Duffy v. Ontario Public Service Employees’ Union, 2013 HRTO 1130

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Matthew Duffy

Applicant

-and-

Ontario Public Service Employees’ Union

Respondent

DECISION

Adjudicator: Sheri D. Price

Date: June 26, 2013

Citation: 2013 HRTO 1130

Indexed as: Duffy v. Ontario Public Service Employees’ Union

APPEARANCES

Matthew Duffy, Applicant ) Self-represented

Ontario Public Service ) Eric O’Brien, Counsel Employees’ Union, Respondent )

INTRODUCTION

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which the applicant alleges that the respondent trade union reprised against him contrary to s.8 of the Code because he refused to infringe another person’s rights under the Code.

2Pursuant to a Case Assessment Direction dated December 18, 2012, the Tribunal directed, on its own initiative, that a summary hearing be convened pursuant to Rule 19A of the Tribunal’s Rules of Procedure to determine whether the Application should be dismissed on the basis that there was no reasonable prospect that the Application would succeed. The Tribunal also directed that the summary hearing would be to determine whether all or part of the Application ought to be dismissed pursuant to s.45.1 of the Code on the basis that another proceeding, an Application under the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, alleging that the respondent trade union had breached its duty of fair representation to the applicant, had appropriately dealt with the substance of the Application.

3The summary hearing was held by teleconference on March 28, 2013. During the summary hearing, the applicant was given an opportunity to explain how he could establish that the respondent reprised against him contrary to s.8 of the Code, if the Application were to proceed. The parties were also given an opportunity to make submissions on the s.45.1 issue.

4For the reasons that follow, I find that the applicant has no reasonable prospect of establishing that the respondent reprised against him for refusing to infringe another person’s rights under the Code. The Application is dismissed accordingly.

BACKGROUND

5Although the respondent indicated during the summary hearing that it denies the applicant’s allegations, it has not yet been required to file a Response to the Application. Accordingly, the facts upon which this decision are based are the facts as asserted by the applicant.

6The applicant has been employed as a correctional officer with the Ontario Ministry of Community Safety and Correctional Services (“the Ministry”) for more than 25 years, in which role he has been responsible for the care, custody and control of inmates.

7The applicant alleges, that on December 6, 2011, he witnessed a coworker, another correctional officer, physically assault an African-Canadian male inmate during a routine strip search of the inmate. Specifically, the applicant alleges that, during the strip search, he saw the inmate in question “suck his teeth” at the correctional officer who was conducting the strip search. The applicant submits that this gesture (sucking one’s teeth) is universally regarded as conveying disrespect. The applicant alleges that, in response to this disrespectful gesture, the correctional officer who was searching the inmate slapped the inmate’s face and told the inmate, “Don’t suck your teeth at me.”

8The applicant alleges that, in addition to himself and the correctional officer who was searching the inmate, two other correctional officers witnessed the December 6, 2011 incident.

9Subsequently, there was an investigation about the December 6, 2011 incident by the Ministry. The applicant contends that he urged the coworker who slapped the inmate to tell the truth about what had happened. However, the coworker indicated that he was unwilling to do this because he was afraid that he would lose his job.

10The applicant submits that his initial Incident Report about the December 6, 2011 incident was truthful in its entirety except that it omitted any reference to the correctional officer slapping the inmate. According to the applicant, the other two correctional officers who observed the incident similarly failed to disclose that the correctional officer had slapped the inmate in their reports about the incident.

11On December 14, 2011, the applicant submits that he decided to break what he characterised as the “Code of Silence” that exists among correctional officers and to tell the whole truth about what he had witnessed. Accordingly, the applicant filed a very short addendum to his Incident Report, stating that he had observed the correctional officer slap the inmate’s left cheek with his right hand, right after the inmate “sucked his teeth” at the officer.

12In the Application that he filed with the Tribunal, the applicant maintains that the December 6, 2011 incident was a “racially motivated assault”. Specifically, the applicant submits that, when the black inmate in question was slapped for “sucking his teeth” at the correctional officer, he was basically slapped because of his race. This, the applicant explains, is because in his extensive experience in corrections, black men are the only ones who “suck their teeth” as a means of showing disrespect.

13However, the applicant did not make any such allegations of racial discrimination in the initial Incident Report or addendum that he filed with his employer about the December 6, 2011 incident. Rather, the applicant submits that, in his addendum, he “stuck to the facts”. That is, he stated only what the inmate did during the strip search and what the correctional officer said and did in response.

14Shortly after the applicant filed the above-noted addendum, the other correctional officers who were involved in and/or who witnessed the December 6, 2011 incident were suspended pending an investigation. The applicant submits that as he was the only one who was present during the December 6, 2011 incident who was not suspended, he immediately came under suspicion for having broken the “Code of Silence” and having told the truth about what had occurred.

15The applicant submits that, following this, he was completely ostracized and subjected to continuous and escalating reprisals from his peers in the workplace. Among other things, the applicant alleges that coworkers stopped speaking to him and/or standing near him during muster. In addition, the applicant alleges that coworkers had discussions in front of the applicant about how hard it must be for the suspended employees to be off work with children to support, wrote derogatory things about the applicant on the bulletin board at work, glared at him, and subjected him to prank telephone calls, etc.

