HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Steve Seguin
Applicant
-and-
Labourers International Union of North America, Local 527 and
Murray Ostrom
Respondents
DECISION
Adjudicator: Maureen Doyle
Indexed as: Seguin v Labourers International Union of North America, Local 527
appearances
Steve Seguin, Applicant ) On his own behalf
Laborers International Union of North ) James L. Robbins,
America, Local 527, and Murray Ostrom ) Counsel
Respondents )
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”), on March 31, 2011, alleging discrimination in membership in a vocational association by the respondents, on the basis of age.
2The applicant alleged that he was a member of the respondent union since 2008 but had never received a call for work and that he believes he was discriminated against because of his age. First, he alleges that when he went into the union office in Cornwall to pay his dues on August 13, 2008, he had a conversation with the personal respondent, Murray Ostrom. He alleges that Mr. Ostrom told him there was a job available at the hospital, but that he would need to wear a mask all day as the job was very dirty and it was a “young man’s job”. He alleges that Mr. Ostrom “talked me out of it but I would have taken it”. The second allegation of discrimination occurred on December 1, 2010, when he went into the office to deliver a letter of complaint regarding discrimination to Mr. Ostrom. The applicant alleges that at that meeting Mr. Ostrom told him he had passed him over for consideration for three bricklayer helper’s jobs as they were “young man’s jobs”.
3On May 24, 2011, the respondents filed a Response and several Requests for Order During Proceedings (RFOPs), including that the first allegation of discrimination be dismissed for delay. The applicant filed responses, objecting to the various Requests. With regard to the issue of delay, he submitted that the Application should proceed as it involves an allegation regarding an event on December 1, 2010, which was within one year of the date of the Application.
4In their Response, the respondents deny any discrimination. With respect to the first allegation of discrimination, the respondents provided union business records indicating that the applicant had been given work assignments over the course of his membership with the union. They state in response to the allegation that Mr. Ostrom had “talked him out of” a work assignment at the hospital in 2008, their records reflect that a meeting was held on June 15, 2009, where Mr. Ostrom had explained a relevant work opportunity to the applicant, which the applicant turned down due to respiratory problems. The respondents deny that Mr. Ostrom stated that certain work was a “young man’s” job. They also indicate that from September 2009 to February 2010, the applicant had accepted a full time job with the Heart and Stroke Foundation, separate and apart from his membership in the union. Their records demonstrate that attempts were made to contact him to offer him union work through the hiring hall were unsuccessful. They also indicate that the union had provided the applicant with training, including 6 weeks of training in February 2009 as a welder, which cost the union approximately $2000.00. Further, they provided business records indicating that from August 1, 2010 to December 24, 2010 the applicant’s union membership had been suspended (making him ineligible for work assignments through the hiring hall) for non-payment of dues.
5With respect to the second allegation of discrimination, the respondents state that the discussion between the applicant and Mr. Ostrom on December 1, 2010, related to the applicant’s suspension from the union and what was required for him to be re-admitted. The respondents further state that on December 3, 2010, the applicant’s re-admission fee for the union was paid by Mr. Ostrom as a loan to the applicant. The respondents also provided union business records indicating that the applicant was once again suspended for non-payment of dues on February 1, 2011. .
6They also provided the Rules and By-Laws for dispatching members to available work and described the work referral process, which establish that the distribution of work opportunities through the union is prescribed by a complex series of rules and that the individual respondent has no discretion in how these assignments are distributed. Among other things, it indicates that it is the union’s dispatch service in Ottawa which offers positions from the “hire list”. Mr. Ostrom does not work in that office. It also notes that individuals who are suspended from the union lose their position on the “hire list” and return to the list as a new entry if readmitted to the union.
7The respondents sought a summary hearing, submitting that the Application had no reasonable prospect of success. The applicant filed a response to the RFOPs, and suggested that the request for a summary hearing should be denied because Mr. Ostrom was guilty of reprisal in not preventing his suspension for non-payment of dues in February 2011.
8The applicant did not file a Reply to the Response filed by the respondents.
9On October 3, 2011, the Tribunal issued a Case Assessment Direction (CAD) granting the respondents’ request for a Summary Hearing. The CAD noted that the respondent had provided an explanation of the events in question which contradicts various aspects of the applicant’s factual assertions and that the applicant had not filed a Reply. The CAD directed that the applicant would proceed first at the summary hearing and that he would “address the substance of the respondents’ arguments in the Request for Summary Hearing” and he would “make argument about why the Application should not be dismissed as having no reasonable prospect of success.” The CAD directed in particular that the applicant should “address what seems to be a contradiction between the respondents’ business records and his assertions about what happened which have not been addressed in a Reply”. The CAD also directed the parties to be prepared to address certain aspects of the RFOPs.
