HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Miguel Martin Avila
Applicant
- and-
CUPE Local 1600, Fred Hahn, Russell Armstrong and Grant Ackerman
Respondents
decision
Adjudicator: Ian R. Mackenzie
Indexed as: Avila v. CUPE Local 1600
APPEARANCES and wRITTEN SUBMISSIONS
Miguel Martin Avila, Applicant ) Manuel Castro, Representative
CUPE Local 1600, Fred Hahn, )
Russell Armstrong, Grant Armstrong, ) Ryan Goldvine, Representative
Respondents )
1Miguel Avila filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in employment on the basis of disability, against his former union and officers of that union. Since the allegations were against his union and its actions, those allegations would normally fall within the Code area of vocational association rather than employment. The respondents responded to the Application as if it had been filed under the vocational association area. In any event, this discrepancy is not material to the conclusions I reach in this Decision.
2A summary hearing to determine whether there is a reasonable prospect of success of the Application was ordered in a Case Assessment Direction (“CAD”) issued on April 13, 2011. The CAD explained the basis for the summary hearing as follows (at paras. 3-4):
The Tribunal does not have the general power to deal with allegations of unfairness, alleged violations of the collective agreement, violations of the duty of fair representation under the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A or whether the employer or union acted improperly. It can only deal with alleged discrimination or harassment on the grounds set out in the … Code. In order to establish discrimination on the merits, an applicant must prove, on a balance of probabilities, a link between what is claimed to be a disadvantage and the grounds relied upon. If the applicant is unable to establish some reasonable basis to believe that such a link could be made at a hearing, the application must be dismissed as having no reasonable prospect of success.
In the context of applications against unions, the Tribunal has held that the mere failure to file or pursue a grievance is not a violation of the Code. Rather, the applicant must prove, on a balance of probabilities, that a prohibited ground was a factor in the union’s action or non-action: see, for example, Traversy v. Mississauga Professional Firefighers’ Association, 2009 HRTO 996 at paras. 32-33; Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 at paras. 16-17.
Background
3The applicant commenced employment with the Toronto Zoo in 2006. He applied to the employer’s insurer for long term disability benefits (“LTD”) in January of 2008. The LTD is a term of the collective agreement between the Toronto Zoo and CUPE, Local 1600. His claim was denied in April of 2008. The applicant did not appeal this decision. The respondents state that they were not aware of the denial of the claim until 2010.
4The applicant’s employment was terminated on March 9, 2009. A last chance agreement was reached at arbitration, reinstating the applicant to employment, effective May 1, 2009. The agreement was signed by the employer, the union, and the applicant. The last chance agreement included a provision that the settlement resolved all liability of the employer under the Code, up to the date of the signing of the agreement.
5The applicant’s employment was terminated on May 28, 2009 because of alleged breaches of the last chance agreement.
6The applicant filed an Application under the Code against the Toronto Zoo in March of 2009. The application was dismissed on September 30, 2010 (2010 HRTO 1989) and a Reconsideration Request was refused on June 9, 2011 (2011 HRTO 1127). The Tribunal concluded that the last chance agreement resolved his human rights issues and it would be an abuse of process to permit the applicant to continue with the Application (at para. 33).
7In the Request for Reconsideration, the applicant provided a medical note from his treating physician dated October 1, 2010 (after the release of the Decision on the Application). The Tribunal reviewed the medical note and concluded as follows (at paras. 17-22):
I note that at the in person hearing held in July 2010, counsel for the applicant stated that the applicant did not take the position that he should not be bound by the Minutes of Settlement as a result of duress or capacity issues related to his disability; this position is clearly at odds with the arguments now being advanced.
The two-page medical report attached to the submissions filed in February 2011 is from the applicant’s treating physician. Although the report refers to a number of attachments, none were included. The report indicates that the applicant has been unable to work since 2007 and refers to an application for long term disability benefits made in early 2008. The applicant’s physician’s view is that the applicant “does not have insight or a realistic assessment of his overall mental health state”. He indicates that he “advised (the applicant) at the time and ongoing since then” of that medical opinion.
Although counsel for the applicant indicates that the “clinical notes are instructive regarding Mr. Avila’s state of mind at all material times”, there is no specific reference to the period during which the Minutes of Settlement were entered into by the applicant (May 1, 2009).
