Brown v. Kensington Garden, 2012 HRTO 1511

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hyacinth Brown

Applicant

-and-

Kensington Garden

Respondent

INTERIM DECISION

Adjudicator: Keith Brennenstuhl

Date: August 2, 2012

Citation: 2012 HRTO 1511

Indexed as: Brown v. Kensington Garden

APPEARANCES

Hyacinth Brown, Applicant

Michelle Velvet, Counsel

Kensington Garden, Respondent

P. Christopher Lloyd, Counsel

Canadian Union of Public Employees, Local 4599, Respondent

Ryan Goldvine, 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 race and disability.

2Pursuant to Rule 19A of the HRTO Rules of Procedure, a summary hearing to determine whether there is a reasonable prospect of success of the Application as against the respondent union (the “Union”) was ordered in a Case Assessment Direction (“CAD”) issued on October 31, 2011. The CAD explained the basis for the summary hearing as follows (at paras.4-5):

The Tribunal does not have the general power to deal with allegations of unfairness or to apply the duty of fair representation by unions or employee associations. It can only deal with alleged discrimination or harassment on the grounds set out in the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”).

The 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 of 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. There does not appear to be an allegation with a reasonable prospect of success that the union’s actions of failure to act was based on discriminatory factors.

Background

3The applicant was hired by the respondent, Kensington Gardens (“KG”) on or about January 17, 2002 in the position of Registered Practical Nurse. KG is a not for profit ambulatory and long-term care facility.

4Employees of KG, including the applicant are covered by a Collective Agreement between KG and the Union.

5The applicant indicates that in 2008 and 2009 she received work-related injuries to her knee for which she received modified duties from KG.

6On or about September 30, 2010 the applicant’s employment was terminated. According to KG, the termination was for cause. The Union grieved the applicant’s dismissal and on or about April 2, 2011 the applicant, the Union and KG entered into a Last Chance Agreement. The applicant was reinstated to her position on or about April 11, 2011subject to the terms of the Last Chance Agreement.

7On or about June 1, 2011, the applicant was again dismissed from her employment. According to KF, the termination was for cause in accordance with the Last Chance Agreement.

8The Union grieved the applicant’s dismissal, but it ultimately decided not to proceed to arbitration and the termination grievance was withdrawn on or about July 29, 2011.

9The applicant alleges that her termination was based on false allegations and that the reason for her termination was related to her race and her disability.

Analysis and Decision

10For the reasons that follow, I have determined that there is no reasonable prospect of success of the Application as against the Union and that it should be dismissed as against the Union.

11In my view, the essence of the applicant’s allegations as against the Union is that the Union did not do enough to adequately represent her interests in the grievance processes. This kind of conduct may or may not provide a basis for a duty of fair representation complaint against the Union under the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A. However 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. I am not satisfied that the applicant has a reasonable prospect of showing that any of the Union’s actions were based, in whole or in part, on the prohibited ground of her race and/or disability.

12The applicant has not demonstrated that there is evidence she has or could readily obtain that would show that the Union treated her differently on account of her race and/or disability.

Request to Defer

13Counsel for KG, on learning at the hearing that the termination grievance had been withdrawn, withdrew KG’s Request to Defer the Application to the termination grievance.

Mediation

14The applicant and KG have agreed to mediation. The Registrar will schedule the mediation in due course.

Disposition

15In the result, the Application as against the Union is dismissed and it shall be removed from the style of cause.

If the Union is seeking intervener status it shall submit a Request to Intervene to the Tribunal pursuant to Rule 11 of the Tribunal’s Rules of Procedure.