HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sean Taylor-Cole
Applicant
-and-
Orangeville Police Association, Lindsay White, Doug Fry and Dianne Waddell
Respondents
DECISION
Adjudicator: David Muir
Indexed as: Taylor-Cole v. Orangeville Police Association
APPEARANCES
Sean Taylor-Cole, Applicant
Angela L. Browne, Representative
Orangeville Police Association, Lindsay White, Doug Fry, and Dianne Waddell Leblanc, Respondents
Gary Hopkinson and Karen Ensslen, Counsel
1The applicant is a police officer. The respondents are in turn, an association of police officers employed by the Orangeville Police Services Board and members of the Executive of the Association at the material times.
2The applicant believes that she experienced harassment by two supervisory officers of her police service. She complained about this and her employee association (the “Association”) filed a grievance on her behalf in the summer of 2007. The arbitration began and the applicant gave some evidence at the arbitration hearing. In advance of the resumption of the arbitration hearing the respondents made a decision to withdraw from the grievance proceeding, leaving the option of the applicant to proceed with the hearing on her own account. The arbitration has been adjourned sine die.
3The applicant believes that the manner in which the respondents’ decision was arrived at and the decision itself was informed in whole or in part by the fact that the applicant was at the material times a person with a disability. The applicant also believes that the respondent failed to appropriately accommodate her disability related needs in the manner in which they conducted settlement discussions with the employer in February 2011 and that she was mistreated by the individual respondents at two membership meetings in March and April 2011 in a manner that constitutes discrimination under the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). These latter allegations are also relied upon to support the applicant’s argument that the decision to withdraw from the grievance was discriminatory.
4A hearing was held on May 6 and 7, 2013. I heard from the applicant and a number of witnesses called by her: Curtis Rutt; Andy May; Aaron Grabowski; Andrea Parr; Stephen Fisher; Joel Lacoursiere. I also heard from the individual respondents and Peter Vanasse in the respondents’ case. At the conclusion of the evidence the parties agreed to make submissions in writing on an agreed schedule. Those submissions have been received and reviewed in preparing these reasons.
Background
5In a Case Assessment Direction issued on July 11, 2011 the Tribunal on its own initiative directed that a summary hearing be held to determine whether or not this Application should be dismissed, in whole or in part, because it had no reasonable prospect of success. A summary hearing was held and in 2011 HRTO 2285 the Tribunal concluded that it could not be determined at that stage that the Application had no reasonable prospect of success based in large part on allegations that were not included in the Application but were raised for the first time at the summary hearing. In particular the Tribunal noted that the applicant alleged that during a membership meeting on April 11, 2011 the respondent Waddell made a hand gesture which may have suggested the applicant was mentally ill and that respondent Fry told another member of the Association that the applicant was a “loony” and that other degrading remarks were made about the applicant. The Tribunal directed that the applicant provide full particulars of these new allegations. See 2013 HRTO 23.
6Further clarification of the applicant’s allegations was made during a conference call in February 2013 and confirmed in a CAD issued on March 21, 2013.
7In her final submissions the applicant made new allegations (or reframed the allegations that were made) that were not raised in the Application or in subsequent efforts to clarify the issues in dispute. For example in final submissions the applicant argued that the respondents had an obligation to continue to participate in the arbitration as an accommodation of the applicant’s disability related needs. She also argued that the respondents, the employer and the arbitrator had an obligation to accommodate her in that process. At the outset of the hearing I confirmed that the principle allegations in this case were as follows:
a) That the respondent’s decision to withdraw from the grievance procedure was influenced by the fact that the applicant is or was a person with a disability.
b) That the manner in which the settlement discussions were conducted was discriminatory which appears to be an alleged failure to accommodate the applicant’s disability related needs.
c) That the manner in which the applicant was treated, particularly in one or two membership meetings was discriminatory.
8The particulars of this latter allegations are as follows:
The applicant alleges that at a membership meeting on March 8, 2011, the respondent Fry lied to the membership when he advised that the applicant was looking for close to a million dollars to settle her grievance and that the applicant had engaged the media to investigate her complaints of harassment. The applicant alleges that these “lies” were intended to undermine the applicant and to build support for the respondents’ decision to withdraw from the grievance arbitration.
