Cook v. Civic Institute of Professional Personnel, 2012 HRTO 1270

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Craig Cook Applicant

-and-

Civic Institute of Professional Personnel Respondent

DECISION

Adjudicator: Alison Renton Date: June 27, 2012 Citation: 2012 HRTO 1270 Indexed as: Cook v. Civic Institute of Professional Personnel

APPEARANCES

Craig Cook, Applicant (Self-represented) Civic Institute of Professional Personnel, Respondent (David Migicovsky, Counsel)

INTRODUCTION

1In this Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on March 9, 2011, the applicant alleges discrimination in employment on the basis of disability.

2The respondent filed a Response denying the allegations. It subsequently filed a Request for Summary Hearing (“the Request”) requesting that the Tribunal schedule a Summary Hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure. The respondent submits that based upon the allegations, there is no reasonable prospect that the Application will succeed as the applicant has not established a prima facie case of discrimination.

3The applicant filed a Response to the Request on June 21, 2011, in which he disagrees with the respondent’s Request and submits that his Application should not be dismissed. He also filed a Reply dated June 22, 2011, to which he attached various documents.

4The Tribunal issued a Case Assessment Direction (“CAD”), dated July 6, 2011, granting the respondent’s Request for Summary Hearing. It stated that the Tribunal’s Registrar would schedule a half-day summary hearing by teleconference and directed the applicant to proceed first during the summary hearing and to be prepared to answer the respondent’s arguments in its Request for Summary Hearing. It directed the parties to deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 14 days prior to the teleconference.

5Initially, the Summary Hearing by teleconference was scheduled for December 8, 2011, then adjourned to December 18, 2011, at the request of the applicant, and then January 12, 2012, at the request of the respondent and on which it was held (“the hearing”). Neither party filed additional documents or cases in advance of the summary hearing.

6During the hearing, a factual issue arose as to whether or not the applicant provided a copy of Dr. Lee’s medical file to the respondent. The applicant stated that he had provided the respondent with the medical file, but the respondent denied receiving it, although it acknowledged receipt of a note from Dr. Lee. A Case Assessment Direction (“January CAD”) dated January 27, 2012, was issued to the parties directing the applicant to provide proof that he previously provided Dr. Lee’s medical file to the respondent. The applicant responded with correspondence dated January 30, 2012 and the respondent responded with material dated February 7, 2012. The contents of their respective correspondence is set out below.

BACKGROUND

The Applicant’s Position

7The applicant was an employee of the City of Ottawa (“the City”) and a member of the respondent. In 2007, the applicant states, he became depressed, self-medicated with drugs and alcohol, and took a leave of absence from work. His last day worked was August 20, 2007. He contacted various managers with the City and told them that he was unable to report for work until November 2007. Despite those communications, the City terminated his employment in October 2007 for unauthorized absence from work. The City also notified him that it had overpaid him $3,000, an amount the City required to be repaid (“the overpayment”). Subsequent to his termination, the applicant sought medical assistance. His medical assistance changed when his attending psychiatrist passed away and he had to find another physician.

8The applicant’s father contacted the respondent in December 2007 in an effort to get the applicant’s job back.

9In September 2008, the applicant alleges, he contacted the respondent to inquire about issues pertaining to his employment and termination from the City including an insurance claim, the overpayment, severance pay and the possibility of being reinstated. The applicant advised the respondent’s representatives, with whom he met, that he battled depression, and continued to do so, and self-medicated with drugs and alcohol. The applicant filled out the necessary medical forms so that the respondent could access his health records. The applicant alleges that the respondent did not tell him about the Human Rights Tribunal of Ontario, or limitation periods, but did tell him not to seek legal counsel, which, relying upon the respondent’s representations, he did not do. After his discussion with the respondent, the applicant thought that the respondent would start to work on his behalf.

10The applicant alleges that he followed up a number of times with the respondent and each time was told that they were working on his file. As the months went on, the applicant alleges, the respondent became increasingly difficult to reach and in August 2010 he was shocked and disappointed to find out that they had determined not to pursue his case and they could not pursue benefits with the insurance company.

11During this period that he believed the respondent was working on his behalf, the applicant remained disabled, unable to work and under the care of a psychiatrist. In November 2010, he was able to commence work again. Prior to this, he was unable to act on his own behalf, and he alleges that the respondent knew this.

12The applicant alleges that the respondent discriminated against him on the basis of disability by failing to file a grievance and failing address his other work issues while leading him to believe that it was pursuing these issues. The respondent purposively neglected his file, the applicant alleges in his Application, because his depression prevented him from properly challenging their actions.

13During the conference call hearing, the applicant also alleged that the respondent’s failure to pursue his issues with the City was because he had advised the respondent of his previous drug use. He claims that the respondent treated him differently after he was terminated and after he disclosed his drug use than it had treated him in 2004 and 2006 when he had some other issues that involved the respondent. The applicant asserts that if he had cancer, rather than drug use and other issues, then the respondent would have treated him better.

