Vere v. CAW Local 4207, 2012 HRTO 123

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dennis Vere

Applicant

-and-

Canadian Auto Workers Local 4207,

Mark Goetz and Phil Eadie

Respondents

DECISION

Adjudicator: Mark Hart

Date: January 17, 2012

Citation: 2012 HRTO 123

Indexed as: Vere v. CAW Local 4207

APPEARANCES BY

Dennis Vere, Applicant ) Self-represented

Canadian Auto Workers Local 4207, ) Barry Wadsworth, Counsel

Mark Goetz and Phil Eadie, Respondents )

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended (the "Code"), dated June 28, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the "Commission") on July 4, 2007.

2The applicant alleges that he experienced discrimination because of his disabilities with respect to his membership in a trade union contrary to ss. 6 and 9 of the Code, arising out of alleged actions by Canadian Auto Workers Local 4207 (the "Union") and the personal respondents in relation to the applicant's absence from work in early 2007, his employer's position that he had not provided adequate medical documentation to substantiate his absence, the termination of the applicant's employment, and the ultimate resolution of his termination grievance.

3The hearing in this matter was held on September 8, 2011, in accordance with the expectation, expressed in the Code and the Tribunal's Rules of Procedure for Transitional Applications, that section 53 applications proceed in an expeditious manner. On consent of all parties, I took the lead in questioning the witnesses and heard from the applicant, the two personal respondents and one additional witness (Rob Vincent, the Union's Recording Secretary). The parties were afforded the opportunity for further examination of their own witnesses and cross-examination of opposing witnesses after I had completed my questioning of each witness. On consent, the parties filed their final argument by way of written submissions, with reply submissions received from the applicant on November 4, 2011.

4Also on consent of the parties, the hearing in this matter was bifurcated to deal first with the issue of whether the respondents had violated the applicant's rights under the Code, and then at a subsequent stage, and only if the respondents were found to be liable, to address any issues of remedy.

The Parties

5The applicant was employed by Wescast Casting at its plant in Wingham, Ontario and was a member of the Union. His employment at Wescast Casting was terminated on February 21, 2007, on the basis of the employer's position that he had failed to provide adequate or sufficient medical documentation to support his absence from work. On April 18, 2007, the applicant, the Union and the employer entered into a settlement agreement resolving a grievance challenging the applicant's termination, which was accompanied by a Final Release & Indemnity signed by the applicant in favour of the employer. Due to the signing of the settlement agreement and release, a companion Application by the applicant against his former employer was dismissed, 2011 HRTO 748.

6CAW Local 4207 is a trade union and the bargaining agent for several bargaining units of workers at Wescast Casting, representing approximately 800 workers. At all relevant times, the personal respondent Mark Goetz was President of Local 4207 and an employee of Wescast Casting. At all relevant times, Phil Eadie was the elected CAW – Canada Chairperson at the Wescast Casting facility in Wingham and an employee of Wescast Casting.

The Evidence

7The applicant has struggled with fibromyalgia associated with a sleep disorder for many years, and is an admitted alcoholic who has used alcohol to try and treat both of these conditions. These medical conditions historically have caused the applicant to experience absenteeism from work which his employer felt to be excessive and took action to correct.

8On January 2, 2007, while out at a restaurant, the applicant experienced a syncopal episode which caused him to lose consciousness and fall to the ground, gashing his head. The applicant was taken to the emergency department of a local hospital, where he was treated and released. The applicant thereafter underwent various testing to try to determine the cause of this episode.

9The extent of the applicant's absences from work following his syncopal episode is unclear from the evidence before me. However, on the basis of a letter dated February 9, 2007, to the applicant from his employer, it appears that the applicant was continuously absent from work from January 22, 2007, until his employment was terminated on February 21, 2007.

10On January 24, 2007, the applicant called in to work to report his absence and cited "insanity" as the reason. This prompted the company nurse to initiate a call to the applicant on January 25, 2007, to clarify the reason for his absence from work. The company nurse invited two Union officials, Mr. Goetz and Mr. Vincent, to participate in the call. The contemporaneous notes of this call made by the company nurse state that the applicant was very defensive throughout the conversation and would not provide a reason for his absence from work beyond saying that he was under investigation for sleep apnea and fibromyalgia. On this call, the applicant requested the forms to apply for short term disability ("STD") benefits and was asked to provide the fax number for his specialist so that the STD forms could be faxed there. Both Mr. Goetz and Mr. Vincent testified that on this call, they explained to the applicant that he needed to provide medical documentation to support his absence from work and stressed the seriousness of this issue. This was not disputed by the applicant.

