HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Deolinda Marques
Applicant
-and-
Service Employees International Union Local 2, Brewery, General & Professional Workers’ Union and United Food and Commercial Workers Union Canada, Local 175
Respondents
DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Marques v. Service Employees International Union
APPEARANCES BY
Deolinda Marques, Applicant ) Self-represented
Service Employees International Union Local 2, Brewery, General & Professional Workers’ Union, Respondent ) Bruce Price, Counsel
United Food and Commercial Workers Union Canada, Local 175, Respondent ) Marcia Barry and Erin Wallace, Counsel
INTRODUCTION
1The purpose of this Decision is to decide whether the Application should be dismissed against the Service Employees International Union Local 2, Brewery, General & Professional Workers’ Union (the “respondent SEIU”) on the basis that it not filed with the Tribunal within the one-year statutory deadline, and against the respondent SEIU and the United Food and Commercial Workers Union Canada, Local 175 (the “respondent UFCW”) on the basis that there is no reasonable prospect that it will succeed.
BACKGROUND
2The applicant identifies as a White woman of Portuguese descent. In 2005, Hurley Corporation (the “employer”), which is a cleaning company, hired her to work as a cleaner. Her work location was the building of a college campus. The campus had several buildings.
3Effective June 2, 2007, the applicant was covered under a collective agreement between the employer and the respondent SEIU. On November 13, 2007, the respondent SEIU filed a grievance on the applicant’s behalf, which alleged that the employer had failed to pay her the correct amount for a heavy duty cleaner since June 2007. On November 16, 2007, the grievance was resolved when the employer informed the respondent SEIU that it would pay the applicant the correct amount for a heavy duty cleaner retroactive to June 2007.
4In the fall of 2007, the employer, the respondent SEIU and the respondent UFCW reached an agreement whereby cleaners at three buildings of the college, including the building where the applicant worked, would be covered under a collective agreement between the employer and the respondent UFCW. The agreement took effect immediately, and, effective March 1, 2008, was incorporated into the recognition clause of the new collective agreement between the employer and the respondent UFCW.
5On November 23, 2007, the employer notified the applicant in writing that effective December 10, 2007, she would be covered under a collective agreement between the employer and the respondent UFCW. On November 24, 2007, the applicant sent a letter in response to her employer and the respondent SEIU on behalf of herself and another cleaner, which objected to the transfer and stated that she and her co-worker were being treated differently than a part-time cleaner at the building, who was allowed to remain a member of the respondent SEIU.
6On November 28, 2007, the applicant injured her back. She went off work and then requested modified work duties. On December 6, 2007, the employer notified the applicant in writing that it would be able to provide her with modified work at another building of the college. The cleaners at that building were also covered by the collective agreement between the employer and the respondent UFCW. The applicant began working on modified duties at the new location on December 19, 2007.
7After returning to work, the applicant was occasionally absent from the beginning or end of her shifts because of attendance at physiotherapy appointments. On March 8, 2008, the applicant’s manager issued her a warning record, which stated that she was absent for parts of her shifts without providing a letter from her physiotherapist. The applicant wrote comments on the record, which stated that she disagreed with the warning, and that it was the product of ongoing harassment and discrimination against her.
8On March 20, 2008, the applicant and her UFCW representative met with the employer’s Labour Relations Coordinator. The applicant presented a letter which made a number of allegations, including the following:
After the applicant was injured, the employer refused to allow her to return to her pre-injury work location, and gave her shift to another cleaner at that location.
The employer discriminated against the applicant because it allowed other employees who were injured or on sick leave to return to their pre-injury shifts.
The applicant’s supervisor scolded her in front of her co-workers, did not allow her to talk to her co-workers, and told her to re-dust an area.
The warning record that the applicant’s manager issued to her was the product of ongoing harassment and discrimination against her.
The applicant asked her co-worker to put up a caution sign while mopping, and, in response, her co-worker directed a racial remark at her. She reported the remark to her manager and supervisor, who told her that she should not have told her co-worker to put up a sign.
Whenever the applicant discussed work-related issues with her manager, he displayed an “improper bodily manner that is disturbing and uncomfortable.”