14The applicant also stated that he has his doctor’s medical file as well as an invoice for it, and that he provided medical documentation to the respondent. The applicant stated, during the teleconference, that he does not have proof that he provided the respondent with a copy of his doctor’s medical file and confirmed that he did not file with the Tribunal either the medical file or proof that it was provided to the respondent.

15Subsequent to the January CAD, in his correspondence dated January 30, 2012, the applicant provided the Tribunal and the respondent with a copy of a medical consent form, signed January 19, 2010, authorizing Dr. Lee to release her files to the respondent and an invoice from Dr. Lee’s office, dated March 8, 2010, in the amount of $45.00 “sold to” the applicant for a “Chart trsf. To Sheila Stenislawski”.

The Respondent’s Position

16In its Response, the respondent noted that it was the applicant’s bargaining agent, not his employer, and that the City has been the applicant’s employer. The respondent disputes the allegations against it in the Application and disputes that it discriminated against the applicant, or treated him differently, on the basis of disability.

17The respondent alleges that it was copied on the City’s correspondence to the applicant in October 2007. That correspondence stated that the applicant was on an unauthorized leave of absence, needed to supply the City with a medical certificate, and warned the applicant that he would be terminated if he did not provide information to the City about his medical situation or his intentions of returning to work. The respondent attempted to contact the applicant, it alleges, after the City’s letter was issued, to tell the applicant to respond to the City’s letter. However, the applicant’s telephone number was not in service. On October 17, 2007, the City terminated the applicant’s employment.

18The respondent agrees that the applicant’s father contacted it in December 2007. The respondent submits that it told the applicant’s father that it needed the applicant to sign a release in order for the respondent to speak with the respondent.

19On September 19, 2008, almost a year after his termination, the applicant himself contacted the respondent for the first time and told it that he wanted severance pay from the City. The respondent told him that he would need to provide proof of his illness in order to explain his absence from work and to allow the respondent to enter into discussions with the City. The applicant indicated that he understood this requirement. On October 23, 2008, the applicant met with the respondent to discuss his situation, but he failed to provide them with any documentation to substantiate his illness. He was told that without adequate medical documentation, there was little, if anything, the respondent could do for him. On November 18, 2008, he communicated with the respondent to advise that he was attempting to get medical documentation from his doctor.

20Almost another year later, on September 23, 2009, the applicant contacted the respondent and indicated that he was still attempting to get the medical documentation. On January 19, 2010, he met with representatives of the respondent who provided him with a release authorizing the applicant’s physicians to send the contents of their files to the respondent. The applicant advised the respondent that he would sign the release and personally provide it to his doctor. However, the respondent never received the medical files. The respondent also met with the applicant’s friends and family member in order to obtain the medical documentation, but no relevant information was forthcoming. In August 2010, the applicant met with the respondent. He indicated that he had been unable to obtain any medical documentation, thanked the respondent for its efforts and that ended the respondent’s involvement.

21During the conference call hearing, the respondent submitted that it told the applicant about the necessity of providing medical documentation, supplied releases for the applicant to sign to obtain such documentation, and told the applicant that without the medical documentation there was little, if anything, that it could achieve with the City. The applicant failed to supply the required medical documentation, although the respondent agreed that it received a note from Dr. Lee, undated, that indicated from August 1 to November 30, 2007, the applicant was unable to work. The respondent submits that whether or not the applicant provided the respondent with Dr. Lee’s medical file was a factual dispute between the parties, noting that the applicant claims to have provided his doctor’s file to the respondent.

22The respondent submits that the applicant’s allegations amount to a claim that the respondent ought to have done more. That, the respondent submits, is more appropriately the subject of a possible duty of fair representation complaint before the Ontario Labour Relations Board, but does not, it submits, establish a prima facie breach of the Code and the Application should be dismissed by the Tribunal. The applicant’s assertion that the respondent did not take certain actions because of his alleged drug use, or that if he had cancer the respondent would have done more for him, does not establish that he was subjected to differential treatment. The respondent, in previous years, was sometimes successful in assisting the applicant, despite not filing a grievance, and sometimes was not successful in assisting him.

23As part of it February 7, 2012 materials, the respondent submitted an affidavit of Sheila Stanislawski, the Executive Director of the respondent, denying the applicant’s allegation that the respondent treated him differently once he disclosed drug usage and denying that the respondent received Dr. Lee’s medical file. In the affidavit, Ms. Stanislawski deposes that she attended Dr. Lee’s office in-person after receiving the applicant’s January 30, 2012 materials, spoke with a representative of Dr. Lee’s office and showed her the March 8, 2010 invoice. The representative, Ms. Stanislawski deposes, indicated, amongst other things, that the payment was not received on March 8, 2010, and the file was not sent to the respondent in March 2010, but, rather couriered to the respondent in July 2011, after the respondent made its Request for Summary Hearing, although there is no documentation confirming that the file was signed for by the respondent. Ms. Stanislawski deposes that Dr. Lee’s medical file has never been received by the respondent and that it has never paid the $45.00 fee from Dr. Lee’s office.

