mr. Neale reviewed a diagram of MacKenzie Glen and confirmed the location of 13 interior (three on the second floor and ten on the first floor) and three exterior cameras at that time. He also testified that it was illegal to have cameras in the bathrooms and that there was no camera in the caretakers’ lounge. The system did not record audio.

18The surveillance system was designed to retain video for approximately 30 days. The recording system looped so that after approximately that amount of time, previous memory was overwritten. The time varied because some of the cameras required motion to trigger recording.

19Although a school administrator or someone in charge of a system on site could request that a hard copy of a particular video sequence be produced, these requests usually occurred during police criminal investigations or when secondary school vice-principals investigated a student disciplinary matter. In those situations, a contractor would be sent to a particular site to make hard copy videotape from the system memory.

20Mr. Neale testified that no one contacted him after the September 2006 MacKenzie Glen incident to ask for assistance with the surveillance system or to request that a videotape be produced of the relevant footage.

21Although the applicant submitted a letter dated October 13, 2006 to Ms. Cromwell in her Union capacity, there is no evidence that she asked for a video. At any rate, had she done so, October 13^th is beyond the 30-day period when the footage would have been overwritten.

22Each of these three witnesses’ testimony was consistent and logical in the circumstances. I find that it was not routine to make hard copies of the footage, the regular viewing procedure for a non-police investigated incident was followed, and it appears that the footage was eventually recorded over in the normal course of looping. I am persuaded and find that no hard copy of the incident footage was ever created. It follows, therefore, that no hard copy was destroyed or withheld.

23Furthermore, as discussed below there is no evidence that at the time of the incident, the applicant complained that a sexual assault had occurred. The evidence also is that the police did not choose to further investigate the incident. As a result, there is no evidence to suggest that there was at that time a positive obligation for the school to retain a hard copy of the footage. The incident was dealt with internally and the surveillance footage was dealt with customarily.

MOTION TO DISMISS FOR FAILURE TO ESTABLISH PRIMA FACIE CASE

24It is well established in human rights law that the onus is on an applicant to establish a prima facie case of discrimination. In Ontario (Human Rights Commission) v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 SCR 536 at para. 28, a prima facie case was described as 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.

25In Potvin v. Hydro One Networks, 2009 HRTO 2123, the Tribunal reviewed cases where it considered the issue of whether to consider if an applicant has presented a prima facie case of discrimination requiring a response from the respondent at various stages in a proceeding including: at the outset as a preliminary matter before any evidence is heard, after hearing only the applicant’s evidence, or after hearing from all parties. See Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 and Jagait v. IN TECH Risk Management, 2009 HRTO 779.

26In order to find discrimination, the Tribunal must be satisfied both that the applicant experienced adverse treatment in relation to others and that it was based on a ground enumerated in the Code. See Potvin, supra, also discussing Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 SCR 143. Although the threshold for establishing a prima facie case of discrimination is not high, where the applicant has failed to do so, the Tribunal stated in Jagait, supra, “it is neither legally correct nor, …fair, just, and expeditious to shift the burden to the respondent to provide a non-discriminatory reason for its actions.” I agree with this approach.

27Second, in an employment context, “merely establishing that one has been mistreated and that one identifies with one or more prohibited grounds under the Code will [not] suffice to make out a prima facie case.” See Sosoo v. Winners Merchants, 2010 HRTO 1367 at para. 71. The Tribunal in Sosoo noted that to approach this otherwise would result in “every single employee who experienced any kind of mistreatment” having a prima facie case of discrimination under the Code, because “everyone identifies with one or more Code grounds just by virtue of her humanity.”

28In Sosoo, the Tribunal also stated that someone’s belief that he or she is the target of discrimination is insufficient. There must be objective evidence of discrimination. “Nor is it open to the Tribunal to make findings based on mere assumptions”: Sosoo, supra at para. 79.

29Another principle established by the Tribunal that I adopt is that when deciding if the applicant has set out sufficient particulars of differential treatment, I may consider if the applicant’s evidence is credible. Where it is illogical or internally inconsistent, or otherwise not credible I may choose to find that evidence not credible and thus not supportive of the applicant’s allegations. See Jagait, supra, at para. 20.

30Assessing credibility involves the consideration of a variety of factors. The Tribunal has applied the factors and approach followed by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354 (BCCA), which include considering a witness’ opportunities for knowledge, powers of observation, judgment and memory, and ability to describe clearly what he has seen and heard. In addition, the court stated:

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

31Other factors the Tribunal has applied as relevant in assessing credibility include corroborative evidence from other witnesses, and the extent to which witnesses may have an interest in the outcome of the case, or have self-interest in testifying for one of the parties See Shah v. George Brown College, 2009 HRTO 920. Also, in determining whether a party has met its burden of proof, the failure to call a witness who has material and direct knowledge of the disputed facts may allow the Tribunal to draw an adverse inference that the party did not call a particular witness because the witness would not have been supportive to that party’s case.

APPLICABLE CODE PROVISIONS

32The applicant’s evidence must establish a credible foundation upon which the Tribunal can find not only that he was mistreated but that he was mistreated on the basis of a prohibited ground.

33Section 5 of the Code states:

(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.

34Section 6 of the Code states:

Every person has a right to equal treatment with respect to membership in any trade union, trade or occupational association or self-governing profession without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

35Section 7 (3) of the Code states:

Every person has a right to be free from,

(a) a sexual solicitation or advance made by a person in a position to confer grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or

(b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.

36Section 8 of the Code 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 for so doing.

SCOPE OF THE APPLICANT’S ALLEGATIONS AND EVIDENCE

37Several Interim Decisions and two Case Assessment Directions addressed the proper scope of these Applications. An Interim Decision dated May 5, 2010, 2010 HRTO 1000, addressed the scope of the Union Application and identified new allegations that were not properly part of that Application. New allegations claiming Union representatives engaged in racial name calling or used derogatory terms about the applicant or others were found not to be properly within the scope of the Union Application. Likewise, in Interim Decision dated October 29, 2009, 2009 HRTO 1803, the Tribunal addressed the scope of the York Region Application.

