Lori McLean v. Riverside Health Care Facilities Inc., 2012 HRTO 842

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lori McLean Applicant

• and-

Riverside Health Care Facilities Inc. Respondent

INTERIM decision

Adjudicator: Brian Cook

Date: April 24, 2012

Citation: 2012 HRTO 842

Indexed as: McLean v. Riverside Health Care Facilities Inc.

APPEARANCES

Lori McLean, Applicant ) Carole Favreau, ) Representative

Riverside Health Care Facilities Inc. ) Respondent ) No one appeared

Canadian Union of Public Employees, ) David Steele, Counsel Local 4807 )

INTRODUCTION

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in employment on the basis of disability. The Application named the applicant’s former employer and the union, CUPE Local 4807, that she was a member of during her employment.

2By Case Assessment Direction dated November 8, 2011, the Tribunal directed that a summary hearing be scheduled to determine if the Application as against the union should be dismissed on the grounds that there is no reasonable prospect that the Application as against the union could succeed.

3The summary hearing was held by telephone conference call on March 19, 2012. The applicant participated and was assisted by her friend. The respondent employer did not participate in the hearing.

BACKGROUND

4The Application arises out of events in July 2010. The applicant was employed as a Registered Nurse Assistant or Registered Practical Nurse. The applicant admitted that on or about July 26, 2010 she took a pill from a supply prescribed to a patient. The applicant resigned her employment on August 11, 2010. A grievance was not filed.

5The Application as against the respondent employer alleges that the applicant was improperly forced to resign because she otherwise would have been fired. The applicant alleges that the employer should instead have recognized that she had a disability and taken steps to accommodate the disability. She alleges that the respondent knew that she had a history of substance abuse. She received treatment for this in 2006 and had no further problems until July 2010.

6The Application alleges that when she asked the union for assistance she was told that nothing could be done. In her view, the union’s failure to file a grievance or otherwise intervene shows that the union condoned the employer’s alleged discrimination.

7In its Response, the union set out its understanding of the facts giving rise to the Application in the following terms:

The applicant resigned her employment upon being confronted by Riverside with an allegation of ingesting medication belonging to a patient. Ms. McLean admitted that she both stole and consumed the patient’s medication.

The Union, through Ms. Webb, provided advice and assistance to Ms. McLean in the course of dealing with the Employer’s allegations. Specifically, Ms. McLean was advised that based on her past record of substance abuse and efforts made by the Employer to assist her with treatment for substance abuse and addiction, it was uncertain whether a grievance challenging her termination would be successful hence, the Employer’s offer to resign maybe preferable.

8At the hearing, Mr. Steele, the union’s representative, noted that the applicant had not asked the union to file a grievance as she apparently chose to resign. Mr. Steele submits that the applicant would be unable to show that the fact that a grievance was not filed was in any way due to discrimination on the part of the union as against the applicant.

9The applicant indicated that the only reason that she was given at the time for the union’s unwillingness to intervene was that she had a history of substance abuse. In her view this shows that the union discriminated against her for the same reason that the employer discriminated against her.

ANALYSIS

10The Tribunal, in its Case Assessment Direction of November 8, 2011, noted that a failure by a union to pursue a grievance is not in and of itself a breach of the Code. The Case Assessment Direction noted the following observation from the Tribunal’s decision in Traversy v. Mississauga Firefighters’ Association, 2009 HRTO 996, 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.

11In Baylet, the case mentioned above, the Tribunal noted as follows:

The failure to represent an employee on a human rights claim is not, in and of itself, a breach of the Code, nor does it automatically make the Union a party to the alleged discrimination by the Employer. To found a claim against the Union, the applicant must provide a factual basis that could give rise to a finding that it discriminated against him. For example, the applicant could allege that the Union interfered with the accommodation process or made its decision not to represent the applicant because of discriminatory factors. Both of these assertions would require a factual underpinning.

One can not presume that a union’s failure to act was based on discriminatory beliefs. There may be many reasons why a union might choose not to pursue a human rights claim on behalf of an employee that have no discriminatory overtones. As such, it is essential that a factual basis for the alleged discriminatory conduct be established. A claim of discrimination must go beyond the mere fact that a particular union did not act.

12As noted in the Tribunal Decisions mentioned above, the failure or refusal by a union 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. It does not necessarily mean that the union condones or agrees with the employer’s actions. It may, for example, mean that the union is of the opinion that a grievance would have no chance of success.

13In this case, the applicant’s allegation against the union is that the union refused to intervene to assist her in dealing with her allegation that she was forced to resign for discriminatory reasons. She does not allege that the union was otherwise involved in the alleged discrimination. While the explanation she was allegedly given was that she had a history of substance abuse, this does not mean that the union discriminated against her. The union agrees that the applicant’s history was a factor in its decision because it was required to consider whether this history, combined with the admitted events in July 2010 and the employer’s previous involvement, meant that a grievance was unlikely to succeed. The union determined that the grievance would not likely succeed and advised the applicant that her best option would be to voluntarily resign rather than face termination for cause. The applicant accepted that advice.

14The determination of whether a grievance is likely to succeed is a determination that a union is entitled to make. The union might be wrong in its assessment but that does not mean that the decision not to pursue the grievance was discriminatory. In this case, it appears that the applicant did not actually ask the union to file a grievance. Instead, she took the union’s advice and voluntarily resigned.

15Having heard from the applicant and the union, it is my view that there is no reasonable prospect that the applicant could successfully show that the union’s decision not to intervene was based on discriminatory factors as opposed to a non-discriminatory assessment of whether the grievance would succeed. I therefore find that the Application as against the union should be dismissed.

ORDER

16The Application as against the union is dismissed on the grounds that there is no reasonable prospect that the Application as against the union could succeed.

17The Tribunal will continue to process the Application as against the employer.

18I am not seized.