Counsel for the applicant argues that the medical report supports the view that “Mr. Avila was obsessed to the point where he has an underlying psychiatric illness marked by lack of insight and comprehension”. However, a review of the two-page report shows that although the applicant’s doctor speaks about a “marked lack of insight” and indicates that the applicant’s perception of his own psychiatric conditions is faulty, he does not suggest difficulties in comprehension or indicate the applicant lacked the capacity in May 2009 to understand the contents and implications of the Minutes of Settlement signed by him.
Finally, and most importantly, there is no explanation as to why this evidence could not have been reasonably obtained earlier than October 2010, since the doctor’s views were known, having been communicated to the applicant and third party benefit providers from 2008 onwards..
While this particular two-page report may have been authored on October 1, 2010, I am not persuaded that the evidence contained in it was not reasonably available from March 2009, when the Application was filed, to July 2010, when the hearing was held. As the Practice Direction indicates, reconsideration is not an opportunity for a party to repair deficiencies in the presentation of its case.
8The applicant also filed an application with the Ontario Labour Relations Board under section 74 of the Ontario Labour Relations Act, S.O. 1995, Sched. A, alleging a violation of the union’s duty of fair representation. In a decision issued on May 7, 2010 (2010 CanLII 24991) the OLRB dismissed the part of the application relating to the allegation that the last chance agreement was null and void. The remainder of the complaint was dismissed on June 16, 2010 (2010 CanLII 34123).
9On August 5, 2010, the applicant submitted a grievance to the union against the denial of LTD benefits. The union, for the reasons set out in its submissions below, refused to file the grievance with the employer.
Submissions
10The applicant submitted that the union was aware of his disability, but did not investigate the nature of that disability and did not discuss it with him. This lack of a proper investigation by the union put him at a disadvantage and resulted in him not being represented properly.
11The applicant submitted that he was not capable of entering into the last chance agreement. The union was aware of his medical condition at the time and made no effort to confirm whether he had the capacity to sign the agreement. This failure to ensure that the applicant was capable of making a sound and informed decision was discriminatory. The union is now refusing to represent the applicant on a technicality: the last chance agreement that he did not understand.
12The applicant submitted that the fact that he is currently in receipt of Ontario Disability Support Payments demonstrates that he is disabled and that the union is discriminating against him by not pursuing his grievance.
13The respondents submitted that the last chance agreement resolved all matters of liability on the part of the employer as of May 2009. The denial of the LTD claim occurred in April of 2008. The applicant only asked for a grievance to be filed against the denial of LTD in August of 2010.
14The respondents submitted that the union had not been advised of the earlier claim for LTD benefits or the denial of the claim. The union examined the insurer’s file and determined that a grievance had no chance of success because of the delay in filing the grievance, the release against any claims against the employer as of May 2009 in the last chance agreement, and the fact that the applicant was no longer employed with the Toronto Zoo. The applicant was provided with a detailed letter outlining the reasons for not pursuing a grievance.
15The respondents submitted that the validity of the last chance agreement was confirmed in the OLRB decision and in the Tribunal Decision dismissing the Application against the Toronto Zoo.
16The respondents submitted that the decision not to file a grievance was based on the above reasons and not on any prohibited ground of discrimination.
17The applicant submitted that the OLRB did not review the settlement agreement from the perspective of the applicant’s capacity to understand the agreement. In his Application, the applicant states that he was not able to provide a medical note that outlined his medical condition. He states that the allegations about the last chance agreement were not reviewed thoroughly. I note, however, that the applicant did provide medical information in support of his Request for Reconsideration of the Application against the Toronto Zoo, and that the Tribunal considered this information in making its determination.
Analysis and Decision
18For the reasons that follow, I have determined that there is no reasonable prospect of success of the Application and that it should be dismissed.
19The Tribunal has held that a decision by a union not to file a grievance is not a violation of the Code, unless a prohibited ground of discrimination was a factor in the union’s actions. See Traversy v. Mississauga Professional Firefighters’ Association, 2009 HRTO 996 at paras. 32-33 and Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 at paras. 16-17.
20I am not satisfied that the applicant has a reasonable prospect of showing his disability was a factor in the union’s decision not to pursue the grievance
21The applicant has not shown that there is evidence he has or could readily obtain that would demonstrate that his disability was a factor in the union’s decision not to pursue the grievance. He has not stated that he will provide evidence of differential treatment compared to others without a disability.
22In the circumstances, I find that this Application has no reasonable prospect of success. Accordingly, the Application is dismissed.
Dated at Toronto, this 23rd day of January, 2012.
”signed by”____________
Ian R. Mackenzie
Vice-chair