Barron v. Canadian Union of Public Employees, Local 1734, 2012 HRTO 520

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rusty Barron Applicant

-and-

Canadian Union of Public Employees, Local 1734 Respondent

DECISION

Adjudicator: Maureen Doyle Date: March 14, 2012 Citation: 2012 HRTO 520 Indexed as: Barron v. Canadian Union of Public Employees

APPEARANCES

Rusty Barron, Applicant (Self-represented) C.U.P.E., Local 1734, Respondent (Ryan Goldvine, Counsel)

1This is an Application filed on May 6, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges that the respondent discriminated against him in membership in a vocational association on the basis of disability.

2Following a review of the Application, a Case Assessment Direction (“CAD”) was issued on September 14, 2011, directing that a summary hearing take place. The summary hearing was held by conference call on February 7, 2012. Subsequent to the summary hearing, the applicant was permitted to provide his reply to the respondent’s documents, including case law, which he had not received prior to the conference call. His reply was received by the Tribunal on February 21, 2012.

DECISION

3For the reasons that follow I find that this Application has no reasonable chance of success.

ANALYSIS

Summary Hearings

4In a summary hearing, the issue is whether the application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the application or a part of it will succeed. It is outlined in Rule 19A of the Tribunal’s Rules of Procedure:

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.

5In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

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.

Application to the Facts

6The applicant alleged that he suffered workplace injuries and that, upon his subsequent return to work, the union did not inspect his worksite or file grievances when he requested that it do so. He also made allegations regarding the union’s participation in meetings with the employer and the Ministry of Labour. In particular, the applicant alleged as follows:

• He suffered a workplace injury in February 2008. In his Application, he alleged that upon his return to work in March 2008, he asked the respondent union’s health and safety representative to inspect the work site, but he did not and the applicant suffered further injury. He alleged that his employer “forced him on medical leave” on November 28, 2008.
• He also alleged that he made two requests that his union file a grievance on his behalf in November 2008, but that the National Representative of the respondent union wrote to him as follows:

  The union chose not to file a grievance about the wages missed as a result of your return to work because of the questionable chances of success and while we tried to get them through persuasion we were unable. Our legal case was unlikely to be sustainable.

• He alleged that he returned to work in March 2009 the health and safety representative for the respondent union was asked to inspect his work location, but did not. Instead, the health and safety representative wrote to the applicant, indicating he thought he knew the location, directed him to speak to someone else directly about his concerns, and asked that the applicant advise him what the other individual’s response was.
• He alleged that he was subsequently re-injured, but that the chief steward of the respondent union refused to file a grievance regarding his allegations that he had been put to work in unsafe conditions.
• On May 6, 2009, he sent an email to the respondent union, advising that he had filed an Application with the Tribunal regarding “the physical, mental and reprisal treatment I have received from the past 447 days”. He alleged that the respondent union refused to participate in the Application, but that they asked for a copy of the file. He further alleged that on September 21, 2010 [sic], the National Representative sent him an e-mail advising that the respondent union would not be representing him in his HRTO application.
• The applicant alleged that he asked the respondent union to file a grievance “based on [his] disability” in September 2009.
• The applicant further alleged that the National Representative advised him in May 2010 that the termination of his employment was imminent and that the union was therefore going to wait until after his termination before arguing any grievances related to his disability. The applicant did not approve of this strategy and wrote to the union advising them of his disagreement.
• The applicant alleged that in July, 2010, the National Representative provided a letter to the employer setting out a different set of restrictions for modified work than had been set out by a Functional Assessment Evaluation in July, 2009. He alleged that the employer accepted the restrictions as described by the respondent union, but that he disagreed with them.
• He alleged that on August 28, 2010, the union was asked to attend his work location after he refused to work “based on unsafe conditions and requirements required due to my disability”. He alleged that the union health and safety representative initially refused to attend, but that the representative subsequently wrote to the applicant’s supervisor asking if the applicant was maintaining a work refusal and advising that he would attend if that were the case.
• He alleged that on September 10, 2010, the National Representative and the chief steward refused to leave a Disability Management Meeting with the employer so he could discuss “private medical matters with the employer”. He alleged that they “offered the employer the opportunity to modify prescription splints prescribed by my family physician” and that they continued to indicate different limitations than those approved in July 2009. He alleged that on September 21, 2010, the Workplace Safety and Insurance Board (WSIB) sent a letter to the employer, “countermanding Local 1734’s letter of increased medical restrictions”. He alleged that the employer immediately adopted the work limitations from the WSIB.
• The applicant also alleged that in September 2010 he contacted the Ministry of Labour to inspect his work location, as he alleged the employer was not accommodating his disability. He alleged that following the inspection, there was to have been another meeting with Ministry of Labour “medical professionals”, but that the respondent union cancelled that meeting and advised that they were acting as his representative. He alleged that the Ministry of Labour requested a further meeting with him in October 2010 but that the respondent union refused to contact him and attended the meeting on his behalf, without his permission. He alleged that they provided incorrect information and “closed the case”. He alleged that the Ministry of Labour provided a final report in October, 2010 but that the union failed to provide him with a copy and it was not until 2011 when he contacted the Ministry that he “learned of CUPE Locals 1734’s deception”. He alleged that in May 2011, the Ministry of Labour advised him of what had happened and that because the case was closed, “the details could not be corrected”.

