Chadwick v. Norfolk (County), 2012 HRTO 1148

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kelly Chadwick

Applicant

-and-

The Corporation of Norfolk County and Norview Lodge

Respondents

INTERIM DECISION

Adjudicator: Brian Cook Date: June 12, 2012 Citation: 2012 HRTO 1148 Indexed as: Chadwick v. Norfolk (County)

APPEARANCES

Kelly Chadwick, Applicant

Nastaran Roushan, Counsel

Norfolk County, Norview Lodge, Kim Jenereaux, and Cindy Arn, Respondents

Ryan Conlin, Counsel

Service Employees International Union Canada, Local 1, Respondent

Mike Newell, Representative

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment because of disability and reprisal.

2The applicant is employed by Norview Lodge, which is operated by the Corporation of Norfolk County ("Norfolk County"). She is a member of the Service Employees International Union Canada, Local 1 (the "union"). The Application named Norview Lodge, Norfolk County, the union and three employees of Norview Lodge as respondents.

3In a Case Assessment Direction dated January 30, 2012, the Tribunal directed that a summary hearing be scheduled to determine if the Application should be dismissed as against the union and the personal respondents because there is no reasonable prospect that the Application as against those respondents could succeed. The summary hearing was held by telephone conference call on June 6, 2012.

Background

4The applicant began her employment in 2001. She developed a work-related bilateral arm condition. A claim was filed with the Workplace Safety and Insurance Board in 2008. The claim was accepted and the applicant has received benefits from the Workplace Safety and Insurance Board.

5The Application alleges that the applicant was harassed and discriminated against by her employer and the union with respect to her disability and her conditions of work after her injury.

6A key allegation is that in August 2011, the employer reduced the applicant's hours of work and that this was discriminatory. The Application alleges that the union agreed to this, and that in doing so, it also discriminated against the applicant.

7At the time the Application was filed, the applicant was off work on a sick leave that commenced in August 2011. The applicant returned to work in December 2011. A grievance was filed in January 2012.. At the summary hearing, the parties agreed that, regardless of the outcome of the summary hearing, it would not be appropriate for the Tribunal to consider deferral of the Application because of this grievance.

8However, there is a continuing issue with respect to previous grievances or potential grievances. In their Response to the Application, the respondents, other than the union, submitted that the Application should be dismissed because the applicant had filed grievances or could have filed grievances arising out of the issues in the Application. The time for filing a Reply to this request had not passed as of the date of the summary hearing. The parties were not prepared to deal with this issue at the summary hearing. Applicant's counsel confirmed that she would file the Reply after the conclusion of the summary hearing.

Should the Application proceed as against the union?

9As noted in the earlier Case Assessment Direction, the Tribunal has generally held that an allegation that a union condoned an allegedly discriminatory action by the employer by failing to intervene or pursue a grievance is not generally, in itself, a basis to continue an Application against a union. In Traversy v. Mississauga Association, 2009 HRTO 996, the Tribunal stated as follows at paragraph 33:

[A] claim that the union violates the Code must be based on an assertion of differential treatment, and not simply a failure to act. The failure or refusal to take forward a human rights issue, such as accommodation of a disability in the workplace, is not, in and of itself, a breach of the Code. There may be many reasons that have no discriminatory overtones why a union might choose not to pursue a human rights claim on behalf of an employee: see Baylet v. Universal Workers Union, 2009 HRTO 700. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.

10In this case, the applicant alleges that the union not only failed to intervene or file a grievance in relation to the allegedly discriminatory reduction in hours in 2011, but also actively agreed that the reduction of hours was appropriate and allegedly did so because the applicant had a disability.

11The union submits that the decision to reduce the applicant's hours was not a decision the union participated in. The union notes that the assignment of work and hours is the prerogative of the employer, provided the assignment is consistent with the collective agreement. The union submits that the applicant could have filed a grievance in respect of the reduction in hours as others affected by the reduction in hours did, but that she chose not to.

12On behalf of Norview Lodge and Norfolk County, Mr. Conlin agrees that the decision to reduce the applicant's hours was made by the employer and that the union was not part of that decision making process. Mr. Conlin advised that his clients will argue that the hours of all part-time employees in the applicant's job classification were reduced in a manner consistent with the collective agreement.

