HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mary Lou Milligan
Applicant
-and-
Dresden Industrial, a Division of KSR International
Respondent
Interim Decision
Adjudicator: Geneviève Debané
Indexed as: Milligan v. Dresden Industrial
WRITTEN SUBMISSIONS BY
Mary Lou Milligan, Applicant ) Laura Lee Smith, Representative
Dresden Industrial, a Division of ) Sven Poysa, Counsel KSR International, Respondent )
Sheet Metal Workers International ) Aaron Hart, Counsel Association Local Union No. 540 )
1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleges discrimination in employment and membership in a vocational association on the basis of disability. The respondents filed separate Responses denying the allegations in the Application.
2In a Case Assessment Direction dated July 19, 2011, the Tribunal directed that a summary hearing be held and stated at paragraph 3:
Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:
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.
3A half-day summary hearing by teleconference was held on December 19, 2011, in which all parties participated. All parties filed materials with the Tribunal in advance of the summary hearing.
Background
4The applicant was employed with Dresden Industrial, a Division of KSR International, the respondent employer, from July 24, 2009, until on or about July 7, 2010. The applicant’s terms and conditions of employment were governed by a collective agreement between the respondent employer and the Sheet Metal Workers International Association Local Union No. 540, the respondent union.
5The applicant had some medical difficulties which caused her to miss work in the winter of 2009-2010. There is no dispute between the parties that the applicant had been cleared to return to work without any restrictions or accommodation prior to the cessation of her employment in June 2010.
6The respondent employer alleges that the applicant’s employment terminated when she left work without permission on July 7, 2010, and failed to report to work for two scheduled shifts on July 9 and July 12, 2010. The applicant’s employment was terminated for just cause and/or job abandonment.
7The applicant alleges, amongst other things, that the reason that she left work was because she suffered a reoccurrence of her injury and that she advised that she was leaving work because of the injury. There is a dispute between the parties as to whom she advised when she left and whether or not she left work because of an injury.
8The applicant alleges that the respondent union refused to file a grievance and to provide her with any representation.
9The respondent union takes the position that the refusal to file a grievance and a failure to represent the applicant during the course of the grievance proceeding are not contrary to the Code. The respondent union alleges that it did not pursue a grievance because it was unlikely to be successful.
10The applicant filed an application at the Ontario Labour Relations Board alleging that the respondent union had not fairly represented her pursuant to section 74 of the Labour Relation Act, 1995 S.O. 1995, c. 1, Sched. A. The applicant withdrew this application during the proceeding before the Board.
Respondent Employer
11Having reviewed the submissions of the parties and the pleadings it is not clear that the application as against the respondent employer has no reasonable prospect of success. There are a number of issues in dispute which may require the Tribunal to make determinations of credibility that cannot be properly assessed during a summary hearing. As such, the Application will proceed against the respondent employer.
12The Tribunal notes that the respondent employer in its Response has provided an explanation of the events in question, to which the applicant has not responded by filing a Reply. Rule 9.1 reads as follows:
An Applicant who intends to prove a version of the facts different from those set out in a Response must deliver and file a Reply in Form 3 setting out the different version, unless it is already contained in the Application. An Applicant may also reply to any other matter raised in the Response.
13Given the allegations in the Response, the Tribunal will direct the applicant to file a Reply to the Response.
Respondent Union
14The 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 in 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.
15The applicant did not provide any proposed evidence which would suggest that the respondent union failed to file a grievance or represent her due to prohibited grounds. The Application as against the respondent union is dismissed since it has no reasonable prospect of success.
Order
16The Tribunal Orders the following:
a. The Application as against the Sheet Metal Workers International Association Local Union No. 540 is dismissed and the title of proceeding is accordingly amended;
b. If the Sheet Metal Workers International Association Local Union No. 540, wishes to intervene in this Application it must file its Request to Intervene within 21 days from the date of this Interim Decision; and
c. The applicant must deliver and file a Reply to the respondent employer’s Response within 21 days of this Interim Decision.
17I am not seized.
Dated at Toronto, this 2nd day of February, 2012.
“Signed by”
Geneviève Debané
Vice-chair