7In its Response, the respondent submitted that a large number of the applicant’s allegations are untimely and should be dismissed on that basis, as they describe events which are alleged to have occurred more than one year prior to the filing of the Application.

8The respondent also submitted that many of the allegations are the subject of the April 2009 HRTO Application that the applicant filed against the employer, and in which the union has been granted intervenor status. The respondent submitted that, to the extent that there is overlap in the allegations made, this Application is an abuse of process and should be dismissed.

9The respondent further submitted that the applicant has not made out a prima facie case of discrimination on the basis of disability with respect to his membership in a vocational association. The respondent submitted that to the extent that any of the allegations allege breaches of the Code at all, they relate to his employment, and not to his membership in a trade union.

10The respondent also submitted that to the extent the applicant has made allegations against the union, there are allegations that the union has not represented him fairly, and the union submits that the HRTO is not the appropriate forum for such allegations. The respondent also submitted that the applicant is familiar with the appropriate forum for such complaints, having filed multiple applications against the union before the Ontario Labour Relations Board in the past.

11In the alternative, the respondent submitted that the Application does not have a reasonable prospect of success and should be dismissed.

12In response to the particular allegations, the respondent submitted as follows:

• With regard to the allegation that the union’s health and safety inspector did not inspect his worksite in March 2008, the union submits that the allegation is untimely, that it does not allege a breach of the Code and that it relates to his employment and not to his membership in a vocational association.
• With regard to the allegation that the union did not file the grievances he asked them to file in November 2008, the respondent submits that the allegation is untimely, that it does not allege a breach of the Code, and that in fact, according to the quoted email provided by the applicant, the union’s decision was based on its assessment of the grievance and not on any improper considerations. Further, the union submits that the applicant simply takes issue with the union’s decision not to file a grievance, and this kind of complaint is not properly before the HRTO. The respondent also notes that it is currently pursuing ten grievances on behalf of the applicant. The respondent submits that the allegation relates to the applicant’s employment and not to his membership in a vocational association.
• With regard to the allegation that the union’s health and safety inspector did not inspect the applicant’s worksite in March 2009, the respondent submits that the allegation is untimely. The respondent also submits that it does not allege a breach of the Code. Further, the respondent submits that the allegation relates to the applicant’s employment and not to his membership in a vocational association. Additionally, the union notes that on its face the allegation appears to be regarding issues of representation rather than discrimination and that it is not properly before the HRTO.
• With regard to the allegation that the chief steward did not file a grievance when he became re-injured after his March 2009 return to work, the respondent submits that the allegation is untimely and that it does not allege a breach of the Code. Additionally, the union submits that this is a complaint about representation, not discrimination, and as such is not properly before the HRTO.
• With regard to the allegation that the union refused to represent him in his April 2009 Application to the HRTO, the union submits that the response of the National Representative was actually dated September 2009 and that the allegation is therefore untimely. Further, the union submits that it does not have an obligation to represent its members in matters at the HRTO and that there is no breach of the Code alleged. In any event, the union submits that all of the applicant’s allegations of discrimination on the basis of disability and reprisal are to be addressed in the grievance arbitration process underway.
• With regard to the allegation that he asked the union to file a grievance regarding discrimination on the basis of disability in September, 2009, the respondent submits that the allegation is untimely, the union has filed ten grievances on behalf of the applicant, all of which are proceeding to arbitration, there is no allegation that the union has acted in a discriminatory manner.
• With regard to the alleged disagreement with the union’s strategy of dealing with all the grievances only after his termination, the union submitted that it is its strategy to consolidate grievances in these circumstances, and that, in any event, the applicant has not alleged a violation of the Code. Again, the respondent submits that if the applicant disagrees with the decisions made in the course of providing representation to him, such a complaint is not properly before the HRTO.
• With regard to the allegation that the union provided inaccurate medical restrictions to the employer in July, 2010, the respondent denies the allegation and submits that work restrictions are typically determined as a result of discussions between the employer, the union and the employee on review of all the medical information available to the parties. It submits that in any event, the allegation does not allege a breach of the Code by the union, and, in any event, relates to his employment and not to his membership in a vocational association.