38Prior to the hearing in this matter, in written submissions, the applicant attempted to expand the scope of his allegations well beyond the underlying Complaints. And from time to time while testifying, the applicant attempted to add allegations outside the scope of the Applications including allegations that Mr. Botts called him a dumb “wop” and said he had spaghetti for brains, and that Mr. Paz told him that the mafia fixed the World Cup and pestered him into buying a pizza.

39The applicant’s evidence in the instant proceeding was heard over a four-day period. In addition, the applicant submitted a 97-page witness statement and a typed transcription that he prepared of conversations he allegedly taped along with his written commentary about those alleged conversations. With respect to the 97-page witness statement, as per my direction in the hearing, I have considered only the content that falls within the scope of these Applications as delineated in the previous Interim Decisions. With respect to the audio tapes and typed transcription, I have commented on them where appropriate in my Decision.

40The applicant listed in his original Complaints discrimination based on sex, ancestry, colour, ethnic origin, place of origin, race, and sexual solicitation. He later added reprisal. On the first day of the hearing, the applicant clarified that he is not asserting discrimination based on his gender. In fact, he has made no allegations or presented any evidence that he was so discriminated. I am satisfied that there is no issue of discrimination based on gender. With respect to the grounds of ancestry, colour, ethnic origin, place of origin, and race, the applicant’s allegations and evidence deal with these intersectionally and he has indicated these identified grounds refer to his Italian heritage. The applicant’s allegations are thus that he was discriminated against on the basis of his Italian heritage and through sexual solicitation and sexual harassment, and from reprisal.

ANALYSIS OF ALLEGATIONS AGAINST THE EMPLOYER

41For the purposes of my Decision, I have placed the applicant’s allegations into categories and for the reasons articulated find that:

a. The allegation that Mr. Paz sexually harassed the applicant on September 5, 2006 during the MacKenzie Glen incident is dismissed for lack of prima facie case.

b. The other allegations against Mr. Paz during the applicant’s employment at MacKenzie Glen School, are not dismissed at this time and Mr. Paz will be required to respond to those allegations, namely the allegations that Mr. Paz made sexual advances towards him and that Mr. Paz called him a “wop”.

c. The allegations that the Employer did not investigate the applicant’s complaints that Mr. Paz sexually solicited the applicant during his employment at MacKenzie Glen or that Mr. Paz sexually harassed the applicant during the MacKenzie Glen incident are dismissed for lack of prima facie case.

d. The allegation that the Employer did not investigate the applicant’s complaints that Mr. Paz made discriminatory comments regarding the applicant’s Italian heritage by calling him a wop during the MacKenzie Glen incident is not dismissed at this time and the Employer will be required to respond to this allegation.

e. The allegations that the Employer made discriminatory comments to the applicant during meetings held on September 6^th and 18^th is dismissed for lack of prima facie case.

f. The allegations that during the applicant’s employment at Unionville High School, Mr. Hunter and Mr. Lutz discriminated against the applicant based on his Italian heritage or reprised against him are dismissed for lack of prima facie case.

g. The allegation that the Employer reprised against the applicant for raising his Code-related rights (when he complained about Mr. Paz calling him a wop) by instructing Mr. Hunter and Mr. Lutz to harass him is dismissed for lack of prima facie case.

h. The allegations that the Employer reprised against the applicant for raising his Code-related rights (when he complained about Mr. Paz calling him a wop) by transferring him out of MacKenzie Glen, extending his probation, and dismissing his employment will not be dismissed and the Employer will be required to respond to these allegations.

i. All allegations against the Union are dismissed for lack of prima facie case.

Allegations against Mr. Paz during the applicant’s employment at MacKenzie Glen

42The essence of the applicant’s allegations against Mr. Paz as outlined in his Applications is that Mr. Paz, a fellow caretaker, made sexual advances towards him in July, August, and September of 2006, and behaved negatively towards him when these advances were rebuffed and on September 5, 2006 during the MacKenzie Glen incident called him “wop” three times and sexually assaulted him.

43In my view, it is appropriate for the respondent Mr. Paz to respond to the allegations that during July, August, and September of 2006, he made sexual advances towards the applicant and that on September 5, 2006, during the MacKenzie Glen incident, he called the applicant a wop three times.

44On the other hand, I find that the applicant’s evidence is not complete and sufficient to justify a finding in his favour, even in the absence of an answer from Mr. Paz, that Mr. Paz sexually assaulted him during the MacKenzie Glen incident, which allegedly occurred on September 5^th. The following are my reasons.

45The applicant alleges that during the MacKenzie Glen incident, Mr. Paz sexually assaulted him. It is not disputed that the applicant and Mr. Paz had an argument that evening. The applicant bases his conclusion that Mr. Paz sexually assaulted him on the undisputed fact that intentionally or unintentionally, Mr. Paz flung the end of his mop at the applicant and in so doing splashed dirty water from his cleaning pail onto the back of the applicant’s pants. The applicant testified that after that action, Mr. Paz allegedly said “I finally fucked you.” The applicant concluded that Mr. Paz was referring to the water splashed on his pants and that that action was meant to be a sexual assault.

46Other documents that the applicant entered into evidence include notes made by Mr. Souvran and Mr. McPeak after they reviewed the surveillance footage of the MacKenzie Glen incident. Mr. McPeak describes the water incident as follows:

When Vince turned to walk away, Isagani pulled his mop from the water and quickly spun around to enter the washroom, flicking water onto Vince,

In neither of those reports does it indicate that the applicant had reported a sexual assault to management. In support of this alleged ‘sexual assault’, the applicant has not alleged or adduced any other evidence beyond the wetting of the back of his pants from the flung water followed by the alleged statement “I finally fucked you”. The Tribunal does not have the jurisdiction to consider a ‘sexual assault’ in the criminal context but rather must determine if the allegation falls within the definition of sexual harassment (see s. 10(1) of the Code). In my view, even accepting that the water was splashed intentionally and that Mr. Paz made that statement, I do not find that this would constitute sexual harassment under the Code. Splashing water on someone is in my view not sexual harassment and the isolated comment made in the heat of an argument is not sexual in nature. This allegation is therefore dismissed.