16The applicant contends that the respondent union is responsible for the above-noted reprisals and ostracization he experienced in the workplace. Specifically, the applicant contends that various members of the executive of his local union, Ontario Public Service Employees’ Union, Local 517, as well as union members of the Joint Health and Safety Committee, treated the applicant like a “rat” and tried to intimidate him for reporting the truth about the December 6, 2011 assault on an inmate by another union member. The applicant submits that the correctional officers with whom he worked look to the local union executive and union members of the Joint Health and Safety Committee for information, direction and leadership. Accordingly, the applicant alleges that when members of the local union executive and Joint Health and Safety Committee “discredited” and “vilified” him for telling the truth, the respondent union effectively “mobilized” the correctional line staff against him. In this way, the applicant alleges that the respondent reprised against him contrary to s. 8 of the Code.

17In addition, the applicant alleges that the respondent reprised against him in January 2012 when it asked him to resign as chief steward with the local union, ostensibly because of financial discrepancies. However, the applicant submits that this was merely a false pretence.

18The applicant submits that after four months of being ostracized in the workplace, he could not take it any more. The employer transferred him elsewhere. However, the applicant has encountered difficulties in such transfers as well. The applicant submits that he can no longer work in a prison in Ontario just because he came forward and told the truth.

ANALYSIS

19Section 8 of the Code provides as follows:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

20In order to succeed in a claim of reprisal under the Code, the applicant would have to establish that the respondent did something with the intention of retaliating against him for claiming or enforcing his rights under the Code; instituting or participating in proceedings under the Code; or refusing to infringe another person’s rights under the Code: Noble v. York University, 2010 HRTO 878.

21In this case, the applicant alleges that the respondent reprised against him for refusing to infringe the rights of another person under the Code. Specifically, the applicant alleges that the respondent reprised against him contrary to s.8 of the Code when it mistreated the applicant and/or caused others in the workplace to mistreat the applicant because he admitted to having witnessed an assault on an inmate on December 6, 2011.

22I find that this allegation has no reasonable prospect of success.

23At the outset, I would note that it is unclear, even on the facts as alleged by the applicant, that the December 6, 2011 assault was discriminatory based on the inmate’s race. In order for the assault to have been discriminatory, the applicant would have to establish that the correctional officer slapped the inmate because of the inmate’s race. However, that is not really what the applicant is alleging. The applicant submits that the correctional officer slapped the inmate because the inmate was disrespecting him. The link to race, the applicant submits, lies in the manner in which the inmate was showing disrespect to the officer. According to the applicant, the inmate’s actions – sucking his teeth to show disrespect – were linked to his race. However, it is not clear to me that that is a sufficient basis to find that the correctional officer’s actions were also linked to the inmate’s race. In any event, it is not necessary for me to determine this issue in order to dispose of the applicant’s reprisal claim.

24In order to establish that he was refusing to infringe the inmate’s rights under the Code when he reported the December 6, 2011 assault, the applicant would have to establish that by failing to report the December 6, 2011 incident, he would have infringed the inmate’s rights under the Code. However, the alleged facts do not support such a conclusion. This is not a situation where the applicant alleges that the inmate in question was subjected to ongoing discriminatory treatment and the applicant was obliged to speak up about it, lest he become complicit in such discrimination. If it were, then perhaps an argument could be made that by telling the truth about what occurred, the applicant was “refusing to infringe” the inmate’s rights under the Code. In this case, however, where the applicant made a truthful report about a single incident that he observed, I do not see how the applicant’s failure to report the truth could be construed as him having infringed the inmate’s rights under the Code. This is not to say that the applicant’s actions in coming forward and telling the truth about what occurred were not laudable. However, that is not the issue before me. The issue before me is whether the applicant himself would have been infringing the inmate’s rights under the Code if he had failed to report the December 6, 2011 assault; and correspondingly that by reporting the incident, he was refusing to infringe the inmate’s rights under the Code. For the reasons articulated above, I do not think he has a reasonable prospect of doing this.

25In concluding that the applicant has no reasonable prospect of proving that he was refusing to infringe another’s person’s rights under the Code when he reported the December 6, 2011 assault, I am also mindful of the fact that the applicant did not report that the inmate’s rights under the Code had been infringed when he filed his “truthful addendum”. As noted above, although in his Application to the Tribunal the applicant takes the position that the December 6, 2011 assault was “racially motivated”, neither the Incident Report or addendum he filed with his employer contained an allegation that the inmate’s race was a factor in the alleged assault or that the inmate had been discriminated against or harassed contrary to the Code. In the circumstances, I cannot see how the applicant, by providing a factual account about what he had seen and heard on December 6, 2011, was “refusing to infringe another person’s rights” under the Code.

26The thrust of the applicant’s submissions is that the respondent retaliated against him in various ways for breaking the unwritten “Code of Silence” among correctional officers and for telling the truth about what he witnessed. That may be. However, s. 8 of the Code does not prohibit reprisals for whistleblowing or for telling the truth per se. The Tribunal’s jurisdiction under the reprisal section of the Code is limited to dealing with retaliatory threats and actions experienced as a result of a person having engaged in one of the three protected activities identified in s.8 of the Code. There are no facts alleged in this case that, if true, would allow the Tribunal to conclude that the applicant was engaging in one of the three protected activities identified in s.8 when he reported what he had observed on December 6, 2011.

27For the above reasons, in the particular circumstances of this case, I find that the applicant has no reasonable prospect of success in proving that he refused to infringe on another person’s rights under the Code when he told the truth about having witnessed another correctional officer slap an inmate. It necessarily follows from this that the applicant has no reasonable prospect of success in proving that the respondents reprised against him for refusing to infringe on the rights of others under the Code.

28Accordingly, the Application has no reasonable prospect of success. It is dismissed accordingly.

29In light of my decision that the Application has no reasonable prospect of success, it is not necessary for me to determine whether all or part of the Application ought to be dismissed pursuant to s.45.1 of the Code.