Estraia Madassa v. Amalgamated Transit Union, Local 113, 2012 HRTO 150

Human Rights Tribunal of Ontario

Between:

Estraia Madassa Applicant

• and -

Amalgamated Transit Union, Local 113 and Bob Kinnear Respondents

Decision

Adjudicator: Maureen Doyle Date: January 20, 2012 Citation: 2012 HRTO 150 Indexed as: Madassa v. Amalgamated Transit Union, Local 113

Appearances and Written Submissions

Estraia Madassa, Applicant Harry Kopyto, Representative and Estraia Madassa

Amalgamated Transit Union, Local 113, Bob Kinnear, Respondents Barry Chercover, Counsel

1In this Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), the applicant alleges discrimination in employment on the basis of race and colour. Though the applicant has neither checked off "sex" as a ground she believes applies to her situation, nor has she answered the question on the pre-printed Application form that asks applicants alleging discrimination on the basis of sex in employment to "explain why you believe you were discriminated against based on your sex", I note that at various places in her Application, she appears to allege that she has also been discriminated against on the basis of sex. She also alleges that she was discriminated against on the basis of her association with another named individual, though she provides no information about this individual.

2The Respondents deny any discrimination and in their Response describe circumstances which they submit explain why their actions were not discriminatory contrary to the Code. Additionally, they submit that the Application should be dismissed for no prima facie case or for delay, and, in the event that the Application is to be permitted to proceed, request that the individually named respondent, Mr. Kinnear, be removed as a respondent.

3Where applicants intend to prove a version of the facts different from those set out in a Response, they are required to deliver and file a Reply, unless it is already contained in the Application (Rule 9.1). The applicant has not filed a Reply and the time for doing so under Rule 9.3 has passed.

4On July 4, 2011, the Tribunal issued a Case Assessment Direction ("CAD"), directing on its own initiative that a Summary Hearing be held to determine whether the Application should be dismissed on the basis that there is no reasonable prospect it will succeed. In the CAD, the Tribunal directed that at the Summary Hearing, the applicant should make argument about why the Application should not be dismissed as having no reasonable prospect of success and point to the evidence upon which she would rely to prove a link between the respondents' actions and the grounds cited, given the explanation provided in the Response. The lack of a Reply from the applicant was noted in the CAD. Additionally, the CAD directed that the applicant should be prepared to make argument about why the Application should not be dismissed as outside the one year period for filing a timely application set out in s. 34 of the Code, as well as the question of whether Mr. Kinnear should be removed as a respondent.

Background

5The applicant was discharged from her employment, where she had been represented by the respondent union. She filed a grievance regarding her termination. Grievances are subject to the union's internal decision making process regarding whether to refer them to arbitration. This process requires the member seeking to have his or her grievance referred to arbitration to gain approval first from the Local Executive Board, following which the question is considered at a meeting of union members.

6The applicant alleges that when the question of referral of her grievance to arbitration came before the members for their decision at a meeting on April 19, 2009, the President of Local 113, the personal respondent Mr. Kinnear, ordered that the decision would be by means of a secret ballot vote. She identifies herself as an Indian Guyanese woman and alleges that a "ballot vote" is not the norm, but was ordered because she is an Indian woman. Rather, she alleges that the norm is a "seconder vote". She also alleges that there were many people at the members' meeting who she does not recall having been there before and that this concerned her.

7She alleges that Mr. Kinnear advised her that a ballot vote was taken because the allegation leading to her termination was "member on member" but that at the members' meeting the following month, no secret ballot vote was ordered when a white member sought to have his grievance proceed to arbitration after he was "charged with 13 counts of sexual assault on a female co-worker also a union member". Additionally, she alleges that several months later a ballot vote was ordered for a black man. She alleges that Mr. Kinnear has ordered ballot votes only for black members and never for any white person, to her knowledge.

8The decision at the April 19, 2009 meeting was to refer her grievance to arbitration, but the applicant also alleges that Mr. Kinnear makes the decision regarding which "law firm/lawyer" to hire and he has "made sure that the alleged victim and witness in my case are being better represented than I", that she has been told by individuals at the local union not to enter into any communication with the lawyer representing her, but only to communicate through the union Local, and she alleges that her grievance arbitration has "moved beyond less than a snail pace where as other arbitration cases after mine are moving at extreme speeds with multiple dates at a given month".