Allegations that the Employer did not investigate the applicant’s complaints that Mr. Paz sexually solicited the applicant or sexually assaulted him during the MacKenzie Glen incident and that the Union failed to act as well

47In mid-August 2006, the applicant testified that he complained about Mr. Paz to Mr. Smith, who responded saying he would speak to Mr. Paz about a respectful workplace environment. He did not, however, tell Mr. Smith that Mr. Paz was sexually harassing him and the applicant testified that up to this point, he had not reported to anyone his belief that Mr. Paz was sexually soliciting him.

48During the MacKenzie Glen incident, it is not disputed that the applicant called the police. The applicant testified that he talked to Officer Adam Pyke for about ten minutes about the incident. He testified that he did not tell Officer Pyke that he had been sexually assaulted. During cross-examination, however, he changed his testimony to say that he did tell the officer that Mr. Paz had threatened to fuck him up the ass.

49Officer Pyke also testified, and his police report was admitted into evidence. Officer Pyke testified that he responded to a dispatch call and after arriving at the school, he spoke to the applicant. He recalled hearing from the applicant that a co-worker had thrown water on him and followed him into the lunchroom where he threatened to kill him. He then went into the school and talked to Mr. Hartung and Mr. Paz. He concluded that no criminal offense had been committed and the investigation ended. He did not agree that the applicant told him that he had been sexually assaulted or harassed. If so, he testified that that type of serious allegation would have been in his report and further once a sexual assault is raised he is not permitted to continue an investigation but instead must immediately call a supervisor in the sexual assault unit.

50The entirety of Officer Pyke’s report states:

[The applicant] stated that co-worker “Izzy” splashed water on him after a disagreement about what sections of the school to clean. He stated Izzy then followed him into the lunchroom and said he was going to kill him. Stated he was scared but when asked if he wanted to continue work stated yes. Will be dealt with internally.

51The applicant testified that while speaking to Officer Pyke, Mr. Hartung arrived at the school responding to a maintenance call and spoke with the applicant. The applicant testified that he told Mr. Hartung that Mr. Paz had sexually assaulted him and said that he wanted to fuck him up the ass. The applicant believes that Mr. Hartung left this out of an email he wrote the next day to Mr. Underwood and Mr. McPeak because he was instructed to do so, he was trained by the school board, and there was a “cover-up culture.” That email dated September 6, 2006 sent to Mr. Underwood and Mr. McPeak describes the water incident and does not mention any complaint about a sexual assault or even a sexual threat.

52On September 6^th, the day after the incident, the applicant met with Mr. Underwood, Mr. Botts, and Mr. McPeak. The applicant alleges that he told Mr. Underwood what happened during the incident including that Mr. Paz had sexually assaulted him.

53The applicant testified that later he delivered to Mr. Underwood a written account of the incident and events of the summer. His recollection on when this account was written and delivered, however, varies. At one point he stated that after the meeting he went to the library, wrote the letter, placed it in an envelope addressed to Mr. Underwood, and later handed it to him. However, at another time, the applicant stated that he prepared the letter at home and was not exactly sure when he gave it to Mr. Underwood. At any rate, the applicant stated that he did not keep a copy of this letter and the respondents did not produce a copy, disputing it had been delivered to them. Somewhat inconsistently, the applicant did make and retain copies of the letter he alleges he sent to Mr. Botts and letters to other Union representatives (all allegedly written during the same period), none of which include allegations of sexual solicitation or sexual assault.

54With respect to informing the Union about sexual solicitation or sexual assault, the applicant alleges that on September 7^th, he wrote a letter to Mr. Botts requesting a full investigation. The applicant testified that he complained about sexual solicitation and sexual assault in this letter. Yet the letter he has produced does not make these references. The applicant produced a copy of the letter that states in pertinent part:

I feel that I was victimized at the workplace by Mr. Izzy Paz. I wish to request a fully documented investigation by CUPE Local 1196 and the Management of YORK Region District School Board with regards to the incident that occurred the night of September 5, 2006.

55On cross-examination, the applicant stated that Mr. Botts directed him to write the letter but instructed him not include sexual assault or solicitation. Nowhere in the applicant’s previous and lengthy written submissions or earlier in his testimony had he ever suggested that Mr. Botts gave this instruction. I find this inconsistent with his previous evidence and illogical given the applicant’s insistence at the hearing that after the MacKenzie Glen incident he was vehement about his allegations to the Employer and the Union.

56Based on the foregoing, I am not prepared to accept as credible the applicant’s claim that Mr. Botts gave him that instruction or that the applicant informed Mr. Botts of a sexual assault or sexual solicitation.

57I am persuaded that since the time the applicant filed his orginal Complaints, he has embellished in his submissions for this hearing the account of what he told the Employer during the September 6^th meeting, what he told Mr. Hartung, and what he told Officer Pyke. Officer Pyke was a credible witness whose testimony is corroborated by his notes made at the time of the incident. Where his evidence differs from the applicant’s, I prefer Officer Pyke’s evidence.

58I also do not find it credible that the applicant wrote the letter he claims to have written to Mr. Underwood. His story on when and how this letter was written is inconsistent. Furthermore, he saved copies of other letters that he wrote at the same time. While he had the opportunity, in none of those letters does the applicant mention sexual solicitation or sexual assault.

59Finally, the applicant’s original Complaints do not mention sexual assault having occurred during the MacKenzie Glen incident. In his original Complaints, the applicant’s allegations regarding the MacKenzie Glen incident describe an argument, splashed water, and a threat with a knife as well as the traded insults, and that he allegedly informed Mr. Underwood of this on September 6^th. The applicant has been adamant that he complained vehemently at the time of the incident, yet when he had the opportunity, he did not include this serious complaint in his original Complaints.

60I find the applicant’s assertion that he told the Employer, Mr. Hartung, and Officer Pyke about the alleged sexual assault to therefore not be credible. Furthermore, other than the letter he claims he sent to Mr. Underwood that recited the events of the summer, a copy of which he surprising did not maintain, the applicant has not adduced any evidence that he told Mr. Underwood or other management that Mr. Paz had been sexually harassing him over the summer prior to the MacKenzie Glen incident. I have not accepted the applicant’s testimony that he delivered that letter to Mr. Underwood.

