Pryse v. Canadian Union of Public Employees, 2012 HRTO 2032

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Laura Pryse

Applicant

-and-

Canadian Union of Public Employees and

Canadian Union of Public Employees, Local 3083

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: October 25, 2012

Citation: 2012 HRTO 2032

Indexed as: Pryse v. Canadian Union of Public Employees

APPEARANCES

Laura Pryse, Applicant

Self-represented

Canadian Union of Public Employees (National and Local 3083), Respondents

Paul O’Ryan, Counsel

Introduction

1A summary hearing was held on September 13 and 26, 2012, to determine whether this Application should be dismissed in whole or in part, on the basis that there is no reasonable prospect that it would succeed.

2The applicant filed this Application alleging discrimination by her union in membership in a vocational union, services and contracts on the basis of disability and reprisal, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The respondents are, respectively, the national office of the Canadian Union of Public Employees (“CUPE”) and CUPE, Local 3083, which is the local to which the applicant belonged.

3The allegations in this Application largely concern the manner in which the respondents handled her grievance following the termination of her employment with Community Living Dufferin (her “former employer”). In addition to the grievance, the applicant filed Application 2009-03189-I to this Tribunal against her former employer concerning the termination of her employment.

4In 2011, the respondents made a request to consolidate the two Applications given the factual overlap between them, as well as the fact that the respondents were intervenors in Application 2009-03189-I. However, because the hearing in Application 2009-03189-I was scheduled to commence within two weeks of the conference call on this request, the request to consolidate was dismissed. Instead, I seized myself of both matters, thus allowing me, if necessary, to make determinations on this matter without re-hearing evidence called in Application 2009-03189-I.

5The hearing into the merits of Application 2009-03189-I took place in September 2011. On October 6, 2011, that Application was dismissed in Tribunal decision 2011 HRTO 1813, on the basis that the applicant had failed to establish on a balance of probabilities that her employment was terminated in reprisal for refusing to infringe the rights of another person.

6The Tribunal issued a Case Assessment Direction on May 18, 2012, directing that a summary hearing would be held under Rule 19A of the Tribunal’s Rules of Procedure with respect to this Application. The issue that Rule 19A requires me to determine is whether all or a portion of this Application has no reasonable prospect of success. If a finding is made that the Application, or a portion thereof, has no reasonable prospect of success, then it is dismissed. If the Application is not dismissed in its entirety, it (or the remaining portion of it) will continue to advance through the Tribunal’s process.

Decision and analysis

Legal Overview

7Rule 19A.1 reads as follows:

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.

8In Dabic v. Windsor Police Service, 2010 HRTO 1993, the Tribunal stated:

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.

9As pointed out in the Case Assessment Direction to the parties, the Tribunal has held that a failure on the part of a union to file or pursue a human rights grievance is not discrimination unless the reason for the union’s inaction was improperly based on one of the grounds enumerated in the Code. See Traversy v. Mississauga Firefighters Association, 2009 HRTO 996, at para. 33 and Arias v. Centre for Spanish Speaking People, 2009 HRTO 1025, at paras. 16-18.

Factual Overview

10The applicant’s allegations in the narrative of her Application can be summarized as falling into three categories. The first general category is that the respondents were aware of, but failed to properly take into account, the applicant’s fragile mental state following her termination, which led to the applicant being unable to participate in the grievance process – a process she states was “arbitrary, confusing and stressful.” The confusion was exacerbated by the failure of her collective agreement to specifically mention discrimination or reference the Code.

11The second grouping of allegations alleges the respondents failed to recognize and grieve the actual human rights issues involved with the termination of the applicant’s employment. They also failed to support her in Application 2009-03189-I against her former employer.

12The third category concerns allegations of reprisal. Specifically, the applicant alleges the respondents threatened reprisal when the applicant advised them she wished to proceed with an application to this Tribunal, and when she followed through on Application 2009-03189-I, reprised against her for doing so.

