HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Parmanand Kubarie
Applicant
-and-
Labourers’ International Union of North America, Local 506
Respondent
AND BETWEEN:
Parmanand Kubarie
Applicant
-and-
GES Expositions Canada
Respondent
Decision
Adjudicator: Alan G. Smith
Indexed as: Kubarie v. Labourers’ International Union of North America
APPEARANCES/WRITTEN SUBMISSIONS
Parmanand Kubarie, Applicant ) Self-represented )
Labourers’ International Union ) Glen Chochla, Counsel of North America, Local 506, ) Respondent )
GES Expositions Canada, ) Derek L. Rogers, Counsel Respondent )
BACKGROUND
1The applicant filed two Applications with the Tribunal alleging discrimination in membership in a vocational association and in employment on the basis of race and colour, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”).
2The applicant alleges that the respondent Labourers International Union of North America, (LIUNA) refused to re-assign him to employment with the respondent GES Expositions Canada (GES) because of his race and colour and as a reprisal contrary to section 8 of the Code. He alleges that GES discriminated against him by imposing a set of work rules as a condition of re-employment.
3Pursuant to s. 43(2) of the Code and Rule 19A of the Tribunal’s Rules of Procedure, a summary hearing by teleconference was held before me on January 30, 2012. The purpose of the summary hearing was to determine whether the Applications should be dismissed, in whole or in part, on the basis that there was no reasonable prospect that they would succeed.
4The applicant participated in the summary hearing on his own behalf. The respondents also participated and made oral submissions. The Application and the respondents’ written submissions were also considered by me.
APPLICATION AGAINST LIUNA WITHDRAWN
5At the beginning of the hearing the applicant advised that he wished to withdraw his Application against LIUNA (File 2009-01876-I). There was no objection from LIUNA.
6Therefore I granted the request to withdraw against LIUNA and the hearing continued only with regard to the application against GES (File 2009-02699-I).
FACTS
7The material facts are not in dispute. The applicant self-identifies as East Indian born in Guyana.
8The applicant is a member of the LIUNA. Pursuant to the collective agreement between LIUNA and GES, union members are dispatched to work sites based on seniority.
9The applicant was employed by GES during 2008.
10On November 19, 2008, the applicant and LIUNA were notified by GES that the applicant was placed on an indefinite suspension because of an incident of harassment on the part of the applicant the previous day. Specifically, the GES alleged that the applicant had left numerous voicemails on its labour dispatch telephone line which were threatening in nature and contained racial epithets directed at GES employees.
11On January 19, 2009, GES suspended the applicant for the period November 19, 2008, to September 21, 2009. GES also advised that before the applicant would be allowed to return to work he would be required to acknowledge and sign the “GES Canada Show Site Work Rules” (the “work rules”).
12During the hearing the applicant confirmed that he had refused to acknowledge and sign the rules, and was never re-employed by GES.
13A copy of the GES’s work rules dated February 15, 2008, was before me. The work rules read in part:
The following list contains general rules of conduct which employees and subcontractors employed by GES CANADA, are expected to follow…
14The rules then contain a number of sub-headings with a total of 14 rules:
(A) Safety and Performance Rules…
(B) Unauthorized Absences…
(C) General Misconduct…
(D) Site Specific Rules…
15At the bottom of the work rules document the following notation appears, “ - Distribution, March 5 payroll cheques”. I take this to mean that the work rules were distributed to all GES employees on March 5, 2008.
ANALYSIS
16As noted above the hearing was convened pursuant to Rule 19A of the Tribunal’s Rules of Procedure. This Rule reads, in part, 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.
17The issue that Rule 19A directs the Tribunal to determine is whether the Application has no reasonable prospect of success. In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal provided the following guidance at para 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.
18In determining whether an application has no reasonable prospect of success, an application must at least contain sufficient facts that, if accepted as true, could reasonably lead to a finding of discrimination. Otherwise, an application has no reasonable prospect of success at a hearing and will be dismissed. See the recent decisions in Macyshyn v. Toronto Catholic District School Board, 2011 HRTO 1068 and Dobric v. Brookfield Residential Services, 2012 HRTO 171.
19The applicant’s allegation is that, by reason of his race and colour he was treated in a discriminatory manner by GES. Specifically, the applicant’s assertion is that GES’s work rules only seem to apply to him as a person of colour because, in his words, “conditions to go back to work were not imposed on white employees”. When I asked if the applicant was advancing any other allegations he answered, “nothing else”.
20In neither his Application nor through his oral submissions during the summary hearing was the applicant able to point to any evidence that he had, or that was reasonably available to him, that the work rules were only applied to him and not to all employees being assigned work at GES.
21Given the lack of any evidence of differential treatment on the part of the employer, in my view there is no reasonable prospect that the applicant can prove discrimination contrary to the Code. The Tribunal has before it only a bald allegation of discrimination with nothing to suggest that GES acted in a differential manner towards the applicant and violated the Code.
ORDER
22The Application against LIUNA is withdrawn. The Application against GES is dismissed.
Dated at Toronto, this 17th day of February, 2012.
“signed by”
Alan G. Smith
Member