Martin Majhi v. Fairmont Royal York Hotel and Unite HERE Local 75, 2012 HRTO 954

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Martin Majhi

Applicant

-and-

Fairmont Royal York Hotel and Unite HERE Local 75

Respondents

INTERIM decision

Adjudicator: Keith Brennenstuhl

Date: May 11, 2012

Citation: 2012 HRTO 954

Indexed as: Majhi v. Fairmount Royal Hotel

APPEARANCES

Martin Majhi, Applicant ) Mohsin Bhuyan, Representative

Fairmont Royal York Hotel, Respondent ) James Knight, Counsel

Unite HERE Local 75, Respondent ) Heather Ann McConnell, Counsel

1This is an Application 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 the area of employment on the basis of race, colour, place of origin, ethnic origin and disability.

2By Case Assessment Direction (“CAD”) dated December 7, 2011, the Tribunal directed that a summary hearing be held by teleconference. It stated as follows at paragraphs 6:

The Tribunal’s Registrar will schedule a half-day summary hearing by teleconference. The applicant will proceed first during the summary hearing. The applicant shall make argument about why the Application should not be dismissed as against Unite HERE Local 75 as having no reasonable prospect of success, and point to the evidence on which the applicant will prove a link between the respondents’ actions and the grounds cited.

ANALYSIS

Summary Hearings

3The summary hearing process is outlined in Rule 19A of the Tribunal’s Rules of Procedure. In a summary hearing the issue is whether an 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.

4In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8-10, 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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

Application to the Facts

5The applicant has been employed by the Fairmont Royal York Hotel (“Royal York”) in the Stewarding Department as a Pot Washer since April, 1999. In May 2010 the applicant underwent quadruple bypass surgery and as a result has limited lifting restrictions which prevents him from performing the duties of a Pot Washer. He claims that Royal York has failed to accommodate him in another position consistent with his restrictions.

6The applicant complaints that Unite HERE Local 75 (the “Union”) has mishandled his grievance against Royal York with respect to the accommodation of his disability. He contends that the Union has failed to advance his grievance in accordance with the collective agreement. The applicant views the minutes of settlement entered into by the Union and Royal York in response to the grievance as unsatisfactory and wants the Union to move the grievance to arbitration. He feels that the Union has acted in bad faith, has been dismissive and has abandoned him.

7The gist of the applicant’s claim against the Union is that it had an obligation, as his bargaining agent, to find a resolution to his grievance that would meet with his approval. A union cannot be found to have violated the Code however, merely because it has failed to satisfactorily or adequately represent one of its members. This was clearly addressed in the CAD at para 5:

The 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, 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. In this case, it appears that the applicant is alleging merely that his bargaining agent failed to pursue a human rights grievance on his behalf or provide appropriate representation.

8In the present case the applicant has not asserted that his disability, or any other prohibited ground, was a reason for the Union’s conduct in handling his grievance. Moreover, he did not point to any evidence that he has or that would be reasonably available to him that would link the Union’s conduct to his disability. In the absence of such evidence, I am of the view that the Application as against the Union has no reasonable prospect of success.

9The Application as against the Union is dismissed and the style of cause is amended accordingly. The applicant and the Royal York have agreed to mediation. The Registrar shall issue a Notice of Mediation in the usual course.

10I am not seized.