13On behalf of the applicant, Ms. Roushan indicated that the applicant alleges that all the part-time employees were not treated the same and that her hours were reduced in a discriminatory fashion. Ms. Roushan referred to an article in the collective agreement that indicates that the hours for part-time staff will be scheduled on "an equitable basis" with regard to seniority. She indicated that the applicant has been told by unspecified individuals that this article is the reason that her hours were reduced and suggested that this shows that the union agreed to the reduction in hours.

14The applicant also alleges that she was told in conversations with unspecified individuals at the workplace that the union had agreed that her hours should be reduced and that without this agreement, her hours would not have been reduced. She also alleges that when she complained about this to a union official, she was told that injured workers are generally not treated fairly and interpreted this to mean that the union official agreed that it was appropriate that injured workers are not treated fairly.

15In my view, there is no reasonable prospect that the applicant could successfully establish that the union discriminated against her contrary to the Code. The assignment of hours and conditions of work are matters that are usually the prerogative of management. A union is not usually involved in making those decisions although it does have rights and obligations arising out of the collective agreement in respect of decisions that management does make. There is no evidence in this case that the collective agreement allows the union to participate in decisions about the assignment of hours and conditions of work to an individual employee.

16The provisions in the collective agreement referred to by the applicant provide that hours of work will be assigned in an equitable manner, subject to seniority. The applicant alleges that her hours of work were not assigned in an equitable manner and that they were in fact assigned in a discriminatory manner. For the purposes of a summary hearing, and whether there is a reasonable prospect for success, the applicant must point to some evidence that establishes that the union had the authority to be a part of the decision regarding the applicant's hours of work. As noted, in my view, there is no reasonable prospect that the applicant could establish this. I therefore conclude that the Application as against the union must be dismissed on the grounds that there is no reasonable prospect of success as against the union.

The personal respondents

17The Application named three personal respondents. One of these is no longer employed by the corporate respondents and the applicant consents to her removal as a personal respondent.

18The remaining personal respondents are Kim Jenereaux and Cindy Arn. Ms. Jenereaux is the chief executive officer of Norview Lodge. Ms. Arn is the applicant's direct supervisor at Norview Lodge.

19The parties agree that the test for removing a personal respondent is found in Persaud v. Toronto School Board, 2008 HRTO 31:

• Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
• Is there any issue raised as to the corporate respondent's deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?
• Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
• Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?
• Would any prejudice be caused to any party as a result of removing the personal respondent?

20Having regard to these factors, I am satisfied that the personal respondents should be removed as respondents to the Application.

21Mr. Conlin confirmed that the corporate respondents accept full liability or vicarious liability for the conduct of the personal respondents and also accepts that the personal respondents were fully acting in the course of their respective employments in regard to all events relevant to the Application. He further confirmed that they will be available as witnesses at a hearing before the Tribunal.

22The applicant submits that the actions of the personal respondents are the central issue in the Application and that the nature of the alleged conduct of the personal respondents is such that it is appropriate to award a remedy specifically against them. I am satisfied that the corporate respondents are capable of remedying any infringement of the Code if liability is established.

23The applicant also submits that the actions of the personal respondents will be a central issue in the Application, however this is true of many Applications in which responsibility ultimately rests with an organizational respondent. Decisions or actions taken by organizational respondents are necessarily effected through individual employees or officers, acting in the course of their employment.

24The applicant submits that it is important that the personal respondent remain as respondents so that they will be held to account for their actions. The applicant further submits that she will be seeking specific damages against them that may not be limited to financial damages. She believes that this will be necessary to ensure future compliance with the Code.

25In my view, in the circumstances of this case, this is not a sufficient reasons to continue the Application as against the personal respondents. The Tribunal may make orders to ensure future compliance with the Code with respect to individuals who are employed by the corporate respondent whether or not the individuals who are found to have effected discrimination are named as respondents.

26I therefore find that the remaining personal respondents should be removed as respondents to the Application.

27The only remaining respondents are Norview Lodge and Norfolk County. Mr. Conlin advised that while these respondents are separate legal entities, for the purpose of the Application, it is not necessary to distinguish between them.

ORDER

28There is no reasonable prospect that the Application as against the union could succeed and the Application as against the union is dismissed on that basis.

29All three personal respondents are removed as parties to the Application and the style of cause is amended accordingly.