• With regard to the allegation that the union’s health and safety representative initially refused to attend his work location on August 28, 2010 after the applicant alleges he invoked a “work refusal” due to “unsafe conditions and the requirements” of his disability, the union denies the allegation and submits that in any event, the applicant has not alleged any discriminatory reason for the refusal.
• With regard to the allegation that the National Representative and the chief steward refused to leave a Disability Management meeting on September 10, 2010 and that the union continued to put forward inaccurate accommodation requirements which he did not agree to, the union denies the allegation and submits that in any event as the exclusive bargaining agent for certain employees, including the applicant, it is required to be involved in any discussions with the employer which may affect the terms and conditions of employment. In any event, the respondent submits that this appears to be an allegation that the employer has not accommodated the applicant’s disability and this will be dealt with as part of the ten grievances going forward to arbitration. Further, the respondent submits that the allegation relates to the applicant’s employment and not his membership in a vocational association.
• With respect to the allegation that the WSIB sent a letter to the employer confirming the applicant’s accommodation needs as per the July 2009 FAE, the union submits that it is not clear what the applicant is alleging and that notwithstanding, it appears to relate to an allegation regarding the employer’s failure to accommodate his disability. It submits that this is another allegation which will be dealt with as part of the ten grievances proceeding to arbitration. It also submits that this allegation does not appear to relate in any way to the applicant’s membership in a vocational association.
• With regard to the applicant’s allegations about interactions with the Ministry of Labour in September and October 2010, the respondent denies the allegation and, in any event, submits that as the exclusive bargaining agent for certain employees, including the applicant, it is required to be involved in discussions with the employer affecting terms and conditions of employment and that it does not require the applicant’s permission to represent him in the workplace. Notwithstanding, the respondent submits that this does not allege a breach of the Code on the part of the union. Further, it submits that the allegation appears to relate to an allegation that the employer failed to accommodate the applicant’s disability, and will be dealt with as part of the applicant’s ten grievances which are proceeding to arbitration. Additionally, it submits that the allegation relates to the applicant’s employment, and not to his membership in a vocational association.

Summary Hearing

13At the summary hearing, the applicant submitted that his Application has a reasonable prospect of success because evidence he would call from union officials would establish discrimination. He submitted that a September 21, 2010 email from the union’s National Representative will show that the National Representative believed discrimination occurred, but refused to take the next step and file a grievance. In particular, the applicant submitted that the email indicates that, while the National Representative had tried to persuade the employer on the applicant’s behalf, he would not file a grievance. In his Application, the email attributed to the National Representative appeared to be in relation to the applicant’s request to file a grievance following events in November, 2008, when he alleged that the National Representative’s email stated:

The union chose not to file a grievance about the wages missed as a result of your return to work because of the questionable chances of success and while we tried to get them through persuasion we were unable. Our legal case was unlikely to be sustainable.

14In his Application, the applicant indicated that the chief steward deferred the question of action to be taken on his behalf to the National Representative. At the summary hearing, he alleged that when the chief steward was asked to file a grievance regarding a September 8, 2009 e-mail, she said that the union did not want to file his discrimination grievances against the employer, due to the good working relationship they had. He alleged at the Summary Hearing that the union never wanted to upset the employer and that they took this approach each time he wanted a grievance filed.

15The applicant also submitted that in a private conversation when he asked the National Representative to file a grievance, he said that any money received from his “human rights grievance” would be taken away from the membership of the union. In his Application, the applicant indicated that when he asked the union to take action, the National Representative “made many responses such as ‘that’s not what the employer says’, ‘Their’s [sic] little chance of winning that complaint’, ‘I’m going by what the employer says’, ‘We refuse to discuss this any further’, ‘We will not represent you’ ECT [sic]”.

16The applicant submitted that the Application concerns the actions of the respondent union, not of the employer, as the allegations relate to the union’s decision not to proceed with the discrimination grievances he wanted them to file.