61The applicant has not provided any evidence that I accept that he complained to the Employer about a sexual assault or sexual solicitation. In the circumstances, the applicant’s evidence does not demonstrate that the Employer was aware of these allegations and, therefore, its duty to investigate was not triggered.

Allegations that the Employer did not investigate the applicant’s complaints that he was subjected to discriminatory comments regarding his Italian heritage made by Mr. Paz

62On the other hand, in his original Complaint filed in April 2007, the applicant alleged that during the MacKenzie Glen incident Mr. Paz called him a wop three times. The applicant also alleged that he told the Employer this during the September 6, 2006 meeting the day after the event. The applicant alleges that the Employer has not properly investigated his complaint about these discriminatory comments.

63I find that it is not appropriate to dismiss the this allegation for lack of prima facie case and it would be appropriate to hear a response from the Employer.

Allegations that the Employer made discriminatory comments to the applicant during meetings held on September 6 and 18, 2006

64On September 6^th, the day after the MacKenzie Glen incident, the applicant met with Mr. Underwood, Mr. Botts, and Mr. McPeak. The applicant alleges that Mr. Underwood asked the applicant where he lived. The applicant alleges that after he responded that he lived near St. Clair and Dufferin, Mr. Underwood commented there were a lot of flags waving there. The applicant alleges this was a derogatory comment referring to Italian flags and the fact that the Italians had won the FIFA World Cup. The applicant alleges that he could tell from Mr. Underwood’s body language that he had a problem with him because of his Italian heritage.

65The applicant testified that on September 18^th he met with Mr. Underwood, Mr. McPeak, and Mr. Botts’ replacement Rene Bissonette. At the meeting, he was given a letter extending his probation for 40 days because he was told he had been seen outside the school after the MacKenzie Glen Incident wearing only boxer shorts.

66The applicant testified that Mr. Underwood’s real motive for extending his probation was because Italy had won the World Cup and because the applicant was Italian, Mr. Underwood was taking it out on him. To support his conclusion, the applicant alleges that at the September 18^th meeting, Mr. Underwood once again mentioned Italian flags waving on St. Clair during the World Cup.

67Even accepting that Mr. Underwood commented twice on flags flying after Italy won the World Cup, there are no other remarks or comments regarding the applicant’s Italian heritage allegedly attributed to Mr. Underwood. I do not view these comments as derogatory. The mere fact that he made these two comments and the applicant’s assumption regarding Mr. Underwood’s body language is not a sufficient basis upon which to find a Code-related discrimination. See Sosoo, supra.

68The applicant’s evidence is not complete and sufficient to justify a finding in his favour, even in the absence of an answer from York Region, that the Employer made discriminatory comments based on his Italian heritage in the meetings held on September 6^th and 18^th or that his probation was extended for that reason.

Union’s involvement in September 18^th meeting

69The applicant stated that as of September 18^th, he was still waiting for an investigation of Mr. Paz and that he wanted Mr. Paz to be fired or transferred. So following this meeting, the applicant alleges that he called Mr. Botts who told him to stay quiet and that everything would be forgotten. And Mr. Botts advised him not to press the issue of his transfer or probation extension or he would be fired by the Employer. The applicant also alleges that the Union dissuaded him from filing a grievance. The applicant alleges that he then told Mr. Botts he would be pursuing legal action. These allegations against the Union are dealt with at the end of this Interim Decision.

Allegations that at Unionville High School, Mr. Hunter and Mr. Lutz discriminated against the applicant on the basis of his Italian heritage or reprised against him

70On September 26^th, the applicant was transferred to Unionville High School. He alleges that, once there, Mr. Hunter and Mr. Lutz began to harass and bully him under instructions from Mr. Underwood and Mr. McBean. The essence of his allegations is that over the two and a half weeks he worked at Unionville, both Mr. Hunter and Mr. Lutz were overly critical of his work and, without bringing performance deficiencies to his attention, began fabricating negative written assessments to create a false paper trail. He alleges this all stems from his complaint to Mr. Underwood about Mr. Paz. The applicant provided no evidence of any communications between Mr. Underwood or Mr. McBean and Unionville management to support this conclusion.

71The applicant testified that after he first arrived at Unionville, Mr. Hunter and Mr Lutz were not friendly or welcoming. He said that Mr. Hunter did not introduce himself to the applicant and Mr. Lutz did not show him what he expected and did not give him an orientation on “all items,” though that he knew how to clean in general from his first placement at Bayview School.

72The applicant testified that he was assigned to help and follow a caretaker named Lorna. Later he was given his own section. The applicant alleges that the section assigned to him, section 2, was too large and that on evenings when the cleaning staff was short it was especially difficult to complete. He also alleges that Mr. Lutz would sabotage him by taking items from the stockroom and leaving his mop dirty. And finally that Mr. Lutz did not go through his section with him to identify and explain problems. The applicant testified that on October 6^th, he asked Mr. Lutz to meet with him and show him the expectations for his section. He stated that Mr. Lutz refused and said, “Didn’t you take caretaking training.”

73The applicant filed a number of emails written by Mr. Lutz to Mr. Hunter as evidence of vexatious comments and lies. The first statement in one of these emails that the applicant alleges is vexatious is in the context of Mr. Lutz telling Mr. Hunter that the applicant had asked him how to shave off time in order to finish his section on time. Mr. Lutz wrote to Mr. Hunter that he told the applicant that “given the wet fall and busy winter coming up, the amount of cleaning was just going to get worse…welcome to High School.”

74The second example of a vexatious comment that the applicant alleges was intended “to poison” Mr. Hunter’s mind against him was: “[The applicant] asked if I could photo copy the ‘[caretakers guide] for him, I said no just bring me back the original for Monday. He said he was going to photocopy it himself, I said whatever.” Lies are identified as several statements in various emails regarding the applicant’s failure to complete cleaning tasks.

75During cross-examination, the applicant was asked to review daily caretaker training profile training reinforcement sheets that reflect areas requiring further instruction. When asked about specific items checked off as deficiencies, the applicant could not recall if he did or did not do most of the items checked.