9By way of remedy, she seeks $100,000.00 in financial compensation for "mental and emotional distress".

10The respondents allege that the applicant's employment was terminated for allegedly bullying and physically assaulting a co-worker. They submit that the by-laws of the union local provide that an electronic voting machine may be used for secret ballot voting at the discretion of the local Executive or where the majority of members so decide "where the matter is of a sensitive nature". The respondents allege that a number of the applicant's co-workers have made statements which "if true, support the allegations of the alleged victim". Following the Executive Board's recommendation to proceed to arbitration with the applicant's grievance, the respondents allege that at the members' meeting on April 19, 2009, "a number of members were extremely upset that Local 113 would support someone who had assaulted and bullied a fellow co-worker, while others were upset that a member had been dismissed because of allegations from fellow members". The respondents allege that the nature of the allegations and the reaction of members at the meeting indicated that the matter was of a sensitive nature and that, in these circumstances, it was in accordance with the union Local's by-law that Mr. Kinnear ordered the use of the electronic voting machines and held a secret ballot. The respondents also allege that secret ballot votes have been held for white persons and provide what they indicate is not an exhaustive list of the names of seven white individuals for whom such a vote was ordered between 2000 and 2008.

Summary Hearing

11A Summary Hearing was held by teleconference on December 12, 2011.

12At the Summary Hearing the applicant's representative, who described himself as a "co-representative, along with the applicant herself", submitted that there have been other clearly "sensitive" cases, such as the one noted in the Application, considered for referral to arbitration where white men were not subject to the same secret ballot as the applicant. He submitted that there was no reason to justify a vote by anything other than "public handraising" and that the applicant had been subject to differential treatment which was discriminatory. He submitted that the ballot vote was ordered with the intent to block the applicant's grievance from proceeding to arbitration. He submitted that the matter should proceed to hearing if the applicant can point to evidence that the practice of ordering a ballot vote is discretionary and that this discretion has never before been exercised when the union was dealing with similar sensitive issues.

13At the Summary Hearing, the applicant reiterated her claim that a white man had been accused of 13 counts of sexual assault, member on member, but that Mr. Kinnear had held a "seconder vote" only. With regard to the respondents' list of white members who were subject to a ballot vote, she stated that the grievances of those members related to charges of theft. She also alleged that there were people at the April 2009 members' meeting who never attended meetings before and who were told to come.

14At the Summary Hearing, counsel for the respondents made reference to their Response in which they submit that the applicant has simply made bald allegations of discrimination devoid of any factual allegations to support her claim. He submitted that the union constitution provides for discretion in ordering a ballot vote where there is a sensitive issue. He reiterated the respondents' assertion that there were two factions at the April 2009 members' meeting, some concerned about member on member violence and some disagreeing with a member making allegations against another member. He reiterated that Mr. Kinnear decided that the matter was sensitive and ordered a ballot vote.

15At the Summary Hearing, the parties also addressed the respondents' argument that the Application was untimely and the respondents' request that Mr. Kinnear be removed as an individual respondent. As I have determined that this case does not have a reasonable prospect of success, I do not need to consider the questions of timeliness or the removal of the individual respondent.

Analysis

16In a summary hearing, the issue 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 a part thereof will succeed. It is outlined in Rule 19A of the Tribunal's Rules of Procedure:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an 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.

17In Dabic v. Windsor Police Service, at paras. 8 and 9, 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.

18The applicant has alleged that she was discriminated against on the basis of race and colour, and perhaps also sex. In responding to the Tribunal's direction in the CAD that she point to the evidence upon which she would rely to prove a link between the respondents' actions and the grounds cited, especially in light of the Response, at the Summary Hearing, the applicant has simply pointed to an instance where a white man who was accused of sexual offences against his co-workers did not have a ballot vote called in the matter of referral of his grievance to arbitration, and an instance where a black man did have a ballot vote called in the matter of referral of his grievance to arbitration. The Response indicated that a ballot vote was called in the applicant's case as the matter of her grievance was determined to have been of a sensitive nature due to the nature of the allegations leading to her termination and the reaction of members at the meeting. She has not refuted this.