17The applicant also submitted that he did not feel that a Duty of Unfair Representation complaint at the Ministry of Labour was the appropriate forum for these allegations and he alleged that the Ministry of Labour advised him that they do not deal with claims of discrimination. Further, he submitted that he did not file a Duty of Fair Representation complaint at the Ministry of Labour because the union had made efforts on his behalf; the National Representative tried to use persuasion with the employer on behalf of the applicant; the chief steward had looked into his concerns and discussed them with the National Representative, the union’s health and safety representative had made an effort on his behalf in dealing with the employer, though he refused to file a grievance. He submitted that because the union did take action, his concerns should not be addressed through a Duty of Fair Representation complaint, but because the efforts were inadequate, they should be addressed as a Human Rights Application. In short, he submitted that a discrimination grievance was warranted but was not filed and he believes that his Application, therefore, has a strong prospect of success. He also allowed that some of the ten grievances filed on his behalf relate to discrimination.

18The applicant also made argument regarding the timeliness of the allegations contained in his Application and whether the allegations were identical to those made in his April 2009 HRTO Application filed against the employer and in his grievances.

19At the summary hearing, the respondent relied upon its original Response and in addition, cited several HRTO cases, including Traversey v. Mississauga Professional Firefighters’ Association 2009 HRTO 996 (“Traversy”), Blais v. Canadian Union of Public Employees Local 3902 2011 GRTI 2113 (“Blais”), and Vere v. CAW Local 4207 2012 HRTO 123 (“Vere”).

20The respondent submitted that over the years the applicant has raised a number of issues to the union with regard to his employment and that ten grievances have been filed on his behalf, all of which have proceeded to arbitration. It acknowledged that a grievance was not filed each time that the applicant requested the union to do so and that in each of these instances, there were non-discriminatory reasons and that these reasons were communicated to the applicant. It submitted that such reasons could include considerations such as timeliness, whether the allegation related to a breach of the collective agreement, whether the evidence appeared to support his allegations, etc. As an example, they pointed to the email from the National Representative which was cited by the applicant, and indicate that this kind of response, indicating that there was a poor legal case and little chance of success, would be a good example of the union’s reasons for refusing to proceed with a grievance.

21The union submitted that the fact that it did not file every grievance the applicant wanted it to file is not a violation of the Code unless the decision not to file the grievance was made for discriminatory reasons. The union is not required to take every grievance forward, whether or not the applicant alleges that the grievance is founded on a violation of the Code. The respondent notes that the applicant himself had indicated that he did not make a complaint to the OLRB because the union had advocated on his behalf, just not to the extent he wanted it to. The respondent submitted that there was no indication that the union made its decision not to file certain grievances because of his disability. The respondent noted that the applicant made reference to emails from the union, but submitted that there is nothing to indicate that he has the evidence he would require to properly allege discrimination on the part of the union.

22The respondent cited Traversey, and argued that the mere failure to file a grievance regarding discrimination is not discrimination contrary to the Code. Whether or not the union “could have done more” is not evidence of discrimination. The respondent argued that there is no evidence that the applicant was treated differently because of his disability.

23The respondent cited Blais, and argued that just because the applicant disagrees with the way in which the union advocated for him does not mean that it discriminated against him.

24The respondent cited Vere, arguing that the fact that the applicant may disagree with the union’s decisions and actions in providing representation does not form the basis of an application under the Code, and that such matters are rather the subject of Duty of Fair Representation complaints before the Ontario Labour Relations Board.

25The respondent also submitted that while the applicant appears to be alleging that the union would not defend his human rights, or act on his behalf in the arbitration process where a human rights issue was concerned, his concerns really relate to the fact that when he filed an Application at the HRTO against his employer in 2009, the union would not represent him.

26The respondent also made argument regarding the timeliness of certain allegations in the Application as well as argument regarding whether the allegations were identical to those made in his previous HRTO Application against the employer and in his grievances.

Decision

27As I dismiss this Application on the basis that it has no reasonable prospect of success, I need not consider the respondent’s arguments for dismissal on other grounds.

28Section 6 of the Code states:

Every person has a right to equal treatment with respect to membership in any trade union, trade or occupational association or self-governing profession without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

29The applicant’s allegation that the union did not file a discrimination grievance every time he asked them to file one is not in and of itself evidence of discrimination contrary to the Code, absent any evidence establishing differential treatment. In Traversey, the Tribunal stated as follows at paragraph 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.