76On October 10^th and 11^th, the applicant brought a tape recorder to work and taped various conversations that he had with fellow caretakers during his shifts and with management. He also taped several meetings between him, management, and the Union. The applicant prepared his own typed transcription notes of those tapes that also included his written commentary.

77The applicant alleges that these tapes and his transcription of them prove his allegations with respect to his treatment at Unionville. The respondents object to this evidence as unreliable, unsubstantiated, and for the most part not relevant.

78The tapes are mostly inaudible. After reviewing the applicant’s notes of the alleged conversations, with respect to those held with co-workers occurring during two of his shifts at Unionville on October 10 and 11, I observe that most of the narrative consists of the applicant’s characterization of statements he made to the co-workers. A typical exchange consists of the applicant complaining about his workload and stating that he perceives management to be unfairly picking on him.

79Although he characterized management’s review of his performance as harassment and bullying, he does not attribute that treatment to his Italian heritage and there is no suggestion from his written narrative that any of the other caretakers observed Code-related discrimination or harassment or made any remarks to support that the Employer was reprising against the applicant for pursuing Code-related rights. For the most part, the conversations the applicant alleges occurred amount to the co-workers listening supportively, agreeing that the work is hard, telling him basically to try to get through probation, and suggesting he take his complaints to the Union. The applicant’s use of the word ‘harassment’ in these alleged conversations is his impression only and not evidence of harassment under the Code.

80Four of the caretakers whose conversations were allegedly taped gave evidence as witnesses for the applicant. Andrea Murray did not remember the applicant and in fact had very little recall of the Unionville cleaning sections. She testified that in general her memory is not very good.

81Peter Karaoulis testified that he had worked at Unionville for sixteen years and knew the cleaning sections well. He recalled section 2 as it was in 2006 but couldn’t say that it was a very big section. He testified that everyone is expected to work alone except that if a shift is short staffed, caretakers might work together. He recalled the applicant working at Unionville but could not remember how long he worked there. He could not recall specific conversations that they may have had. And he did not recall that the applicant had been harassed. He also did not recall any rumours about the applicant after he left.

82The third caretaker to testify was Billy Yiouroukis. During the period in 2006 when the applicant worked at Unionville, he did not remember the applicant being bullied or harassed. He also did not recall any specific conversations with the applicant. He described section 2. He also testified that each caretaker had their own section but they might help each other if short staffed. And that if short staffed, he might only do the important items.

83He did agree that probation could be harder but testified that he did not find the caretaker job to be difficult. He did not recall hearing anything about the applicant from Mr. Hunter or Mr. Lutz after he left. Although he did recall that later a rumour came out, he could not provide any details of the rumour.

84The fourth caretaker to testify was Shaun Smith. He did remember working with the applicant for the approximately two to three weeks the applicant was at Unionville. In his view, section 2 was not the largest section. However, it presented the biggest workload due to the presence of night students. He also agreed that if short staffed, the caretakers would partner up for efficiency. He did not recall the applicant making any comments to him about section 2, although he did recall the applicant asking him for advice regarding cleaning section 2.

85During the eight or nine days they worked together, he did not recall either Mr. Hunter or Mr. Lutz making comments about the applicant’s ethnicity. Nor did he recall any other discriminatory comments. Although he did not observe harassment, he recalls that the applicant told him he had been harassed by management and given too much work. Although he couldn’t remember specifics, he did agree that Mr. Lutz had “pushed” the applicant more than the other caretakers. He clarified that he felt that was probably because the applicant was on probation. He testified that when the applicant did not come to work after October 11^th, the others were told that he had called in sick.

86On October 11^th, the applicant met with Mr. Hunter and Mr. Lutz to review his performance. The applicant testified that during the meeting Mr. Lutz and Mr. Hunter harassed and badgered him about his work. When he told them he felt threatened, Mr. Hunter immediately stopped the meeting and phoned Mr. Carberry who came with Union member Ms. Carson to continue the meeting with union representation.

87Once the meeting reconvened, the applicant testified that he indicated that he did not know the boundaries of his assigned cleaning section 2. As a solution, management agreed to give him a map of section 2. Management also told him he did not need to assist other caretakers if the shift was short staffed, and a plan was developed for going forward. He further alleges that at the meeting, the others told him that he would be required to work in section 2 until his probation was over and that following the meeting he was only given five hours to finish the section, which they made difficult for him to complete. In particular, he alleges that Mr. Lutz refused to help him finish his section even though Mr. Hunter had told him to do so.

88He did not tell Mr. Hunter or Mr. Lutz that he felt their criticisms were reprisals as he was relying on Ms. Carson to do that. He testified that he told Ms. Carson “this is because of MacKenzie Glen.” He did not tell Ms. Carson what he meant by MacKenzie Glen, because he thought she knew. He has offered however no evidence to substantiate that she knew that the MacKenzie Glen incident included allegations of sexual solicitation or sexual assault or other Code-related discrimination. I am not prepared to accept the applicant’s assumption that Ms. Carson was thus apprised of those allegations.

89The applicant submitted a work plan that was created at this meeting. The applicant agrees that the work plan was developed, that it was to be reviewed again in a week, and that a section map was provided to show the boundaries of section 2.

90The applicant alleges that he had a nervous breakdown on October 12^th and never returned to work but instead called in sick.

91On October 13^th, the applicant mailed the following letter to Ms. Cromwell, the President of Union Local 1196:

….

I want to inform you that Dan Hunter and David Lutz are making my life very difficult in order to get me to resign or be fired. No clear outcome was provided by Jude Carberry or Debbie Carson following a meeting, despite them telling me during the meeting that my performance is not up to scratch. It seems to me that Debbie has not heard me at all and doesn’t regard this to be serious, even though I explained to her that my job is in peril. Now I don’t know if she’s working to protect me or what? I’ve been trying to get a hold of her but she hasn’t returned my calls, so that is why I’m writing to you.