9During the meeting, the employer’s Labour Relations Coordinator directed the applicant to report to work at another building of the college. Later in the day, the Labour Relations Coordinator sent the applicant a letter, which stated that the concerns that she raised about the work environment would be looked into. The new work location was covered by a collective agreement with another union, but the applicant’s UFCW representative sent her a letter dated March 25, 2008, which stated that the respondent UFCW would continue to represent her with respect to her work-related issues.
10The applicant sent her UFCW representative a response letter dated March 31, 2008, which alleged that he had failed to inform her of the purpose of the March 20, 2008 meeting, failed to bring relevant documents to the meeting, refused to address her concerns with the employer, and failed to object to her transfer to another building. The letter concluded by stating that she was willing to give the respondent UFCW a “second chance”, and expected that the respondent UFCW would represent her in an honest and non-discriminatory manner.
11On April 17, 2008, the employer’s Labour Relations Coordinator sent the applicant a letter, which stated that she had been transferred to another building because the employer could no longer accommodate her with modified duties at her current work location. The letter also addressed several of the issues that the applicant raised in her letter at the March 20, 2008 meeting, and provided the following responses:
The applicant’s transfer from one building to another in December 2007 was related to the letter that she received on November 23, 2007 about changes to the operations structure of the two buildings.
It was not correct that the employer allowed other employees who were injured or on sick leave to return to their pre-injury shifts.
The way that the applicant’s supervisor treated her was not inappropriate because the supervisor’s job was to ensure that the applicant completed her work in an acceptable manner.
The warning record that the applicant’s manager issued to her was just and warranted based on her work performance and conduct.
The applicant’s manager admitted that he inadvertently displayed the gesture that she complained about. Other employees also disclosed that the manager displayed the same gesture towards them. The manager’s conduct was inappropriate and he was given a warning about it. The applicant’s manager apologized to her for his conduct.
The letter did not address the applicant’s allegation that a co-worker directed a racial remark at her.
12On April 29, 2008, the applicant’s manager handed her a warning record, which stated that she did not come to work on three days and did not notify him that she was not coming. The applicant and her manager had an argument, and the applicant left the workplace. The applicant wrote comments on the record, which disagreed with the warning, and stated that she had, in fact, notified the manager that she was not coming to work on the days in question because she was not feeling well.
13On April 30, 2008, the applicant sent a letter to her UFCW representative which alleged that her manager harassed and discriminated against her when he issued her the warning record. She also alleged that her manager displayed “vulgar behaviour” towards her when he handed her the warning record, and told her that she was not allowed back in the workplace. The letter asked what her options were, and whether her manager’s conduct required her to file a grievance and a human rights application. The respondent UFCW did not file a grievance on the applicant’s behalf.
14On May 1, 2008, the applicant and her UFCW representative met with the employer’s Vice President (“V.P.”) of Industrial Relations. On May 2, 2008, the V.P. of Industrial Relations sent the applicant a letter, which stated that he believed that the relationship between the applicant and her manager was irreparable. The letter offered her the option of working at another building where she would report to a new supervisor and manager, and continue to be accommodated with modified duties. The applicant subsequently began working at the new work location. The new location was covered by a collective agreement with another union.
15Between mid-June and early July 2008, the applicant’s UFCW representative sent her a union membership application and a union member information card for dental benefits. She filled in both documents, signed them, and sent them back to the respondent UFCW.
16On July 9, 2008, the employer’s V.P. of Industrial Relations attended the applicant’s place of work to have a discussion with her about complaints that he had received about her work performance. The applicant refused to meet with him without a union representative, and left the workplace. On July 11, 2008, the employer suspended the applicant without pay. A meeting between the applicant, her UFCW representative and the employer’s V.P. of Industrial Relations was scheduled for July 16, 2008.
17The applicant’s UFCW representative arranged to meet with her at a coffee shop before the meeting. The applicant arrived at the meeting with a hidden audio recording device, and recorded their 30-minute discussion. The UFCW representative was not aware that the discussion was being recorded.
18During the discussion, the UFCW representative told the applicant that he had determined that she was longer a member of the union. He stated that she was covered by a collective agreement with another union at her new work location, and should ask that union to file a grievance on her behalf. However, he also stated hat he would attend the upcoming meeting with the employer as a courtesy. He further stated he had tried extensively to help her, but she responded by portraying him as a monster, and that she seemed to have problems in every location that she worked in.
