Crosby v. United Food and Commercial Workers Canada, 2012 HRTO 1158

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Catherine Crosby

Applicant

-and-

United Food and Commercial Workers Canada Locals 175 & 633

Respondent

DECISION

Adjudicator: Michelle Flaherty

Date: June 12, 2012

Citation: 2012 HRTO 1158

Indexed as: Crosby v. United Food and Commercial Workers Canada

APPEARANCES

Catherine Crosby, Applicant

Self-represented

United Food and Commercial Workers Canada Locals 175 & 633, Respondent

Marcia Barry, Counsel

1This Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination on the basis of disability in employment and the provision of goods, services, and facilities. The Application also alleges reprisal or threat of reprisal.

2In an Interim Decision dated July 2, 2010, 2010 HRTO 1452, I dismissed the Application against two of the three respondents originally named in the Application. I allowed it to proceed against the United Food and Commercial Workers Canada Locals 175 & 633 (“Union”). At the time, the Application had not been delivered to the respondent. I held that it was not plain and obvious that the applicant did not raise a ground of discrimination against the Union under the Code.

3In a Case Assessment Direction (“CAD”) dated April 10, 2012, I directed that the Application proceed by way of summary hearing. The summary hearing took place on June 1, 2012. I heard submissions from the applicant and from counsel for the Union.

4For the reasons that follow, the Application is dismissed because it has no reasonable prospect of success. I understand that the applicant feels that she was treated unfairly and that she is frustrated by the Union’s alleged failure to act in a timely manner to advance her rights. However, the applicant has presented no basis to suggest that her disability was a factor in the Union’s alleged behaviour.

ANALYSIS

5Section 1 of the Code states:

Every person has the right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

6Section 5 of the Code states:

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.

7The issue at the summary hearing is whether the Application has a reasonable prospect of success and, in particular, whether there is a reasonable prospect that the applicant can show a link between the Union’s alleged behaviour and a Code ground.

8In considering this issue, I am mindful that the Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination on the grounds set out in the Code: Dabic v. Windsor Police Service, 2010 HRTO 1994. Further, as the Tribunal noted in its April 10, 2012 CAD, the Tribunal has held that it is not discrimination for a union not to file or pursue a human rights grievance, unless the reason for doing so was based on one of the grounds in the Code: Traversy v. Mississauga Firefighters’ Association, 2009 HRTO 996.

9I explained these principles to the applicant at the outset of the summary hearing and invited her to explain why she felt Code grounds were a factor in the respondent’s behaviour. In response to my question, the applicant explained that the respondent’s treatment of her was unfair and inappropriate and that she believes the Union failed to represent her appropriately.

10The applicant makes the following specific allegations against the Union:

a. It knew that the employer was seeking to terminate her employment;

b. It failed to file a grievance in relation to her termination; and

c. It failed to take steps to ensure that her Workplace Safety and Insurance Board (“WSIB”) claim advanced in a timely manner.

11In its Response, the Union denies the allegations of discrimination and maintains that it took appropriate steps to represent the applicant.

12The parties agree that, following the termination of her employment, the applicant spoke to her Union shop steward with respect to filing a grievance. The shop steward fell ill with a heart attack very shortly after his conversation with the applicant and, although the applicant understood that a grievance would be filed on her behalf, none ever was.

13There is a dispute as to whether or not the applicant took any further, immediate steps to ask the Union to file a grievance. The applicant states that she did. In any event, she states that the Union knew about the termination and that it ought to have advised her of what, if any, additional steps were required. The respondent states that, besides speaking to the shop steward, the applicant did not immediately follow up with the Union regarding her grievance even though she knew or ought to have known who else to contact.

14I do not need to resolve this dispute. It is clear that the applicant took some steps to initiate a grievance. It is also clear that no grievance was actually filed. While the applicant has expressed frustration and concern about the Union’s alleged failure to appropriately represent her, she has not made any allegation that the Union’s behaviour was based on the applicant’s disability or any Code ground.

15As the Tribunal stated in Traversy, supra at para. 33:

Assuming that the Code also applies to this aspect of a union’s relationship with the employees it represents, 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.

16I find that the applicant’s allegations that the Union failed to file a grievance and that it failed to advance her WSIB matter in a timely way have no reasonable prospect of success. Even assuming (without finding) that these allegations are true, they do not constitute a breach of the Code because the applicant has not alleged or pointed to evidence or prospective evidence to show that the applicant’s disability was a factor in the Union’s behaviour.

17It is not clear to me what is allegedly discriminatory about the Union’s knowledge of the employer’s intention to terminate the applicant’s employment. To the extent that the applicant is arguing that the Union ought to have proactively taken steps to prevent the termination of her employment, she has not alleged or provided any basis to suggest that the Union’s behaviour in this regard was based on Code grounds.

18Finally, the applicant submitted that the Union took steps to advance her WSIB claim only after she filed this Application. I am not satisfied that this allegation has any reasonable prospect of success in that it could support a finding of discrimination or of reprisal. The applicant has not alleged that her disability was a factor in the Union’s behaviour, nor has she alleged that the Union reprised against her in the sense that it acted or made a threat with the intention of retaliating against her because she had asserted rights under the Code: Noble v. York University, 2010 HRTO 878, at paras. 33-34. Indeed, the applicant appears to be arguing the opposite: that when she asserted her rights under the Code by filing an Application, the Union treated her better and took her WSIB matter more seriously.

19For all of these reasons, I find that the Application has no reasonable prospect of success. It is dismissed.