Dan and David are bullying and harassing me, setting unrealistic targets or changing targets and not informing me, embarrassing me in front of other employees, constantly undermining my confidence by saying that I lack enthusiasm and common sense to do the job while increasing the work load and hiding my tools and supplies to do the job. They are creating a paper trail so that I won’t pass my probationary period. The situation has stressed me out and I am not sleeping or eating, which is making going to into work a real nightmare. Dan and David are clearly trying to get me to resign or get fired. I am too sick to continue to work under these horrible working conditions.

So I need to see you immediately so that I can go over with you my legal right of working in a Harassment free work environment. So please accept this letter as a formal declaration that I want to charge David Lutz and Dan Hunter with workplace harassment and get transferred out of Unionville High School while an investigation is taking place. I want all video copies of section 2 kept as evidence while I was working there dates of October 2,3,4,5,6,10,11. I also want all copies of file log entries emails that David Lutz and Dan Hunter generated that concerns me. … and copies of all video surveillance of Mackenzie Glen Public School dated September 5, 2006…

92The applicant alleges that on October 23^rd, Ms. Carson informed him that Mr. Carberry was in the process of firing him. He alleges that although he asked to meet with her and Ms. Cromwell, in order to discuss his “defence,” they did not meet with him until “just two minutes” before the meeting on October 27^th where management fired him citing poor performance. At that meeting, the applicant alleges that neither Mr. Carberry nor Mr. Hunter were truthful. He stated that as soon as he said “from the first day I got to Unionville I was harassed,” Mr. Carberry called a recess so he could not continue to speak and the others continued the meeting without him behind closed doors for twenty minutes. For that reason, he claims he did not mention sexual solicitation or sexual assault by Mr. Paz.

93Before the meeting resumed with the applicant, he alleges that he told Ms. Carson and Ms. Cromwell that he had been harassed by Mr. Hunter and Mr. Lutz and that he had brought a voice recorder to prove that. He alleges that he told them that he wanted to present his defence to management and have them listen to his concerns before they fired him. He alleges that the Union representatives and management did not let him express his concerns and speculated that Ms. Cromwell did not seem concerned about the pending termination. Nonetheless because he felt that she did not want him to speak in the meeting, he gave her permission to speak on his behalf.

94He alleges that as he sat quietly, she said nothing when management fired him. The applicant also taped the October 27^th meeting and his conversations with Ms. Cromwell and Ms. Carson on that date. He alleges that the content of these tapes further illustrates harassment by the Employer and discrimination by the Union. As stated earlier, the audio tapes are mostly inaudible. However, even accepting the applicant’s typed transcription of the content, I do not agree that harassment and discrimination under the Code are evident.

95In several places, the applicant’s commentary highlights his assertion that management or a Union member has made a vexatious or belittling comment. In my view, none of the comments identified reference the applicant’s Italian heritage, amount to instances of Code-related harassment, discrimination, or reprisal, but rather are consist with management pointing out poor work performance issues.

96The applicant alleges that Ms. Cromwell promised that she would listen to his tape recordings and that she would meet with him later in early November to “mount” a defence for him with the Employer. When Ms. Cromwell was replaced by Peter Waterson and Ms. Carson was replaced by Rene Bissonnette, he states that he never saw either of them again.

97The applicant alleges that on November 21^st, he had an appointment with and attempted to see Mr. Waterson and Mr. Bissonette. He asserts that they sent him away stating that he did not have an appointment. However, they promised to look into his case and to help him but told him to go to the Employer and request his file as they did not have it. They gave him the name of Rosemary McCarthy, the Employer’s Employee Relations Officer. The applicant alleges that he taped his conversation with Mr. Waterson and Mr. Bissonette and that the content supports his allegations against the Union.

98He alleges that when he contacted the Employer, there was no file on anything that had happened to him. He feels he has been stonewalled by both the Employer and the Union.

99In October 2008, well after his original Complaints were filed, the applicant visited Unionville High School and spoke to two caretakers he had previously worked with. He taped their conversation and alleges that the content supports his allegations. I have reviewed the typed transcription of these alleged conversations and find nothing in this material to support that conclusion.

100In deciding whether the applicant has met his onus to establish a prima facie case of discrimination against Mr. Hunter and Mr. Lutz, the applicant’s evidence that I accept is that, during the eight days he worked at Unionville, he felt overworked, stated this to at least one other co-worker, received several poor performance evaluations, felt that he knew in general how to clean a school section, yet did not feel that he understood the expectations at this school, so he met with Mr. Hunter and Mr. Lutz to discuss the performance issues that had been raised.

101Even accepting that Mr. Hunter and Mr. Lutz did not treat the applicant well, his “evidence must establish a foundation upon which the Tribunal could find not only that the applicant was mistreated, but that he was mistreated on the basis of a prohibited ground under the Code”: Sosoo, supra. In King v. Enersource Hydro Mississauga, 2010 HRTO 699, the Tribunal stated that it:

does not have a general power to decide whether the respondents treated the applicant fairly or appropriately….While the applicant clearly stated that he feels mistreated by the respondents, to establish a prima facie case of discrimination, he must also explain that this alleged mistreatment would form the basis of a finding of discrimination.

102It is not necessary to determine whether or not the performance records and emails relating to the applicant’s job performance are true. Even accepting that during the applicant’s short time at Unionville High School, Mr. Hunter and Mr. Lutz unfairly criticized and overworked the applicant, the applicant has not adduced any evidence to create a link to his Italian heritage or to his complaints to Mr. Underwood that Mr. Paz called him a “wop”. As in King, the circumstances the applicant found himself in – receiving many poor performance appraisals and feeling overworked – were clearly distressing to him. While he may have a sincere belief that he was mistreated, he has not adduced evidence to link the alleged behaviour to Code-related grounds.

103The applicant’s evidence is not complete and sufficient to justify a finding in his favour, even in the absence of a response from Mr. Hunter and Mr. Lutz, that they discriminated against him. He thus has failed to make out a prima facie case of discrimination against them.