19While I appreciate that the applicant takes the position that the example of the white man to which she points also is a sensitive matter, even if it was established that no ballot vote was taken in his case this fact would not be a sufficient basis on which the Tribunal could draw an inference that the respondents' treatment of her was based on her racial background, colour, or sex. There could be a number of reasons for the difference in the way the vote was taken, and she has not pointed to evidence which she has or which is reasonably available to her which establishes that she has a reasonable prospect of proving on a balance of probabilities that her Code rights were violated. I note, for example, that the union has indicated that there were two factors considered in determining that hers was a sensitive case where a ballot vote was required: the nature of the allegations against her and the reaction of members at the meeting. She has pointed to no evidence which she would call to indicate that the reaction of members at the meeting where his case was discussed was such that it should be found to have been an equally sensitive issue. In any event, she has not pointed to evidence which would prove a link between the respondents' actions and her race, colour, or even sex.

20Similarly, the fact that the applicant is able to point to a black member whose grievance referral was the subject of a ballot vote does not establish a link between the respondents' actions in her case and the grounds cited. She has provided no information regarding the matter before the members or the vote involving that member.

21Though the applicant had said in her initial Application that ballot votes had not been called in order to determine whether the grievances of white members would be referred to arbitration, when provided with a list of a number of white members for whom ballot votes were taken, she simply stated that those cases involved allegations of theft. It is not at all clear how the fact that their grievances involved allegations of theft distinguishes them in any meaningful way which would prove a link between the respondents' actions and the grounds cited.

22Further, it is not clear how the applicant's allegations regarding the fact that a ballot vote was taken would support a finding of discrimination. By means of the ballot vote, the applicant's grievance was referred to arbitration. Though the applicant's "co-representative" has submitted that the ballot vote was called in an effort to block her grievance from proceeding to arbitration, he has pointed to no evidence which would be relied upon to prove that allegation. Further, it is not at all clear that the outcome of a vote taken by hand-raising would have resulted in her grievance being referred to arbitration. It is possible that the result may have been less favourable to her. The applicant has not pointed to any evidence which would establish a link between the respondents' actions and discrimination on the grounds cited.

23At the Summary Hearing, the applicant made no submissions and pointed to no evidence which she would rely upon with regard to her allegations that once the matter was referred to arbitration, the individual respondent chose inferior legal representation for her, the union did not permit her to communicate with the chosen lawyer directly, or that her grievance has moved more slowly than other grievances. In the face of these bald assertions, therefore, with the applicant pointing to no evidence upon which she would rely to prove a link between the respondents' actions and the grounds cited, there can be no reasonable chance of her success. Additionally, the applicant sought an adjournment of the Summary Hearing on the basis that the law firm representing the respondents was the same firm as that chosen by the union for her grievance arbitration. This request for an adjournment was denied in Madassa v. Amalgamated Transit Union, Local 113 2011 HRTO 2204. I note, however, that though the applicant maintains that the personal respondent chose inferior counsel for her arbitration, he appears to have chosen the same law firm to represent him personally in this Application.

24Finally, s.12 of the Code provides that "[a] right .... is infringed where the discrimination is because of relationship, association or dealings with a person or persons identified by a prohibited ground of discrimination." As noted above, while the applicant alleged in her Application narrative that she was discriminated against on the basis of her association with another named individual, she has provided no information about this individual. As such, the applicant has not pointed to anything specific that suggests a link between any alleged differential treatment and her association with someone identified by a ground in the Code.

25If this Application were to proceed to a hearing, to be successful the applicant would have to be able to show that the respondent has treated her differently than others and discriminated against her based on the cited grounds for her Application. The applicant has not been able to point to evidence that she has or that is reasonably available to her which can show a link between the events complained of and the alleged prohibited grounds.

26For all the reasons set out above, I therefore do not find that there is a reasonable prospect that the Application will succeed and it is dismissed.