11The applicant states that he requested that the STD forms be brought to him at his home by union members who lived nearby. At the hearing, he appeared to hold the Union accountable for its failure to bring the STD forms to him in this manner. The evidence of the Union is that the employer was reluctant to provide the STD forms to the applicant, and instead wanted to send them directly to his treating physician. In my view, the Union is not responsible for the delivery of STD forms to the applicant. Rather, I find based on the evidence before me that it was the employer's decision that it wanted the STD forms sent directly to the applicant's doctor.

12It appears that the STD forms ultimately were faxed to the applicant's family doctor on January 30, 2007. It further appears that the applicant saw his family doctor on February 6, 2007, and the STD forms were completed by the doctor on that date, although the applicant says that this was done after the appointment had ended.

13On February 9, 2007, the employer sent a letter to the applicant stating that he had been absent from work without acceptable medical verification since January 22, 2007. The letter notes that STD forms were faxed to his doctor on January 30, 2007, but as of February 9, 2007, the employer had not received any documentation to substantiate the applicant's absence. The applicant was asked to provide the company nurse with this documentation by February 14, 2007, at 2 p.m. and he was told not to report for work until this documentation had been received and reviewed by the employer. The applicant was advised that failure to properly substantiate an absence was disciplinable under the collective agreement and his attention was directed to Article 15.02 of the collective agreement and Policy – 6.3.2 – Immediate Discharge Policy. This letter was copied to the Union.

14The applicant states that on February 13, 2007, he dropped off two packages of medical documentation that included at least the completed STD forms. He states that one package was dropped off to his employer, and one package to the Union. The Union disputes that it received a copy of the applicant's STD forms or other medical documentation at this time. The STD form completed by the applicant's doctor indicates that the applicant suffers from syncope, fibromyalgia and a probable sleep disorder, and that his prognosis for return to work was unknown at that time. The doctor's report states that the applicant was currently unable to work pending further tests and referrals due to poor concentration, poor sleep and poor pain control.

15In evidence before me is a note from the company doctor to the company nurse dated February 13, 2007, indicating that the company doctor had reviewed the medical documentation submitted by the applicant and that various medical results were missing as specified in the note. The company doctor states in this note that from the information provided, he was unable to see a reason for total disability. The company doctor also indicated that the employer should see if the applicant's family physician has a plan for continued diagnosis and management of the applicant's issues. There does not appear to be any dispute on the evidence before me that these specific deficiencies in the medical documentation provided by the applicant were not shared by the employer either with the applicant or with the Union.

16On February 16, 2007, the employer sent a further letter to the applicant, which was copied to the Union. This letter states that the employer was now in receipt of the STD forms, but that these forms failed to provide medical justification for the applicant's continued absence. As a result, the applicant's STD claim was denied. The applicant was advised that if he had any documentation that he could provide to justify his STD claim, he should do so immediately. The applicant was invited to contact the employer if he had any questions. The applicant did not provide any further medical documentation at this time, nor does the evidence indicate that he contacted the employer with any questions.

17On February 19, 2007, the employer sent a further letter to the applicant stating that it had not received any acceptable medical verification paperwork since his absence from work began on January 22, 2007. As a result, the employer stated that it was left with no alternative but to advise the applicant that his employment would be terminated under Article 15.02(f) of the collective agreement as of 3:00 p.m. on February 21, 2007, unless such medical documentation was provided.

