HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Robert Sells Applicant
-and-
Kawartha Pine Ridge District School Board Respondent
INTERIM DECISION
Adjudicator: Geneviève Debané Date: June 25, 2012 Citation: 2012 HRTO 1238 Indexed as: Sells v. Kawartha Pine Ridge District School Board
APPEARANCES
Robert Sells, Applicant Self-represented
Elementary Teachers’ Federation of Ontario, Respondent Stephanie Hobbs, Counsel
Kawartha Pine Ridge District School Board, Respondent Colin Youngman, Counsel
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. The respondents have each filed Responses denying the allegations in the Application.
2In a Case Assessment Direction dated October 27, 2011, the Tribunal granted the Elementary Teachers’ Federation of Ontario’s (the “Union”) request for summary hearing.
3On June 11, 2012, an in-person summary hearing was held in order to determine whether there was no reasonable prospect that the Application as against the respondent Union would succeed at a hearing.
4The Kawartha Pine Ridge District School Board (the “Board”) participated in the hearing via telephone conference and took no position during the summary hearing.
Background
5The applicant is employed by the Board as a Teacher and his terms and conditions of employment are governed by a series of collective agreements between the Board and the Union.
6The Application alleges that the Board did not accommodate the applicant’s disability, a visual impairment caused by diabetes, when it refused to permit him to attend a school trip, and during his attendance at the student’s graduation ceremony.
7The Application alleges that the Union ignored and failed to acknowledge that the applicant had a disability. The applicant also made reference to conduct by the Union at a disciplinary meeting in April 2010, stating that the Union president took very good notes at the meeting but that he did not say anything on the applicant’s behalf. Subsequent to this meeting the Board disciplined the applicant. The applicant states that the Union failed to retain a lawyer to challenge this discipline or to otherwise represent him.
8In the Reply to the Union’s request for a summary hearing, the applicant also took the position that the Union was reprising against him because of certain positions that he had taken in the past during collective agreement negotiations. In conclusion, the applicant stated that the Union had failed to protect him or do anything on his behalf.
9The Union took the position that it had fairly represented the applicant. With respect to the discipline that was imposed by the Board, it was the Union’s position that the Board had just cause to discipline the applicant and that a grievance would therefore not be successful.
10Regardless, the Union argued that the applicant had not indicated that there was any evidence to support the claim that the Union had treated the applicant in a discriminatory manner, and as such, the Tribunal did not have jurisdiction over the subject-matter of the Application with respect to the Union.
Decision
11The Tribunal has held that it is not discrimination for a union or association to decide 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. In Traversy v. Mississauga Firefighters’ Association, 2009 HRTO 996, the Tribunal stated as follows 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. See also Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 at paras. 16-18.
12The applicant is dissatisfied with the Union’s representation of his interests throughout his interactions with the Board. However, this is not the issue, the issue is whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him can show a link between the conduct of the Union and his disability (Dabic v. Windsor Police Service, 2010 HRTO 1994).
13Having reviewed the submissions of the parties and the documents filed by the applicant, this Tribunal finds that there is no reasonable prospect that the applicant can succeed in proving that the Union breached the Code. Though the applicant asserts that the Union did not acknowledge his disability, this is an impressionistic assumption made by the applicant for which he provided no evidence. The evidence that he did provide was that the Union did not acknowledge that the applicant’s disability was a factor in the applicant’s alleged misconduct and that a grievance would therefore be unsuccessful. The applicant did not point the Tribunal to any other evidence which could establish that the Union’s conduct was discriminatory, including its refusal to take forward any grievances on his behalf.
Order
14The Tribunal Orders that the Application against the Elementary Teachers’ Federation of Ontario is dismissed and the style of cause is amended to remove its name.
15I am not seized.
Dated at Toronto, this 25th day of June, 2012.
Signed by
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Geneviève Debané Vice-chair