Harold Woodbeck v. Canadian Union of Public Employees, Local 87, 2012 HRTO 915

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Harold Woodbeck

Applicant

• and-

Canadian Union of Public Employees, Local 87

Respondent

decision

Adjudicator: Brian Cook

Date: May 7, 2012

Citation: 2012 HRTO 915

Indexed as: Woodbeck v. Canadian Union of Public Employees, Local 87

APPEARANCES

Harold Woodbeck, Applicant ) Self-represented

Canadian Union of Public ) Employees, Local 87, ) Respondent ) Dave Steele, ) Representative

INTRODUCTION

1This Decision deals with 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”). The applicant was employed by the City of Thunder Bay (“the employer”) and was a member of the Canadian Union of Public Employees, Local 87 (“the union”). The applicant filed two Applications with the Tribunal, alleging discrimination because of disability on the part of the employer and the union.

2In Interim Decision 2011 HRTO 666, I found that the Application against the employer was not filed within one year of the last alleged discriminatory incident and that there was not a good faith explanation for the delay. I therefore found that pursuant to section 34 of the Code the applicant could not bring the Application against the employer. I found that the Application against the union was filed within one year of the last alleged discriminatory incident but note that failure by a union to pursue a grievance or otherwise support a member is not in itself evidence of discrimination contrary to the Code.

3The applicant was directed to confirm that he wanted to pursue the Application against the union and to provide clarification of how the union’s failure to pursue the grievance was discriminatory.

4The applicant confirmed that he wanted to continue the Application against the union and provided submissions about why he believes the union discriminated against him.

5After reviewing these submissions, the Tribunal issued a Case Assessment Direction, dated December 28, 2011, directing that a summary hearing be scheduled. In 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 thereof 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.

6In 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.

7The summary hearing was conducted by telephone on April 16, 2012.

BACKGROUND

8In 2005 renovations were undertaken in the building where the applicant worked. After this the applicant experienced respiratory problems. A claim was submitted to the Workplace Safety and Insurance Board. The claim was allowed on the basis that workplace exposure had aggravated a pre-existing condition.

9The applicant was off work for a period of time on medical leave. A number of issues arose regarding the applicant’s return to work. These included the adequacy of air sampling testing, the provision of a mask and a proposal that the applicant return to work for one day accompanied by an emergency medical worker to monitor the applicant.

10In 2007, the applicant left the employment and found alternate employment with a contractor. In December 2007, the employer advised the contractor that it would not permit the applicant to work on any project on which the City was involved.

11In February 2008, the union filed a grievance alleging a failure to accommodate the applicant. On October 17, 2008, the union withdrew the grievance.

12The applicant filed the Application as against the union on June 5, 2009.

13The applicant alleges that the union discriminated against him in several ways. Overall, he believes that the union failed to advocate sufficiently on his behalf to ensure that he could safely return to work and failed to pursue grievances to support his rights.

ANALYSIS AND CONCLUSIONS

14As noted in the earlier Interim Decision in this case, an allegation that a union failed to pursue a grievance is typically not sufficient to establish an infringement of a person’s Code-protected rights. In Traversy v. Mississauga Professional Firefighters Association, 2009 HRTO 996, at paragraph 33, the Tribunal stated:

[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 must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.

15An important reason that a failure by a union to take forward an alleged failure to accommodate a disability is not itself evidence of discrimination by the union is that the duty to accommodate rests with the employer. While a union may not obstruct accommodation and must co-operate in the accommodation process, it is the employer and not the union that is responsible for offering accommodation.

16Another important reason that a failure by a union to take forward an alleged failure to accommodate a disability is not itself evidence of discrimination by the union is that a union is entitled to determine that it will not pursue a grievance because, in the union’s view, the grievance is not likely to succeed. Whether or not the union is correct in that view is not something that this Tribunal has jurisdiction to review. The Ontario Labour Relations Board has the jurisdiction to determine a complaint that a union failed to fairly represent a member. This Tribunal only has jurisdiction in such a matter if there is an allegation that a Code-related ground was a factor in the union’s failure to act. The allegation can only be successful if the applicant can provide evidence to support the allegation that the failure to act was because of discriminatory reasons and not only because the union failed to challenge the employer’s alleged discriminatory action or decision.

17In this case, the allegations against the union are that the union failed to advocate sufficiently on the applicant’s behalf. The applicant has not provided any indication that this alleged failure was because of discrimination on the part of the union. I therefore conclude that there is no reasonable prospect that the Application against the union could succeed and the Application is dismissed on that basis.