30In fact, the applicant has indicated that the union filed grievances regarding discrimination on his behalf, but did not file others, and that it cited financial consequences to proceeding to arbitration, a good working relationship with the employer and poor chances of success as its reasons for these decisions. He also said that any time he wanted to file a grievance, the union was reluctant, though he does not dispute that ten grievances have been filed on his behalf and have proceeded to arbitration, including grievances where discrimination was alleged. The fact that certain grievances he wished to file alleged discrimination by the employer does not make the union’s decisions a violation of the Code unless he can point to evidence that the union’s decision was based on discriminatory factors. The applicant has not pointed to evidence he would rely upon to link the union’s failure to file all of the grievances he wanted them to, to his disability. Without such a link, there is no reasonable prospect that the union’s decisions regarding filing grievances will be found to be discriminatory and the allegations relating to the union’s failure to file grievances are dismissed on that basis.

31The applicant has also indicated that he disagreed with the union regarding its strategy of proceeding with all grievances together, post termination of his employment. Again, he has pointed to no evidence to link the union’s decision in this regard to a consideration of his disability. Without such a link, there is no reasonable prospect that the union’s decision regarding how to proceed with his ten grievances could be found to be discriminatory and this allegation is dismissed on that basis.

32The applicant also alleges that the union’s health and safety representative did not always come to inspect the worksite when he made a request for him to do so. He alleges that his worksite was unsafe. Even if this was a worksite where he was located to perform modified work due to his disability, he has not pointed to evidence upon which he would rely to indicate that the health and safety representative did not inspect the worksites because of the applicant’s disability. Without such a link, there is no reasonable prospect that the allegations he makes regarding the union’s failure to inspect his work site will be found to be discriminatory and these allegations are dismissed on that basis.

33The applicant has alleged that the respondent provided incorrect information to the employer in discussions regarding accommodated work. It is clear that he disagrees with the way in which the union participated in discussions regarding modified work for him, but again, the fact that he disagreed with the union or that he feels the union’s efforts on his behalf were inadequate does not by itself amount to discrimination under the Code. There is no suggestion that the union blocked the employer’s efforts to accommodate the applicant. The applicant has not pointed to evidence upon which he would rely to establish that the union’s alleged actions were based on improper, discriminatory, considerations. Accordingly, this allegation is dismissed on the basis that it has no reasonable prospect of success.

34In his allegations regarding the union’s alleged interaction with the Ministry of Labour on his behalf, the applicant has not pointed to any evidence to link the union’s alleged actions with his disability. Accordingly, there is no reasonable prospect that this allegation will be found to be discrimination by the union and it is dismissed on that basis.

35The applicant has pointed to no evidence upon which he would rely to link the union’s decision not to provide him with representation for his HRTO Application against the employer and improper discriminatory considerations and therefore this allegation has no reasonable prospect of success. Accordingly, it is dismissed on that basis.

36In explaining why he did not file a Duty of Fair Representation complaint at the Ontario Labour Relations Board, the applicant makes it clear that while the union made efforts on his behalf, he does not feel it did enough for him. The failure to advocate as strenuously on his behalf as he would like, or in the way in which he would like, however, cannot in itself amount to discrimination under the Code. Again, the applicant has not pointed to evidence upon which he could rely to indicate that his disability was a factor in the union’s decisions. The power of the Tribunal is limited to dealing with applications alleging a violation of the Code, which prohibits discrimination on specific grounds. It does not have the power to deal with all claims of unfairness or all disputes between parties. As the Tribunal stated in Vere at paragraph 38:

In sum, this Tribunal has held that, in the absence of evidence that a union’s action or inaction was based on a discriminatory factor, not only is a union’s failure to file or pursue a grievance not in itself discriminatory, but so is a union’s failure to advocate on the applicant’s behalf or its failure to assist an applicant in addressing discrimination or to contest the employer’s actions. This kind of conduct may or may not provide a basis for a duty of fair representation complaint against the union under s. 74 of the Labour Relations Act. But it is not this Tribunal’s jurisdiction to determine whether a union fairly or adequately represented a member in the absence of evidence that its conduct was based on a discriminatory factor. That is the role and jurisdiction of the Ontario Labour Relations Board.

37In summing up, while it is clear that the applicant disagreed with decisions and actions of the respondent, he has not pointed to evidence upon which he could rely to establish that the union treated him differently because of his disability. Without this, his Application cannot succeed and it is dismissed as having no reasonable prospect of success.