DECISION

24The issue in a summary hearing is whether the Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

25In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-10, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

26As the Tribunal stated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17:

The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one’s Code rights.

27In this Application the applicant has alleged that the respondent has discriminated against him in employment. The respondent has clarified that it was the bargaining agent for the applicant, not his employer, which is not disputed by the applicant.

28The applicant alleges that the respondent discriminated against him on the basis of disability because subsequent to his termination and after he disclosed that he used drugs, it “treated him differently” than it had treated him in 2004 and 2006 when he had other employment issues. The issue before me is whether the facts that the applicant relies on could reasonably support a finding that the respondent violated his rights under the Code. In this case, I find that they cannot.

29The applicant alleges that the respondent did not pursue his issues once he identified that he had used drugs and he alleges that he was treated differently by the respondent after his termination than he had been treated in 2004 and 2006 when he had other work issues with the City. While he did not specifically state how he was treated differently, it is not disputed that the respondent did not file a grievance on the applicant’s behalf addressing his termination, his long term disability benefit entitlement, or the overpayment that the City sought from him.

30The documentation from 2004 and 2006, which was provided by the respondent, shows that from late 2003 until approximately September 2004 the applicant and a representative from the respondent were in contact, by email, with respect to an issue about the applicant’s pay. Despite their communications, and some apparent discussion by both with the City, the applicant’s pay did not appear to change in his favour. The issue in 2006 appears to be discipline that was issued to the applicant by the City at a meeting in February 2006 with some emails being exchanged between the respondent’s representatives and the City before the discipline was imposed and advising the respondent that a meeting would be held. In neither case is it asserted that a grievance was filed by the respondent.

31A number of emails from December 2007 to January 2010 were attached to the respondent’s Request and the applicant’s Reply showing correspondence between the respondent, the applicant, members of his family and his girlfriend, and the City subsequent to the applicant’s termination. The emails show that the applicant’s family contacted the respondent within a couple of months after the applicant’s termination seeking the respondent’s assistance in salvaging the applicant’s employment, amongst other issues. The emails also show the respondent responding to various emails sent by the applicant, his family and his girlfriend, requesting and setting up meetings with them and indicating that several meetings were held with the applicant, and requesting information from the City.

32It is not disputed by the parties that the respondent told the applicant that it required his physicians’ medical files, as well as his employment files. It is not disputed that the respondent obtained the applicant’s employment files from the City. The respondent does not dispute that it received one medical note from Dr. Lee, but the parties are in dispute as to whether or not the applicant sent Dr. Lee’s medical file to the respondent. There is no dispute that the respondent gave the medical consent form for the applicant, who signed it and told the respondent that he would give the consent form himself to Dr. Lee.

33In my opinion, the dispute as to whether or not the applicant sent the respondent Dr. Lee’s medical file, or caused it to be sent, does not need to be resolved. Whether or not it was sent does not establish one way or another whether the respondent discriminated against the applicant – if the file was sent, the applicant’s assertion is essentially that the respondent failed to act with respect to his rights, which is the same assertion being made if the file was not sent.

34Although it may be surprising that the respondent did not file, for example, a grievance pertaining to the applicant’s termination, I find that the applicant has no reasonable prospect of demonstrating that the respondent’s actions towards him could be considered unequal treatment on the basis of his disability.

35The Tribunal does not have the power to deal with general allegations of unfair treatment by unions or employee associations. The Tribunal can only deal with allegations of discrimination or harassment which are based on the prohibited grounds set out in the Code. In keeping with this, the Tribunal has found that it is not discrimination for a union or an employee association to decide not to pursue a grievance, or address a member’s issues, unless its decision is linked, in whole or in part, to a prohibited ground of discrimination under the Code: see Baylet v. Universal Workers Union, 2009 HRTO 700, at paras. 17-19; Traversy v. Mississauga Professional Firefighters Association, 2009 HRTO 996, at para. 33; Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025, at paras. 16-17; Koroll v. Automodular, 2011 HRTO 774, at paras. 71-73; Gungor v. Canadian Auto Workers Local 88, 2011 HRTO 1760, at paras. 42-47; and Taylor-Cole v. Orangeville Police Association, 2011 HRTO 2285, at para. 9.

36As stated in In Traversy v. Mississauga Firefighters’ Association, the Tribunal stated, 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.

37In this Application, the applicant’s allegations certainly reflect dissatisfaction with the respondent, its failure to file a grievance on his behalf, and its failure to obtain results for the applicant with the city. However, as set out above, and even accepting the applicant’s allegations to be true, I do not find that there is either direct or indirect evidence to which the applicant can point to demonstrate that the respondent’s failure to act was based upon discriminatory factors; the Application has no reasonable prospect of success.

38Therefore, the Application is dismissed.