18Mr. Eadie's evidence is that he had called the applicant after receiving a copy of the February 9, 2007 letter and left a voicemail message for him. The applicant does not recall this. Mr. Eadie's evidence that is that he called the applicant again on February 19, 2007, after receiving a copy of the employer's letter threatening termination. Mr. Eadie states that he spoke directly with the applicant on this occasion, and told the applicant that he needed to provide medical documentation to the company by February 21, 2007, or his employment would be terminated. Mr. Eadie states that the applicant did not tell him that he could not provide medical documentation by this date, nor did the applicant ask the Union to request more time from the employer. The applicant states that he does not recall this conversation. However, while the applicant believes that the timeframe afforded to him by the employer to provide this further medical documentation was unreasonable, he acknowledges that he did not ask the Union to intercede on his behalf with the employer and request more time. The applicant also acknowledges that he did not ask the Union to inquire on his behalf as to why the employer regarded the medical documentation he already had provided to be inadequate. Rather, it is the applicant's position that the Union should have done these things on his behalf on the Union's own initiative.

19There is no dispute that the applicant did not provide any further medical documentation to the employer by the deadline on February 21, 2007. While there is no formal termination letter in evidence before me, there appears to be no dispute that the applicant's employment was terminated on February 21, 2007. The applicant states that he called the Union on February 21, 2007, to ask whether his employment had been terminated and was told that the Union guessed that it had. On February 23, 2007, the applicant sent an e-mail to Mr. Vincent and Mr. Eadie in which he states that he guesses that he has been fired and has to go through the grievance process "without a hope in hell???" However, in this e-mail the applicant states that he was just following doctor's orders. Mr. Vincent replied that day by stating that termination grievances go right to the third step of the grievance procedure and asked whether the applicant wanted to be there.

20A grievance was prepared and signed by the applicant and the Union on February 28, 2007, and the third step meeting with the employer proceeded that day. By this time, the applicant had received a letter dated February 26, 2007, from his family doctor which took issue with the employer's decision to terminate his employment, noting that if the applicant had gone back to work, this would have been against his physician's advice.

21The third step meeting on February 28, 2007, was attended by the applicant, Mr. Eadie, Mr. Vincent, Mr. Goetz and employer representatives. The Union's notes of this meeting indicate that Mr. Eadie read out the grievance and a breakdown of the treatment the applicant had received since he was off work (this latter document is not in evidence before me but I understand it to have been prepared by the applicant). The notes record that Mr. Eadie also read out the letter from the applicant's family doctor explaining the applicant's time off and "booze" struggles, and also explaining a future plan and a request that the applicant be returned to work. Apparently, a question was asked by the plant manager regarding what fibromyalgia was, which was explained by Mr. Eadie. At the end of the meeting, the notes record that management requested time to review the information provided.

22The applicant takes issue with the representation he received from the Union at this third step meeting for several reasons. First, he questions why he was not brought in at an earlier time to prepare for this meeting. Second, he states that he did not receive proper representation at this meeting on the basis that Mr. Eadie only read the information that the applicant had provided. Third, he takes issue with the fact that Mr. Goetz remained in the room with management after the third step meeting had ended, and that Mr. Goetz did not meet with him subsequently on that day. Mr. Goetz's evidence is that there were a number of grievances scheduled to be discussed with management on that day and that he remained in the meeting to discuss grievances relating to other union members. Mr. Goetz states that the applicant's grievance was not discussed with management after the applicant left the room. The Union disputes that it failed to properly represent the applicant at the third step meeting.

23On March 7, 2007, the employer responded to the third step meeting by stating that, after reviewing the information presented, it stood by its decision to terminate the applicant's employment.

24The next and final relevant event in this matter occurred on April 18, 2007. If grievances remain resolved following the third step, the practice of the employer and the Union was to involve a Grievance Settlement Officer ("GSO") to try to assist the parties in resolving outstanding grievances prior to a decision being made by the Union whether to refer to arbitration. The evidence indicates that up to eight grievances would be scheduled for a meeting with the GSO. The Union's evidence is that individual grievors generally do not attend the GSO meetings, except where the grievor's employment has been terminated. Where there has been a termination, as in the applicant's case, a specific time is scheduled during the day to discuss the termination grievance so that the grievor can attend only for that part of the meeting.

25Mr. Goetz's evidence is that at the start of the day, the GSO typically will meet with the Union to review the grievances to be discussed that day. Mr. Goetz states that this occurred on April 18, 2007, prior to the applicant's arrival, as his grievance was scheduled for discussion later in the day. Mr. Goetz states that when the Union met with the GSO at the start of the day on April 18, 2007, he was aware that the applicant was planning to bring further medical documentation to the meeting and he advised the GSO of this fact. Mr. Goetz states that the GSO then met with the employer representatives. With regard to the applicant's grievance, Mr. Goetz states that the GSO was told by the employer that it was not interested in reviewing any further medical documentation from the applicant nor was it interested in any resolution that involved the applicant returning to work. However, the employer was prepared to negotiate a severance package for the applicant.