19The applicant told the UFCW representative that he consistently failed to file grievances on her behalf, including when her manager exhibited vulgar behaviour towards her. She also told him that the employer and the respondent UFCW were discriminating against her because she is White and Portuguese. She further stated that she would be going to the Labour Board.
20After their discussion ended, the applicant’s UFCW representative went to the meeting with the employer’s V.P. of Industrial Relations, but the applicant failed to attend. As a result, the V.P. of Industrial Relations sent the applicant a letter dated July 18, 2008, which warned her that if she did not make arrangements for a further meeting by July 25, 2008, her employment would be terminated. In response, the applicant sent the V.P. of Industrial Relations a letter on the same day, which requested a sick leave.
21On July 23, 2008, the applicant’s UFCW representative filed a grievance on her behalf with the employer, which alleged that her suspension was unjust. On July 24, 2008, a UFCW Director spoke with the applicant and notified her that a further meeting had been arranged with the employer for July 25, 2008. On the same day, the applicant sent the UFCW Director a letter, which alleged that he had refused to file “discrimination” grievances on her behalf. On July 25, 2008, the applicant’s UFCW representative, the UFCW Director and the employer’s V.P. of Industrial Relations attended the meeting, but the applicant did not.
22On July 29, 2008, the employer’s V.P. of Industrial Relations sent the applicant a letter, which deemed her to have abandoned her employment. On August 11, 2008, the applicant’s UFCW representative filed a grievance on her behalf with the employer in relation to the termination of her employment. On the same day, the applicant sent a letter to the employer’s V.P. of Industrial Relations, which acknowledged that the “termination” grievance had been filed, but stated that the respondent UFCW refused to file “discrimination” grievances on her behalf.
23On September 4, 2008, the applicant’s UFCW representative sent her a letter which notified her that a grievance meeting was scheduled for September 18, 2008. Again, the applicant’s UFCW representative, a UFCW Director and the employer’s V.P. of Industrial Relations attended the meeting, but the applicant did not. As a result, the employer denied both her grievances.
24On April 27, 2009, the applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that her employer, the V.P. of Industrial Relations, her manager, her supervisor, the respondent SEIU and the respondent UFCW discriminated against her because of her race, ancestry, place of origin, disability and sex, and subjected her to sexual harassment and reprisal with respect to employment.
25The Tribunal subsequently disposed of the applicant’s Application against the employer and the individual respondents after those parties entered into Minutes of Settlement and filed a Form 25 (Settlement) with the Tribunal.
26In the narrative of the Application, the applicant alleged that the respondent SEIU transferred her union membership from the respondent SEIU to the respondent UFCW in December 2007.
27The applicant also alleged that her UFCW representative agreed with her employer at the March 20, 2008 meeting, and refused to file discrimination and suspension grievances on her behalf around the time of the May 1, 2008 meeting with her employer. She further alleged that on July 16, 2008, her UFCW representative told her that she was no longer a member of the union, refused to file discrimination and suspension grievances on her behalf, refused to provide the collective agreement to her, and refused to attend the scheduled meeting with her employer.
28In Part 2 of Form 1-A of her Application, which asks for an explanation as how the allegations relate to the identified Code grounds, the applicant did not link the alleged misconduct of the respondents SEIU and UFCW to any Code grounds. The only links that she identified between alleged misconduct and Code grounds were in relation to her employer.
29On June 4, 2009, the respondent UFCW filed a Response, which denied the allegations. Specifically, the respondent UFCW denied that the applicant’s UFCW representative agreed with the employer at the March 20, 2008 meeting. The respondent UFCW admitted that in late April or early May 2008 the applicant told her UFCW representative that her manager had harassed her. However, the respondent UFCW stated that the applicant then failed to provide details about the harassment despite being asked to do so by her UFCW representative.
30The respondent UFCW also denied that on July 16, 2008 the applicant’s UFCW representative told her that she was no longer a member of the union and refused to attend the meeting with her employer. The respondent UFCW stated that, in fact, the applicant’s representative filed grievances on her behalf related to her employer’s decision to suspend and fire her.
31The respondent UFCW requested that the Tribunal dismiss the Application on a preliminary basis because it failed to disclose a prima facie breach of the Code.
