Edith Bell-LaFlamme v. Trentway Wager / Coach Canada, 2013 HRTO 1283

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Edith Bell-LaFlamme

Applicant

-and-

Trentway Wager / Coach Canada, Amalgamated Transit Union 1624 and Workplace Safety and Insurance Board

Respondents

DECISION

Adjudicator: Douglas Sanderson

Date: July 23, 2013

Citation: 2013 HRTO 1283

Indexed as: Bell-LaFlamme v. Trentway Wager/Coach Canada

APPEARANCES

Edith Bell-LaFlamme, Applicant

Self-represented

Trentway Wager / Coach Canada, Respondent

Craig Lawrence, Counsel

Amalgamated Transit Union 1624, Respondent

Lisa Fineberg, Counsel

Workplace Safety and Insurance Board, Respondent

Agnes Wintersinger, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability and reprisal.

The Application

2The applicant was a bus driver for the respondent Trentway Wager / Coach Canada (“Trentway”) and was represented by the respondent Amalgamated Transit Union 1624 (the “union”). The applicant suffered a workplace injury in March 2007 and remained out of work for several years while receiving benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A. The applicant returned to work on February 10, 2012.

3Prior to her injury the applicant was a “line” driver, meaning she drove on assigned lines or routes. After her return to work the applicant was assigned to charter work. The applicant was dismissed from employment on June 5, 2012 for using the corporate credit card assigned to her for personal use. The applicant does not dispute that she used her corporate card for personal use, but submitted that she did so out of necessity (to pay for gas to get to work when she was short of funds), other male drivers had used their corporate cards for personal expenses and Trentway only discovered her use of the credit card when she repaid the money she had charged to the card. The applicant alleges that her dismissal was a reprisal because of her lengthy absence due to her injury. The applicant alleges that the long delays she met with in the Workplace Safety and Insurance Board’s (“WSIB”) processes caused her to be out of work for such an extended period.

Summary Hearing

4By Case Assessment Direction (“CAD”) dated March 1, 2013, the Tribunal ordered a summary hearing to determine whether the Tribunal should dismiss the Application because it has no reasonable prospect of success. The Tribunal noted that the Tribunal does not have a general power to deal with allegations of unfairness and that an applicant must be able to show a link between a respondent’s alleged actions and one or more prohibited ground of discrimination. In the CAD the Tribunal directed the parties to address the following three issues:

1. Whether the applicant can point to evidence linking the respondents’ alleged actions to a prohibited ground of discrimination;

2. Whether the applicant can point to evidence that could establish an intention on the part of the respondents to retaliate against her because she asserted her rights under the Code; and,

3. Whether some of the respondents are federally regulated and therefore outside of the Tribunal’s jurisdiction.

5The Tribunal held the summary hearing on May 15, 2013 by teleconference.

Reasonable Prospect of Success

6Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

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.

7In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paragraphs 8-10:

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.

8The Tribunal has stated on many occasions that it does not have a general power to deal with allegations of unfairness. See for example: Szabo v. Office of a Member of Parliament of Canada, 2011 HRTO 2201 and Badvi v. Voyageur Transportation, 2011 HRTO 1319. Discrimination generally involves an allegation of unfair treatment because of one or more of the grounds under the Code, such as disability or family status. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics was a factor in the treatment the applicant experienced. At the summary hearing stage, the Tribunal does not determine whether the applicant is telling the truth or assess the impact of the treatment he or she experienced. There is no question that acts of unfairness that are not legally discriminatory can cause significant harm.

9At a summary hearing, the test the Tribunal applies is that of no reasonable prospect of success, which is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The mere fact that a person identified by a prohibited ground of discrimination experiences some kind of disagreeable or unfair treatment is not generally sufficient to support an inference of discrimination. The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics. However, if the applicant is unable to point to circumstances beyond their own assumptions or belief, the application may be found to have no reasonable prospect of success.

The Applicant’s Submissions

10The applicant submitted that some male employees had used their corporate credit cards for personal expenses, but Trentway did not dismiss them from employment. The applicant submitted that union officials had informed her of this and she stated that she would subpoena Trentway’s records to determine the employees who had not been dismissed in similar circumstances and why. The applicant submitted that the meeting in which the union members considered whether to file a grievance on her behalf had been recorded. The applicant did not believe that any other such meeting had been recorded, which she submitted was discriminatory. The applicant submitted that e-mail messages sent by union members and officials would show that they were hostile to her. The applicant submitted that she was “set up” from the time she returned to work because she was assigned to drive charter busses and no one would help her in her return to work, although she requested help. The applicant submitted that she was forced to go through the WSIB’s processes to get treatment, and, as a result, did not received the surgery she needed until late 2011 and did not return to work until February, 2012.

11When I asked the applicant about the connection between the WSIB’s actions and a prohibited ground of discrimination, the applicant acknowledged that she did not know what the link might be. The applicant also acknowledged that Trentway and the union are federally regulated organizations, noting that Trentway is in the business of bussing passengers between provinces and into the United States of America. Prior to her injury, the applicant’s regular assignment was to drive between Toronto, Ontario and Buffalo, U.S.A. The applicant attached her duty of fair representation complaint to the Canada Industrial Relations Board (“CIRB”) against the union, as the narrative to the Application.

Decision

12Pursuant to subsection 92(10)(a) of the Constitution Act, 1867 (U.K.), 30 & 31 Victoria, c. 3, transportation works and undertakings that extend beyond the limits of a province are within federal jurisdiction. There is no dispute that Trentway operates an inter-provincial and international bussing business. Accordingly, Trentway’s operation comes within federal jurisdiction. There is also no dispute that labour relations between Trentway and the union are federally regulated. The fact that the applicant filed a complaint against her union with the CIRB confirms that the union was certified pursuant to Part I of the Canada Labour Code, RSC 1985, c L-2. Therefore, the Tribunal has no jurisdiction to deal with this Application as against Trentway and the union.

13The applicant pointed to no evidence that indicates that the WSIB’s actions regarding the treatment of her injury and her return to work were connected to a prohibited ground of discrimination, which she candidly acknowledged. The applicant is understandably unhappy regarding the delays she experienced during the WSIB’s process in receiving treatment and returning to work, but without a connection to a prohibited ground of discrimination, her allegations against the WSIB have no reasonable prospect of success.

14The Application is dismissed.