10At the summary hearing, the applicant identified the following as the allegations he seeks to have the Tribunal determine:
His allegation that Mr. Ostrom discriminated against him in the course of a discussion regarding work at the hospital.
His allegation that Mr. Ostrom discriminated against him in the course of a discussion on December 1, 2010
His allegation that Mr. Ostrom discriminated against him by not considering him for 3 jobs as bricklayer’s helper, jobs which he stated he believes may have been available in the summer of 2010.
11The applicant was clear that he is not raising reprisal as a separate allegation and he did not seek to put unparticularized allegations of a failure to assign him to work since 2008 before the Tribunal.
The First Allegation of Discrimination - Hospital Work Assignment and Delay
12The Application as it relates to an allegation that Mr. Ostrom “talked him out of” a work assignment at the hospital in August 2008 or June 2009 and that he described certain work as “a young man’s job” is dismissed on the basis of delay.
13Section 34 of the Code states, in part:
(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
14Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 holds that “the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.” When filing outside this one year time limit, it is incumbent upon the applicant to provide the Tribunal with an explanation as to why he did not pursue his rights under the Code in a timely manner, otherwise the Tribunal is without jurisdiction to determine the application.
15The applicant alleges that Mr. Ostrom “talked him out of” a work assignment at a hospital on the basis that it was a “young man’s job”. He alleges in his Application that this conversation took place in August 2008. The applicant did not disagree when the respondent stated that its records demonstrates a meeting regarding demolition work took place on June 15, 2009, where Mr. Ostrom had explained a relevant work opportunity to the applicant, which the applicant turned down due to respiratory problems. In either scenario,. the respondent submits, the allegation is untimely noting that the Application was filed on March 31, 2011.
16The Application was filed on March 31, 2011, more than one year after the alleged event, even if calculated with reference to the later, June 2009 date. The applicant submits that it formed part of a series of events. Generally, for the purposes of section 34 of the Code events are not part of a series of incidents if there is a break in the temporal connection between them. A gap of more than one year between events has, in a number of cases, been deemed to interrupt the series. See for example, Savage v. Toronto Transit Commission, 2010 HRTO 1360 and Chintaman v. Toronto District School Board, 2009 HRTO 1225. Depending on the actual date of the event complained about, the gap here is anywhere from approximately two years and 7 months to 1 year and 9 months. I also note that in the intervening period, from September 2009 to February 2010, the applicant had accepted full time work for six months elsewhere with an employer, entirely separate from his union membership and hiring hall process. I find that this period of employment with an unrelated employer is further evidence of a break in the purported series of events. In my view, this temporal gap and the intervening period of employment with an unrelated employer is sufficient to prevent the untimely allegation from forming part of a series of incidents that includes the December 2010 allegations.
17As this allegation is not part of a series of incidents and relates to events more than one year prior to the filing of the Application, I must consider whether the applicant has established that the delay in raising the allegation was incurred in good faith. The applicant has not advanced any reason for the delay in making this allegation, and accordingly, I do not find that good faith has been established in relation to the delay. Given my finding, there is no need for me to consider the question of any possible prejudice to the respondents.
18Pursuant to section 34 of the Code, therefore, this allegation is untimely and the Tribunal has no jurisdiction to consider it. Accordingly, it is dismissed.
The Second Allegation of Discrimination - Bricklayer Helper Work Assignments
19This Application as it relates to a claim that work assignments were made on a discriminatory basis is dismissed as having no reasonable prospect of success.
20The applicant alleges that he was subject to age discrimination because Murray Ostrom at the union office in Cornwall did not send him out for work assignments when he should have done, due to discrimination on the basis of age. In their Response, the respondents provided a detailed explanation regarding how work assignments from the “hire list” are made by the union, and have asserted that there is no room for Murray Ostrom to exercise any discretion in determining who will be offered what work. The respondents’ explanation of the work assignment process also clearly indicates that work assignments are dispatched from Ottawa. No Reply was filed by the applicant and the CAD noted that an applicant is required to file a Reply where he “intends to prove a version of the facts different from those set out in a Response”. At the summary hearing, the applicant was given an opportunity to address the Response and business documents from the respondent, but pointed to no evidence he would rely upon to establish that Mr. Ostrom had been able to exercise discretion in the matter of making work assignments to him.
21Without an indication from the applicant as to what evidence he would rely upon to establish his claim that Mr. Ostrom or the respondent union had been able to exercise discretion in the matter of work assignments in such a way that discriminated against the applicant, the Application as it relates to the allegation of work assignments tainted by age discrimination has no reasonable prospect of success.