Allegations that the Employer Reprised against the applicant for raising Code-related rights

104While I have found that the applicant did not establish that he told the Employer that Mr. Paz sexually solicited or assaulted him, I have not made any finding with respect to whether or not the applicant complained to the Employer about discriminatory comments by Mr. Paz. It would therefore not be appropriate at this time to dismiss the applicant’s allegations that his transfer out of MacKenzie Glen and the extension of his probation or his ultimate dismissal were acts of reprisal for complaining about the alleged comments by Mr. Paz.

105On the other hand, I have found that the applicant has not established a prima facie case of discrimination by either Mr. Hunter or Mr. Lutz. He has also not adduced any evidence that Mr. Underwood or Mr. McBean instructed Mr. Hunter and Mr. Lutz to orchestrate a campaign of harassment against him during his subsequent posting at Unionville High School. The applicant’s evidence is not complete and sufficient to justify a finding in his favour, even in the absence of an answer from the Employer, that it reprised against him for exercising Code–related rights by directing Mr. Hunter and Mr. Lutz to harass him at Unionville High School.

Summary of Findings with respect to Allegations against the Employer

106In the York Region Application, the following allegations are dismissed for lack of prima facie case:

a. The allegation the Mr. Paz sexually harrassed the applicant on September 5, 2006 during the MacKenzie Glen incident;

b. The allegations that the Employer did not investigate the applicant’s complaints that Mr. Paz sexually solicited the applicant during his employment at MacKenzie Glen or that Mr. Paz sexually harassed the applicant during the MacKenzie Glen incident;

c. The allegations that the Employer made discriminatory comments to the applicant during meetings held on September 6^th and 18^th ;

d. The allegations that during the applicant’s employment at Unionville High School, Mr. Hunter and Mr. Lutz discriminated against the applicant based on his Italian heritage or as reprisal; and

e. The allegation that the Employer reprised against the applicant for raising his Code-related rights by instructing Mr. Hunter and Mr. Lutz to harass him.

107The following allegations are not dismissed and a hearing will be scheduled to hear Mr. Paz’s and the Employer’s responses:

a. The allegations against Mr. Paz that during July, August, and September of 2006, he made sexual advances towards the applicant and that on September 5, 2006, during the MacKenzie Glen incident, he called the applicant a “wop” several times;

b. The allegation that the Employer did not investigate the applicant’s complaints that Mr. Paz made discriminatory comments regarding the applicant’s Italian heritage by calling him a wop during the MacKenzie Glen incident; and

c. The allegations that the Employer reprised against the applicant for raising his Code-related rights when he complained that Mr. Paz called him a wop, by transferring him out of Mackenzie Glen, extending his probation, and ultimately dismissing his employment.

ANALYSIS OF ALLEGATIONS AGAINST THE UNION

108In his own words, the applicant’s position is that his evidence demonstrates that the Union was negligent in protecting his rights as a Union member and blocked him from claiming his rights because of his Italian origin and because he complained that Mr. Paz harassed him for his Italian heritage, and sexually solicited and sexually assaulted him. He also alleges that the Union reprised against him by conspiring with the Employer to see that he was treated differently at Unionville and ultimately terminated.

Allegation that the Union failed to Investigate the applicant’s concerns

109The applicant claims that the evidence supports that the Union failed to properly investigate his allegations respecting the Employer and co-workers. For example, he states that the evidence shows that the Union failed to request the police report of the MacKenzie Glen incident and failed to request or secure surveillance video of that incident. Furthermore, he argues that the testimony of his co-workers reveals that the Union failed to interview any co-workers who may have been witnesses to the alleged incidents at MacKenzie Glen or Unionville.

110In Baylet v. Universal Workers Union, 2009 HRTO 700, the Tribunal found that the applicant had not adduced any facts in support of his Application against the Union other than the fact that the Union did not act on the human rights issues. The Tribunal then stated:

The failure to represent an employee on a human rights claim is not, in and of itself, a breach of the Code, nor does it automatically make the Union a party to the alleged discrimination by the Employer. To found a claim against the Union, the applicant must provide a factual basis that could give rise to a finding that it discriminated against him. For example, the applicant could allege that the union …. made its decision not to represent the applicant because of discriminatory factors….(emphasis added).

111The Tribunal went on to say that it can not be presumed that a union’s failure to act is based on discriminatory beliefs as there may be many non discriminatory reasons that a union might choose to not pursue a human rights claim. And so it is “essential that a factual basis for the alleged discriminatory conduct be established….beyond the mere fact that a particular union did not act.” Similarly in Traversy, 2009 HRTO 996, the Tribunal stated that a claim that a union violates the Code must be based on an assertion of differential treatment, and not simply a failure to act. The Tribunal stated at para. 33, “There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.”

112Finally, in Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025, the Tribunal dismissed an application in similar circumstance against a union. The Tribunal found that “the essence” of the claim against the union was that “it had a legal obligation, as her bargaining agent, to represent her in disputes with the employer,” and that the applicant claimed that the union knew about her claims of discrimination against the employer “but did nothing.” The Tribunal rejected the applicant’s argument that “the Code requires a union who becomes aware of discrimination to take steps to investigate and represent the employee,” stating “I do not accept that, as a matter of law, a union can be found to have violated the Code merely because it has failed to properly or adequately represent one of its members.” See Arias at para. 16.

113In rejecting the applicant’s submissions, the Tribunal in Arias found that the applicant’s allegations did not establish that the union took no steps to assist her. Further, the Tribunal stated that whether the union met its legal duty of fair representation is a matter for the Ontario Labour Relations Board to determine. Here, in fact, the applicant does not dispute that Mr. Bissonette had advised the applicant that he could take up his issue with the Union with the Labour Relations Board.

114The Tribunal in Arias also found no merit to the bald assertion that the union was an agent of the employer. Similarly, here the applicant has not made any allegations, even if accepted as true, that would establish that the Union was acting on behalf of or and an agent of the Employer in respect of the alleged harassment and discrimination.

115More importantly, the applicant has not adduced any evidence that the Union handled the MacKenzie Glen or Unionville concerns differently because of his Italian origin and he has not shown that the Union did not act at all. His own evidence is that several Union representatives attended meetings and made enquiries on his behalf and in fact worked to develop a work plan and follow up for him so that he might succeed at Unionville High School.