13In her Reply to the Response, the applicant additionally asserts that the respondents further discriminated against her by not taking into account how her mental health issues may have affected her performance prior to the termination of her employment. She makes further allegations about what she regarded as “bullying” and “harassment” on the part of the respondents. Finally, she alleges in the Reply that she had been treated differentially by the National Representative at CUPE, which she states was the result of the official following a discriminatory policy directive on the treatment of individuals with perceived mental health issues.

14The applicant was permitted to make both written and oral submissions to me during this summary hearing, as she felt that she would not be able to adequately make her arguments orally. In addition to expanding upon the above arguments, the applicant submitted that, because her representatives at Local 3083 worked in the mental health field, they would have been aware of her mental state (or rather, the “red flags” that pointed to her disability) and ought to have acted accordingly.

15These arguments are addressed below.

The Respondents Failed to Advance the Applicant’s Human Rights Concerns

16In her Application, the applicant expresses concern that she was told by the President of Local 3083 that it was prepared to file a grievance, but that there would be no arbitration. The applicant also expresses concern about what she regarded as the tardy manner in which her grievance was processed at the outset. It should be noted here that the applicant acknowledges that she asked the respondent to not proceed with her grievance in November 2009, and that they respected this request by holding the grievance in abeyance.

17The applicant further states that the respondents collectively refused to advance her claim of reprisal against her former employer in her grievance even though she “pleaded” with them in an email to do so. Finally, she states that when she did file an Application against her former employer with this Tribunal, in which she makes the reprisal allegation the respondents refused to make in her grievance, her union did not contact her for “guidance and support” and she assumed “they had no interest in helping” her.

18As I address in the Decision in Application 2009-03189-I (against her former employer), the applicant was a probationary employee, and a decision was made to terminate her employment before her probation was concluded because she had not accrued full rights to grieve her termination under the Collective Agreement. Thus, the respondents in this Application were limited in what they could do vis-à-vis the grievance process.

19In any event, with respect to all of the above allegations (i.e., the minimal promises made about the grievance, the perceived slowness in the process, the failure to assert reprisal or support the applicant with respect to her Application 2009-03189-I with this Tribunal), the applicant fails to make a link between a ground of discrimination under the Code and this alleged conduct on the part of the respondents. Applying the principles set out in Traversy, supra and Arias, supra, these allegations have no reasonable prospect of success and, accordingly, are dismissed.

The Respondents Were Aware of, But Did Not Respond Appropriately to, the Applicant’s Fragile Mental State

20The applicant states in her Reply that she advised the representatives at Local 3083 in her first contact with them (days after she had been fired) that she “was upset, experiencing insomnia, had crying jags and couldn’t cope.” As noted by counsel for the respondents, the applicant’s employment had just been terminated and emotional distress would be expected.

21The applicant does not allege that she advised the respondents that she was experiencing unusual symptoms, or had been diagnosed with any illness. Specifically, she does not allege that when she received the diagnosis of a “Major Depressive Disorder” in mid-November, 2009 (several months after her termination) she shared this with the respondents’ representatives (indeed she indicated she had asked them not to communicate with her by this point). Likewise, she does not allege that she shared any information with the respondents about the panic attacks and heart attack she reports experiencing in her submissions to this Tribunal.

22Indeed, in her Application, the applicant alleges that the major depressive disorder was the direct result of the union’s treatment of her in the post-termination period. Logically, then, it would not have been present at the outset of her interactions with the respondents. By the time she filed her Reply, however, the applicant suggests that her disorder may have preceded the termination of her employment by several months and may have accounted for the problems that led to her termination. I agree with counsel for the respondents’ submission that the changing nature of the applicant’s allegations in this regard make them difficult to respond to.

23The applicant submits that, as professionals working in the area of mental health, the respondent’s representatives ought to have discerned that the distress the applicant reported was something more than a normal reaction to an unpleasant and stressful life event. She has not, however, alleged any behaviour on her part that might have triggered the respondents to make independent inquiries, even though she had identified no disability herself.