22The applicant alleges that when he went to see Mr. Ostrom on December 1, 2010 to complain about discrimination, Mr. Ostrom indicated he had not considered him for some bricklaying jobs because it is a “young man’s job”. Whether this comment was made or not, I find that this allegation on its own is not evidence which could establish that Mr. Ostrom was in fact able to exercise the discretion the applicant alleged. Further, as noted above, the applicant filed no Reply setting out a different version of how work assignments are made and has pointed to no evidence upon which he would rely to indicate any method of work assignment other than that described by the respondent. In these circumstances, if the applicant is not able to point to evidence he would rely upon to establish Mr. Ostrom’s ability to exercise discretion in making work assignments, there is no reasonable prospect that the evidence the applicant has or is reasonably available to him can show a link between his work assignments, or lack thereof, and discrimination.
December 1, 2010 Conversation – Harassment?
23The applicant alleges that Mr. Ostrom stated that he had not considered the applicant for bricklayer helper jobs because those are “young man’s jobs”. Even if the applicant cannot show that certain jobs were denied him because of his age, I must consider whether there is a reasonable prospect that this statement, if made, may be found to be in and of itself discrimination contrary to the Code.
24Section 10(1) of the Code defines harassment as follows:
“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.
25Thus, in order to constitute harassment, the impugned behaviour must satisfy a threshold of a course of vexatious conduct or comment that is known, or objectively should have been known, to be unwelcome.
26Given that the applicant has not stated that the alleged comment itself had an impact on him, other than to state he believes it indicates he was not assigned certain jobs due to age discrimination, and has not sought an remedy in relation any impact on him of the alleged comment, it is not evident that the comment itself was or should have been known to be unwelcome.
27In the course of the summary hearing, in making submissions regarding his earlier allegations of being denied a job at the hospital, when he alleged that Mr. Ostrom had stated then that the work was a “young man’s job”, the applicant indicated that it likely was a young man’s job, but that he would have liked to have tried it. In his Application, he described the effect of the respondents’ alleged discrimination in terms of lost wages. He has sought to rely on the alleged December 1, 2010 comment as an indication that he was excluded from certain jobs due to his age, but he has not indicated that the alleged comment itself had any impact on him. This is consistent with the fact that he has sought no remedy for the alleged comment itself.
28In any event, if indeed the comment was made and was or should have been known to be unwelcome, would this single comment amount to a breach of the Code? This Tribunal has found that a single comment may, in certain circumstances, amount to a breach of the Code. In Way v. Coalition Against Psychiatric Assault 2011 HRTO 1234 (“Way”) the Tribunal stated:
Court and tribunals have recognized that a single comment can amount to a breach of the Code, but only in limited circumstances. In Hazdic v. Pizza Hut Canada (c.o.b. Pizza Hut), [1999] B.C.H.R.T.D. No. 44, the British Columbia Human Rights Tribunal (“BCHRT”) stated at para 33:
The context within which the racial/religious harassment occurs is important. Usually repeated conduct is required to establish racial/religious harassment. However, if the conduct is considered extreme, there is less need to establish a pattern of behaviour and a single act may be sufficient evidence: Bell v. Flaming Steer Steak House (1980), 1980 CanLII 3899 (ON HRT), 1 C.H.R.R. D/155 (Ont.Bd.Inq.).
Furthermore, in Pardo v. School District No. 43, 2003 HCHRT 71, the BCHRT stated at para 12:
(…) all the circumstances must be taken into account when considering whether a single comment could constitute a contravention of the Code. Without suggesting that this is an exhaustive list, some of the relevant factors would be the egregiousness or virulence of the comment, the nature of the relationship between the involved parties, the context in which the comment was made, whether an apology was offered, and whether or not the recipient of the comment was a member of a group historically discriminated against.
29In Way, the Tribunal dismissed the Application following a summary hearing, stating at paragraph 39:
In my view, a single comment that implies that all Christians are homophobic is inappropriate, but is not sufficiently extreme, egregious or virulent as to constitute discrimination, particularly when it is followed by an immediate apology.
30Similarly, in this matter, while no apology was issued, in circumstances where the applicant himself has not indicated that the alleged comment had any impact on him, I find that the comment, if made, which states that certain jobs are for a “young man” would be inappropriate, but would not be sufficiently extreme, egregious or virulent as to constitute discrimination.
31Accordingly, in my view, there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that his Code rights were violated because of the comment allegedly made by Mr. Ostrom.
32Given the determinations above, it is not necessary to consider the respondents’ remaining RFOPs regarding removal of the individual respondent or regarding the provision of particulars.
ORDER
33The Application is dismissed.
Dated at Toronto, this 5th day of June, 2012
“signed by”
Maureen Doyle
Vice-Chair