32On June 8, 2009, the respondent SEIU filed a Response, which also denied the allegations. Specifically, the respondent SEIU denied that it refused to allow the applicant to remain as a member of the union because of a Code ground. On March 21, 2011, the respondent SEIU also filed a Request for an Order During Proceedings, which requested that the Tribunal dismiss the Application on a preliminary basis because it failed to disclose a prima facie breach of the Code.
33The Tribunal initially scheduled a hearing of the merits of the Application for August 10-12, 2011, but the hearing was adjourned on the first hearing day because some of the parties did not receive notice of the hearing. The Tribunal rescheduled the hearing for January 9-11, 2012. In the interim period between the two hearing dates, the applicant settled her Application against the employer and the individual respondents.
34Prior to the hearing, the respondents SEIU and UFCW fully complied with Rules 16 and 17 of the Tribunal’s Rules with respect to disclosure of documents and witnesses. The applicant complied with Rule 16 with respect to disclosure of documents, but did not file a witness list in accordance with Rule 17. Accordingly, on August 19, 2011, the Tribunal issued an Interim Decision, 2011 HRTO 1566, which provided the following directions to the applicant in paras. 14, 16 and 17:
(…) the applicant does not plan to call any witnesses at the hearing. In view of the fact that she is an unrepresented layperson, and at least two of the other parties are represented by legal counsel, it is my duty as the adjudicator to ensure that she has a fair opportunity to present her case. See Audmax Inc. v. Ontario Human Rights Tribunal, 2011 ONSC 315, at paras. 38-39. In this regard, I would point out to the applicant that she may want to consider calling witnesses to support her allegations.
(…)
A witness may appear voluntarily at the request of a party or be summoned by a party. I draw the parties’ attention to Rule 3, which provides:
3.1 On the request of a party, the Tribunal will provide a summons to witness in blank form and the party may complete the summons and insert the name of the witness.
3.2 Delivery of a summons to a witness is the responsibility of the party who obtained the summons.
In the circumstances, I will exercise my authority pursuant to Rule 5.2 of the Tribunal’s Rules to vary the application of the Rules, and allow the applicant, if she so chooses, to deliver to the other parties and file with the Tribunal a witness list, and a brief statement summarizing the expected evidence of each witness, within two weeks of the date of this Interim Decision.
35On September 2, 2011, the applicant sent the Tribunal a letter in response, which stated that she would only be calling herself as a witness at the hearing.
36At the outset of the hearing on January 9, 2012, I asked the parties to provide oral submissions on whether the Application should be dismissed against the respondent SEIU on the basis that it was not filed with the Tribunal within the one-year statutory deadline, and against both respondents on the basis that there is no reasonable prospect that it will succeed.
37I then heard submissions from all the parties. In her submissions, the applicant alleged that the respondents SEIU and UFCW discriminated against her. She did not allege that they subjected her to sexual harassment or reprisal. After hearing the parties’ submissions, I dismissed the Application with written reasons to follow. The following are my written reasons.
ANALYSIS
Should the Application against the respondent SEIU be dismissed on the basis that it was not filed with the Tribunal within the one-year statutory deadline?
One-Year Statutory Deadline
38The statutory deadline for filing an Application with the Tribunal and the circumstances under which a late Application will be accepted are set out in subsections 34(1) and (2) of the Code:
- (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
Last Alleged Incident of Discrimination
39The first matter to determine is when the last alleged incident of discrimination involving the respondent SEIU occurred, and whether the applicant filed her Application with the Tribunal within one year of the last alleged incident. There is no dispute that the applicant filed her Application on April 27, 2009.
40In its submissions, the respondent SEIU stated that the last alleged incident of discrimination could not have occurred any later than December 10, 2007, because, effective that date, she was covered under the collective agreement between the employer and the respondent UFCW, and was no longer a member of the respondent SEIU. The respondent SEIU stated that the Application is therefore outside the one-year statutory deadline.
41In her submissions, the applicant stated the last alleged incident of discrimination occurred in July 2008, when her employer suspended and then fired her. She stated she believed that the respondent SEIU was the bargaining agent at that time, notwithstanding the fact that it had illegally transferred her union membership to the respondent UFCW in December 2007. She stated that her Application is therefore within the one-year statutory deadline.