26The applicant attended the GSO meeting on April 18, 2007, accompanied by a person he describes as his "counsellor". He states that this person was not a lawyer or legally trained and had no experience in labour relations or collective agreement matters, and was there only to provide emotional support.

27The applicant takes issue with the fact that, from his perspective, the GSO met with the employer about his grievance before meeting with him and the Union. He also takes issue with the fact that there was no meeting on this day where all parties were present. With regard to the former issue, I take note of Mr. Goetz's evidence that the Union already had met with the GSO to review the grievances tabled for discussion that day prior to the applicant's arrival. In any event, as the mediator, it is up to the GSO to decide which party he wants to meet with first, and this is not the responsibility of the Union. With regard to the latter issue, the evidence I heard from the Union witnesses was that it is common for the GSO to meet separately with the parties to discuss potential resolution rather than having all parties together at the same time. This is common practice at labour mediations and at mediations before this Tribunal.

28The evidence is clear and uncontradicted that the employer did not want to review the additional medical documentation brought to the GSO meeting by the applicant and that the employer did not want to enter into any resolution that involved the applicant returning to work. These were decisions made by the employer, for which no responsibility can be attributed to the Union.

29As stated above, the employer was open to discussing a potential severance package for the applicant and made an opening offer in this regard, which was regarded by the Union and the applicant to be insufficient. A counter-offer was made by the Union, to which the employer responded by increasing its initial offer to $21,000. The employer's final offer was then discussed by the GSO with the applicant and the Union.

30The applicant states that he requested additional time to consider the employer's offer, and was told by Mr. Goetz to "take it or leave it" and that this offer was only open that day. The evidence of the Union officials in attendance at the GSO meeting is that this was stated by the GSO rather than by Mr. Goetz.

31There is no dispute in the evidence that at some point, the applicant's counsellor asked him whether the settlement offer was "enough". The applicant's evidence is that he responded by stating that it was not enough and that he was barely scraping by. The evidence of the Union witnesses is that the applicant responded by stating that the GSO negotiated these kinds of deals all the time and that this was the best that he could get.

32The applicant's evidence is that he was told by Mr. Goetz that he (Mr. Goetz) would not support the referral of the applicant's grievance to arbitration and that the Union was not going to spend $6,000 to take this to arbitration. The applicant states that Mr. Goetz said that he was sick of dealing with the applicant. This is denied by Mr. Goetz and the other Union witnesses. To the contrary, Mr. Goetz states that he was opposed to the settlement because it did not even amount to the applicant's entitlements under the Employment Standards Act ("ESA"). The evidence of the Union witnesses is that it was the GSO who told the applicant that he would not win his case at arbitration, which the Union felt was overstepping the GSO's role.

33The applicant acknowledged in his evidence that at some point during this discussion, he was told by someone from the Union that the settlement offer did not even meet his minimum ESA entitlements. Given this evidence, it is difficult for me to accept that at the same time Mr. Goetz was pressing the applicant to accept the settlement. I also note that the applicant chose not to call the counsellor as a witness in this proceeding. If events at this meeting had transpired as the applicant alleges, I would have expected that this individual would be called to provide evidence to support the applicant's allegations. In the absence of any witness evidence to support the applicant's allegations about what transpired at this meeting, and in light of the consistent evidence of the Union witnesses which contradicts the applicant's evidence, I do not accept the applicant's evidence about this meeting and find it more likely than not that events at this meeting transpired in accordance with the evidence given by the Union witnesses.

34In the end, the applicant accepted the employer's settlement offer at the meeting on April 18, 2007, and signed the settlement agreement and release. The applicant asserted before me that he signed the settlement agreement under duress. However, this allegation already expressly was dealt with in this Tribunal's prior decision in this matter, where it was found that "the applicant was not under duress in any fashion that would bring that settlement into disrepute": see 2011 HRTO 748 at para. 22. The applicant took the position before me that this was just the adjudicator's "opinion". To the contrary, this is an express finding of fact made by this Tribunal after affording the parties an oral hearing and was part of this Tribunal's determination that the Application against the employer should be dismissed.