24Generally, of course, the accommodation process is a shared responsibility. The applicant does not allege any facts that would suggest that she, directly or indirectly, asked for accommodation. In her Application the applicant speaks of the union’s obligation to “accommodate” her in the grievance process, but, I find that the applicant actively took steps to prevent the respondents’ representatives making any potential accommodation-related inquiries of her. While on the one hand saying that the respondents ought to have treated her differently, the applicant also states in her Reply: “I find being treated differently is annoying.”

25Specifically, the applicant states she was deeply offended when she received a communication from the CUPE National representative saying that she would try to “maintain an appropriate distance” from the applicant (after being told by the applicant to stop communicating with her). The applicant alleges that this statement was the result of the representative following a 2005 policy memo from the respondents’ Equality Branch advising CUPE representatives to “remain calm and relaxed” and to “[r]espect the individual’s personal space” when dealing with a person with a mental health issue. Regardless of the motivation for the statement, on the face of the words all the respondent was trying to do was doing was to indicate it would respect the applicant’s express request to stop communicating with her. This allegation illustrates the applicant’s inherently contradictory position which was essentially that, on the one hand the respondent should have recognized she might need some type of accommodation or differential treatment, but on the other hand should not have treated her differently.

26The only other assertion made by the applicant with respect to this subset of allegations is that the respondents ought to have explored the possibility that she was suffering from a mental disorder, which affected her performance and led to the termination of her employment. The difficulty with this argument is that as late as September 2011, the applicant was taking the position before this Tribunal in Application 2009-03189-I that there was nothing wrong with her job performance. The respondents cannot be faulted for not advancing a theory of the case that the applicant actively opposed.

27It would appear from her pleadings and submissions that the applicant believes that the respondents should have treated her more sympathetically. The Tribunal, however, does not have the power to deal with general allegations of unfairness. While in certain circumstances, sympathetic treatment may be consistent with the goals of human rights legislation, the Code does not require a respondent to meet all demands made by a person with a disability, and anticipate that person’s every need. For the applicant’s allegations in this regard to continue in the Tribunal’s process, the applicant must have some basis, beyond very general allegations of unfairness, for believing that the respondent failed in its procedural or substantive duty to accommodate some disability-related need.

28The allegations that the respondents were aware of, but did not appropriately respond to, the applicant’s fragile mental state must be dismissed as having no reasonable prospect of success. Specifically, the applicant cannot proceed with her allegations that the respondents discriminated against her when they failed to (1) treat her sympathetically; (2) suggest that she get mental health help; or (3) explore with her the possibility that her pre-termination employment performance may have adversely been impacted by her mental disorder.

The Respondents Engaged in Reprisal

29The applicant alleges that when she advised her representatives at Local 3083 that she wished to file an Application to this Tribunal, the local president yelled at her and said “the union would prevent me or frustrate my efforts, use the system against me and any other means and I would be ‘left with nothing.’” She alleges that much of the respondents’ subsequent “bullying and harassing” conduct towards her was in reprisal for her following through on Application 2009-03189-I in spite of this threat.

30While the respondents dispute the initial conversation, or that the subsequent conduct was either bullying or harassing, this is not the stage at which I can appropriately make such factual findings. I have heard no testimony on this point.

31Section 8 of the Code specifically prohibits both reprisal and the threat of reprisal for claiming rights under Part I to the Code. I cannot, therefore, find there is no reasonable prospect of success with respect to the applicant’s allegations of reprisal as found in her pleadings. The applicant may proceed with these allegations.

32However, I would note that it is difficult to discern what of the post-meeting (at which she alleges the threat of reprisal was made) conduct the applicant alleges was in reprisal for having filed Application 2009-03189-I. The applicant is directed to specifically identify which of the existing allegations in her Application and Reply concerning the respondents’ conduct she asserts were in reprisal for having instituted Application 2009-03189-I.

order

33In summary, I have made the following orders/direction:

a. The applicant’s allegations of reprisal can proceed to a hearing. All other allegations in the Application are dismissed as having no reasonable prospect of success.

b. Within four weeks of the date of this Interim Decision, the applicant is directed to deliver to the respondents and the Tribunal a document which specifically identifies the allegations in her Application and Reply concerning the respondents’ conduct which she asserts were in reprisal for having instituted Application 2009-03189-I.