42In my view, the last alleged incident of discrimination occurred, at latest, on December 10, 2007 when the applicant’s union membership was transferred from the respondent SEIU to the respondent UFCW. If the applicant is suggesting that her ongoing lack of membership in the respondent SEIU constituted an additional act of discrimination, I disagree. This Tribunal has held that the continuing effect of an act of alleged discrimination does not in itself constitute a further act of alleged discrimination. See Mafinezam v. University of Toronto, 2010 HRTO 1495, at para. 13.
43Accordingly, I find that the Application against the respondent SEIU was filed more than four months outside the one-year statutory deadline.
Good Faith
44In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal explained at paras. 24-25 what an applicant must show to satisfy the Tribunal that a delay was incurred in good faith:
In my view, where an applicant seeks to establish that a delay in filing an application was “incurred” in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.
In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2).
45In Lafleur v. Kimberley Scott, 2009 HRTO 1141, the Tribunal also stated at para. 8:
To establish that delay in pursuing one’s rights has been incurred in good faith, it must be shown that the applicant acted honestly and with no ulterior motive. (Hart v. Hart (1990), 1990 CanLII 12268 (ON HCJ), 27 R.F.L. (3D) 419 (Ont. U.F.C.), cited in Scherer v Scherer, 2002 CanLII 44920 (ON C.A.), (2002) 59 OR (3d) 393 (O.C.A.). Delay has been found not to have been incurred in good faith where it was due to wilful blindness to the need to make inquiries about one’s rights: Webster v Webster Estate, 2006 CanLII 22941 (ON SC), [2006] OJ No. 2749 (ON S.C.). The courts have held that “failure to act in ignorance of one’s rights may, in some circumstances, amount to “good faith”. However, … it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights.” (Busch v Amos, 1994 CanLII 7454 (ON CTGD), [1994] OJ No. 2975 (Ct. J. (Gen. Div.), cited in Scherer, supra).
46In her submissions, the applicant stated that she did not file her Application against the respondent SEIU until April 27, 2009, because she believed that she would eventually be transferred back to her original work location and regain her membership in the respondent SEIU. She stated that she only realized later that she had been completely excluded from membership in the respondent SEIU.
47I am not satisfied that the applicant’s delay in filing her Application against the respondent SEIU was incurred in good faith. Her explanation was vague and falls far short of demonstrating that she acted with due diligence. Specifically, she failed to provide any details or point to any evidence that would support her belief that she would eventually regain her membership, and I cannot see how she could have held such a belief after her employment ended in late July 2008. At that point, she still had more than four months to file her Application against the respondent SEIU in a timely manner, but failed to do so.
48In view of my finding that the applicant’s delay in filing her Application was not incurred in good faith, it is not necessary to consider whether substantial prejudice will result to any person affected by the delay. It is also not necessary to consider whether the Application should be dismissed against the respondent SEIU on the basis that there is no reasonable prospect that it will succeed.
Should the Application against the respondent UFCW be dismissed on the basis that there is no reasonable prospect that it will succeed?
49Rule 19A of the Tribunal’s Rules provides for a summary hearing, following which an application may be dismissed, in whole or in part, if the Tribunal finds that there is no reasonable prospect that the application or part of the application will succeed. The approach to deciding whether an application has a reasonable prospect of success following a summary hearing was explained as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-10:
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.
In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.
50The 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. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17.
51Typically, summary hearings are held at a relatively early stage in the Tribunal’s process and do not involve calling witnesses. Summary hearings typically involve receiving the applicant’s submissions on his or her legal theory and what evidence he or she anticipates calling at the merits hearing in support of the allegations. However, the principle that an application should be dismissed because it has no reasonable prospect of success is not limited to the initial early stage of the Tribunal’s process, and can be heard as a preliminary issue at the outset of a hearing of the merits of the Application, as in the case at hand. See Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777, at para. 18.
52In her Application, the applicant’s general allegation against the respondent UFCW is that it failed to represent her properly. Her specific allegations are that her UFCW representative agreed with her employer, refused to file discrimination and suspension grievances on her behalf, told her that she was no longer a member of the union, refused to provide the collective agreement to her, and refused to attend a scheduled meeting with her employer.
53At the hearing, the applicant clarified the first specific allegation above. She stated that her UFCW representative agreed with her employer’s decision to transfer her to another work location. She also emphasized that her main complaint is that the respondent UFCW refused to file a discrimination grievance on her behalf.