Analysis and decision

35As I observed in Gungor v. Canadian Auto Workers Local 88, 2011 HRTO 1760, at paras. 43 to 47, a series of decisions by this Tribunal have addressed the issue of when a union can be found liable under s. 6 of the Code on the basis that it has failed to properly or adequately represent one of its members. As stated in Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025, at para. 16:

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. In Traversy v. Mississauga Professional Firefighters Association, Local 1212, 2009 HRTO 996, 2009 HRTO 996, at paragraph 17, the Tribunal stated:

(…) 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 must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.

36These cases are not restricted to situations where a union has failed to file or pursue a grievance on the applicant's behalf. For example, in Traversy, supra, the applicant's allegations included that his union ignored him and failed to advocate on his behalf when his employer refused to accommodate him, and that the union should have acted more forcefully to counter the employer's position in relation to a WSIB claim. While the adjudicator does note that there was evidence before her to suggest that these allegations may not have been factually founded, she nonetheless found that a failure by a union to act or to advocate more strenuously on an applicant's behalf cannot in itself amount to discrimination under the Code.

37In Baylet v. Universal Workers Union, 2009 HRTO 700, the applicant alleged that the union discriminated against him when it failed to assist him in enforcing his right to be free from discrimination from the employer and that the union condoned the employer's discrimination when it failed to act on his behalf by contesting the disability-based harassment and discrimination that he says he experienced. In finding that this was not a sufficient basis upon which to found union liability, the adjudicator stated (at paras. 17 to 19):

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 interfered with the accommodation process or made its decision not to represent the applicant because of discriminatory factors. Both of these assertions would require a factual underpinning.

One can not presume that a union's failure to act was based on discriminatory beliefs. There may be many reasons why a union might choose not to pursue a human rights claim on behalf of an employee that have no discriminatory overtones. As such, it is essential that a factual basis for the alleged discriminatory conduct be established. A claim of discrimination must go beyond the mere fact that a particular union did not act.

In this case, there are no allegations against the Union apart from the fact that it did not complain about the Employer's conduct. The applicant concedes that this is the sole reason for his Application against this Union. This is not a sufficient basis upon which to file an Application under the Code. Accordingly, I find that the applicant has failed to establish a prima facie case against the Union and as such, the Application against the Union is dismissed.

38In sum, this Tribunal has held that, in the absence of evidence that a union's action or inaction was based on a discriminatory factor, not only is a union's failure to file or pursue a grievance not in itself discriminatory, but so is a union's failure to advocate on the applicant's behalf or its failure to assist an applicant in addressing discrimination or to contest the employer's actions. This kind of conduct may or may not provide a basis for a duty of fair representation complaint against the union under s.74 of the Labour Relations Act. But it is not this Tribunal's jurisdiction to determine whether a union fairly or adequately represented a member in the absence of evidence that its conduct was based on a discriminatory factor. That is the role and jurisdiction of the Ontario Labour Relations Board.

39In my view, the essence of the applicant's allegations is: that he believes that the Union did not do enough to assist him in forestalling the termination of his employment by the employer; that the Union did not do enough to adequately represent his interests in the grievance process; and that he felt pressured by the Union to accept an improvident settlement on the basis of an alleged threat by Mr. Goetz not to support referral of the matter to arbitration. I already have made a factual finding that I do not accept the applicant's evidence that Mr. Goetz said he would not support referral of the applicant's grievance to arbitration. However, in the absence of evidence that any of the Union's actions were based upon a discriminatory factor – in this case, the applicant's disabilities – there is no basis in the applicant's allegations to find that the alleged inadequacy of the Union's representation of his interests support a violation of the Code.

40There is no actual evidence before me to indicate that the Union treated the applicant differently than other Union members because of his disabilities. The applicant stated in his evidence that absences from work by other employees had been excused by the employer without requiring the degree of medical documentation that was required of him. This is disputed by the Union. In any event, even if what the applicant alleges is true, the sufficiency or otherwise of medical documentation to support an extended absence from work is a matter determined by the employer and not by the Union. What is lacking in this case is any evidence that the Union more actively pursued the interests of some other member(s) who were absent from work without adequate medical documentation than it did the interests of the applicant, and that the applicant's disabilities were a factor in any comparative lack of effort by the Union.