116For example, the applicant indicated that Mr. Botts came to MacKenzie Glen the day after the MacKenzie Glen incident to meet with the applicant and Mr. Paz. He testified that he and Mr. Botts attempted to view the video of the Mackenzie Glen incident. Mr. Bissonette came to the meeting where the applicant was informed of the extension of the investigation. Ms. Carson came to the meeting where concerns were raised about work performance and he met with her at least one hour prior to this meeting. Ms. Carson assisted in preparing a work plan and follow up. The applicant was represented by Ms. Cromwell and Ms. Carson at the termination meeting. A grievance was filed regarding the termination, although he was later advised by Mr. Bissonette that the grievance could not proceed because the collective agreement did not allow grievances on behalf of probationary employees. Email evidence relied on by the applicant shows that inquiries were made on his behalf after his termination to obtain video surveillance and his employment file.

117The applicant also alleges that when Mr. Underwood made comments about Italian flags in Mr. Bott’s and Mr. Bissonette’s presence, they failed to act. Assuming that Mr. Underwood made the alleged comments, I have found these would not have been discriminatory. Because there was no discrimination, there was no obligation on the Union to further pursue the non-discriminatory comments. Regardless, the applicant did not ask the Union to somehow pursue the alleged comments in any way.

118As well the applicant’s allegation that the Union treated him differently from Mr. Paz when it agreed to his transfer yet did not insist on Mr. Paz’s transfer is also without merit. First of all, his own evidence is that the Union told him he would be fired if he did not accept the transfer and second the applicant relies on his assumption that the Union agreed to his transfer and not Mr. Paz because of his Italian heritage. There is simply no evidence to support the applicant’s assumption and, in any case, it is not appropriate for me to make a finding based on mere assumption.

119In summary, the evidence does not support a claim that the Union treated the applicant unequally because of his Italian heritage. Rather, the applicant’s evidence supports a conclusion that the Union attended meetings, gave advice regarding the option of a transfer and extended probation versus possible termination. The applicant may not have preferred this advice, but that does not amount to discrimination. See Traversy, supra. Furthermore, the Union represented the applicant in the development of a work plan, and made enquiries on his behalf regarding his employment file. There is no credible factual basis for the claim that the failure to do more was based on discriminatory considerations.

Allegation that the Union, in reprisal, conspired with the Employer

120The applicant argues that the Union conspired with the Employer to further discriminate against him, which was motivated by reprisal for his allegations against Mr. Paz. This alleged conspiracy encompassed the alleged mistreatment by Mr. Hunter and Mr. Lutz, the termination, and the Union’s continued negligence in failing to represent him for example when the applicant was transferred out of MacKenzie Glen.

121The applicant’s allegation is not credible for several reasons. First, the applicant’s allegation that the Union knew of his complaints of sexual assault and reprised against him because he was attempting to assert his human rights is based on his own evidence of one communication with Mr. Botts the night after the MacKenzie Glen incident and I have found his testimony on this point not to be credible.

122I have also found that the applicant has not provided any evidence that Ms. Carson knew that the MacKenzie Glen incident included allegations of sexual harassment or harassment based on Italian heritage. Finally, the applicant has offered no evidence that other Union representatives were motivated by knowledge of allegations of sexual solicitation, sexual harassment, or harassment based on Italian heritage.

123In Nyonzima v. Service Employees International Union, Local 1, 2010 HRTO 1438, the applicant similarly alleged that the union failed to support her claims of harassment in the workplace and reprisal was an issue. In that case, after the Tribunal found that there was no basis to find the requisite intent by the union to retaliate against the applicant for pursuing Code-related rights against the employer, it stated:

…in many cases, there may be no direct evidence of a respondent’s intention to take reprisal action. But the absence of direct evidence does not justify requiring a response from a respondent where there is no reasonable basis that could even lead to an inference that there is an intent to take a reprisal related to the assertion of a human rights claim. In the case before me, the “proceedings” within the meaning of section 8 that are said to have given rise to reprisal action are not proceedings against the union, but against the employer. In the absence of a common interest, the applicant would have to establish that the union intended to retaliate against her for bringing a human rights application against another, unrelated party. The applicant’s assertions about the union’s failure to support her in the workplace do not provide a reasonable basis for drawing such an inference.

124I adopt that reasoning. Although the applicant speculates that the Union conspired with the Employer, there is no evidence to support allegations of conspiracy between the Union and the Employer to discriminate against him after the MacKenzie Glen incident. In fact, while the applicant allegedly told the Union he might be seeking legal advice regarding his transfer and extended probation, there is no credible evidence the Union thought the applicant had attempted or was attempting to enforce Code-related rights.

125The Union Application does not establish a prima facie case that the Union engaged in reprisal against the applicant within the meaning of the Code.

126In summary, an allegation that a union failed to represent an individual is not sufficient to make out a prima facie case of discrimination without a factual underpinning of differential treatment under the Code. The applicant has not demonstrated that he was treated differently than other Union members because of his Italian heritage or that the Union failed to represent him as an act of reprisal for raising allegations of sexual solicitation, sexual harassment, or harassment based on Italian heritage in the MacKenzie Glen incident.

127I am satisfied that the evidence offered by the applicant is not complete and sufficient to justify a finding in his favour even in the absence of an answer from the Union. The Union Application is dismissed.

ORDER

128The York Region Application is dismissed in part. The Union Application is dismissed.

129With respect to those York Region allegations not dismissed, the registrar will schedule a two-day hearing to hear Mr. Paz’s and the Employer’s responses to the following:

a. The allegations against Mr. Paz that during July, August, and September of 2006, he made sexual advances towards the applicant and that on September 5, 2006, during the MacKenzie Glen incident, he called the applicant a “wop” three times;

b. The allegations that the applicant complained to the Employer, who did not investigate, that Mr. Paz made discriminatory comments regarding the applicant’s Italian heritage by calling him a “wop” during the MacKenzie Glen incident; and

c. The allegations that the Employer reprised against the applicant for raising his Code-related rights (when he complained about the three alleged “wop” comments) by transferring him out of Mackenzie Glen, extending his probation, and ultimately dismissing his employment.