54The Tribunal has received several Applications in the past alleging that a union or an employee association’s refusal to file a discrimination grievance on behalf of a member was discriminatory, and has consistently held that the refusal cannot be discriminatory unless it is linked to a Code ground. See for example, Traversy v. Mississauga Professional Firefighters’ Association, 2009 HRTO 996, at para. 33.
55In its submissions, the respondent UFCW stated that the Application against it has no reasonable prospect of success because there is no nexus between the applicant’s allegations and any Code grounds. The respondent UFCW stated that if the applicant believed that the union had engaged in unfair labour practices, the appropriate body to complain to was the Ontario Labour Relations Board, not this Tribunal.
56The respondent UFCW also stated that it had no obligation to represent the applicant after late March 2008, when her employer transferred her to a new work location that was covered by a collective agreement with a different union, but decided to do because the applicant had ongoing work-related issues. The respondent UFCW stated that its decision to continue assisting the applicant was highly unusual, and that this additional assistance was not provided to other union members.
57The respondent UFCW further stated that the applicant failed to provide particulars of her allegations of discrimination against the employer upon request, and that it therefore had a right not to pursue a discrimination grievance that had no reasonable prospect of success. In any case, the respondent UFCW stated, the applicant failed to link the union’s inaction on this matter to a Code ground.
58In her submissions, the applicant stated that her Application against the respondent UFCW has a reasonable prospect of success because there is evidence that her UFCW representative, who is a Black man, treated her differently because she is White, Portuguese and female. Specifically, the applicant stated that her UFCW representative treated Black/Jamaican members of the union better than her, and that two male Afghani members of the union who were off work because of injuries were allowed to return to their original work location, but she was not.
59When I asked the applicant for details of the evidence she had to prove her allegations of discrimination, she stated that when the UFCW representative first met the union members, he was nice to all the Black/Jamaican members, but not to her. When I asked the applicant if she had any evidence that her UFCW representative filed discrimination grievances on behalf of Black/Jamaican members of the union, she stated that Black/Jamaican members of the union did not need to file grievances. She explained they were treated well because it was known that they would cry racism if they were not.
60When I asked the applicant if her UFCW representative said anything that was directly or indirectly related to her race, place of origin or sex in the audio recording that she covertly made, she admitted that he did not. She merely reiterated her belief that his statement that she was no longer member of the union was discriminatory.
61In my view, the applicant’s allegations of discrimination have no reasonable prospect of success because there is no reasonable prospect that evidence that she has or that is reasonably available to her can show a link between the respondent UFCW’s alleged conduct and the prohibited Code grounds.
62The Application itself does not disclose any nexus between the respondent UFCW’s alleged conduct and any of the prohibited Code grounds. In her submissions, the applicant alleged that her UFCW representative discriminated against her because she is White, Portuguese and a woman, but the only evidence that she was able to point to that would support her allegations was her oral evidence about various matters that, in my view, would have little or no probative value at a hearing on the merits of the Application.
63Specifically, the applicant’s oral evidence that the UFCW representative was nicer to Black/Jamaican members than her at a meeting is tangential to her allegations, and would have small probative value, at best, in proving her allegations. Her oral evidence about why Black/Jamaican union members did not file grievances was, in my view, based on sweeping generalizations and, arguably, stereotypes about Black/Jamaican employees playing the race card, and would have no probative value. Her oral evidence that two male Afghani employees were allowed to return to their original work location after disability-related leaves would also have little or no probative value because the applicant was unable to point to any other evidence that she has or that is reasonably available to her that indicates that the respondent UFCW played a role in returning them to their original work location.
64I would add that the applicant also failed to point to any witness evidence or documentary evidence that she has or that is reasonably available to her that would assist her in establishing a link between the respondent UFCW’s alleged conduct and any Code grounds. Furthermore, she covertly recorded a lengthy conversation between her and the UFCW representative without his knowledge, but there is nothing in the recording which indicates his conduct towards her, even if it was unfair, was related to any Code grounds.
65Accordingly, there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that her Code rights were violated.
ORDER
66The Application is dismissed.
Dated at Toronto, this 23rd day of January, 2012.
“Signed by”
Ken Bhattacharjee
Vice-chair