41At the hearing, I invited the applicant to provide any specific evidence he had to support that the Union or the personal respondents had discriminated against him because of his disabilities. In a document filed by the applicant with the Tribunal dated June 20, 2011, the applicant alleged that he was belittled by Mr. Goetz in relation to his disabilities, but failed to provide any specifics or particulars to support this claim. At the hearing, I afforded the applicant an opportunity to provide these specifics or particulars. He produced a document that he had provided to the Commission in support of his complaint, which had never been disclosed to the respondents or filed with the Tribunal. The applicant stated that he believed that all materials he had provided to the Commission would automatically be transferred to the Tribunal, which is not the case.

42In any event, I nonetheless allowed the applicant to provide evidence setting out any specifics or particulars in support of his allegation that Mr. Goetz had made discriminatory comments about his disabilities. The applicant responded by giving evidence about being heckled at work after he completed an alcohol treatment program in 1992. I advised the applicant that this was too far afield from the events at issue in this case, which occurred some 15 years later, and I afforded him a break in the hearing to provide me with any specific details of alleged discriminatory comments by Mr. Goetz or any other Union official that were closer in time to the events at issue.

43Following the break, the applicant provided evidence about being called "stupid", "shithead" or "asshole" by Mr. Goetz. When the applicant was going through a divorce, it is alleged that Mr. Goetz said that his wife must have been a "dumb bitch" to marry the applicant. It is alleged that Mr. Goetz also referred to the counsellor who accompanied the applicant to the GSO meeting as a "dumb bitch". The applicant states that at one point in December 2005, he made inquiries about seeing the company doctor for an assessment and was chastised by Mr. Goetz for wanting to see the company doctor. The applicant states in 2005 that he asked the company to do alcohol testing on him, and Mr. Goetz asked why he would be so stupid as to do something like that, that the applicant knew he would fail, and that the applicant was a "loser". The applicant alleges that there were constant accusations by Mr. Goetz that he was still drinking, based on puffiness and dark circles under the applicant's eyes. When I asked the applicant when these comments are alleged to have been made, the applicant replied that it might have been four or five years ago. When I asked if the applicant could provide a specific occasion when Mr. Goetz is alleged to have said this, or even a timeframe or a context in which Mr. Goetz is alleged to have said this, the applicant could not do so. The applicant stated that he had no other evidence to provide regarding alleged discriminatory comments made by Mr. Goetz or any other Union official.

44I ruled that I would not consider the applicant's evidence regarding alleged discriminatory comments or require the respondents to adduce evidence in response. I made this ruling for two reasons. First, the applicant had failed to provide any specific details or particulars regarding these alleged comments to the respondents at any time prior to the hearing. Even at the hearing itself, many of the alleged comments were entirely devoid of any timeframe or context. In such circumstances, it would be unfair to require the respondents to respond on the fly to vague allegations they were hearing for the very first time. The applicant had an opportunity to provide these specific details or particulars in his complaint, in his statement of additional facts, and in the description of his evidence that was to have been filed in advance of the hearing, but he failed to do so. In these circumstances, I was not prepared to allow the applicant to raise new allegations that had not previously been disclosed.

45The second reason that I ruled against allowing this evidence is that I did not see a sufficient connection between many of the alleged comments and the issues regarding the applicant's disabilities to establish their relevance to the matters at issue in this proceeding. Even if Mr. Goetz called the applicant names and did not like the applicant, which I understand is disputed by Mr. Goetz, this does not serve to establish a connection between such alleged comments or dislike and the applicant's disabilities sufficient to afford me with a proper basis to infer that the applicant's disabilities were a factor in the actions of Mr. Goetz or the Union at issue in this proceeding. The only alleged comment that comes even close to having a nexus or link to the applicant's disabilities is the alleged comment about the applicant's drinking, for which the applicant was unable to provide any specific details, timeframe or context.

46As a consequence, the evidence before me is not sufficient to establish on a balance of probabilities that the applicant's disabilities were a factor in how he was treated by the Union or the personal respondents.

47For all of these reasons, the Application is dismissed.