The applicant also alleges that when she attended the April 11, 2011 meeting to appeal to the members to overturn the respondents’ decision to withdraw from the grievance, the respondent Waddell smirked at her and constantly interrupted her. The applicant also alleges that the respondent Waddell also made a circular motion with her index finder by the side of her head to indicate that the applicant was “crazy”. The applicant alleges as well that the respondent White cut the applicant off after five minutes and then yelled at her to stop talking. The applicant alleges that the respondent White said that he doubted the applicant’s ability to take the stand at the arbitration hearing due to her mental instability.
9These are the issues that I am able to deal with and will canvass below. To the extent that the applicant raised new issues or reframed her allegations in a substantial way these arguments and submissions have not been addressed in detail. As well the respondents complain, correctly in some respects, that in her final submissions the applicant tendered new evidence including evidence of conversations between the applicant and her representative about some of the issues in dispute in this case. I have decided this case based on the evidence tendered by the parties at the hearing and have disregarded anything which was not adduced at the two day hearing or can be found in the documents placed before me.
10The respondents argue that the decision to withdraw from the grievance was taken for a number of reasons including the financial position of the Association and what they perceived to be a break down in the relationship with the applicant. The respondents deny that they failed in any obligation they might have owed the applicant in the settlement process and deny that any of the alleged conduct of the personal respondents at the membership meetings on March 8 and April 11, 2011 occurred or was discriminatory (to the extent they participated in these meetings). The respondents do not dispute that the applicant is and likely was a person with a disability but deny having any specific knowledge of any particular disability related needs at the material times in particular in relation to the settlement discussions.
The Legal Framework
11Section 6 of the Code provides:
- Every person has a right to equal treatment with respect to membership in any trade union, trade or occupational association or self-governing profession without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.
12The applicant alleges that she was not accommodated in the settlement discussions between the Association and employer:
- (1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability. R.S.O. 1990, c. H.19, s. 17 (1); 2001, c. 32, s. 27 (5).
Accommodation
(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
13As can be seen from the language above, section 6 of the Code prohibits discrimination in trade union membership on the basis of disability. The questions that arise from the facts before me include whether the applicant was a person with a disability who experienced differential treatment linked to that disability. The differential treatment can be direct or indirect (see s. 24 of the Code). In this case the allegation is that a factor in the decision the respondents took to withdraw from the grievance was the fact that the applicant was a person with a disability. The applicant also alleges that she was mistreated and treated in a discriminatory way by the individual respondents at membership meetings on March 8 and April 11, 2011. These allegations are also relied on to support an inference that a factor in the Association’s decision to withdraw from the grievance arbitration was her disabilities.
14Turning to a consideration of section 17 of the Code from which the obligation of a trade union to accommodate is said to arise it is not clear how these provisions are a neat fit when considered in the context of the allegation here – an alleged failure to accommodate the applicant in a settlement process – a process that the respondents had no legal obligation to include the applicant in, subject to their duty of fair representation provided for in the Labour Relations Act. However for purposes of this Decision I have assumed without deciding that the respondents in this case had an obligation to accommodate the applicant in their settlement discussions with the employer.
Evidence and Analysis
15For the reasons that follow I find that the applicant has failed in her burden to establish on a balance of probabilities that the Code has been violated by any of the respondents. As indicated the applicant claims discrimination because of disability. Although it is not disputed that the applicant may have been a person with a disability at the material times, the nature and extent of her medical and mental health issues at the time are not clear. The applicant did submit some medical documentation but despite being advised that this evidence could be given little or no weight in the absence of the authors of the documents they were not called as witnesses. Accordingly other than confirming what the applicant was saying publicly at the time – that she had a number of medical and mental health issues - I have little evidence of the applicant’s functional capacities at the material times or what kind of accommodations would have been required in order to more fully participate in the settlement discussion (one of the allegations the applicant has made).
16That said, the respondents would have known in a general sense that the applicant was unwell and somewhat erratic in her approaches with them. The applicant in her final submissions made reference to these issues going back to 2009. While strictly speaking events in this period are not issues that the respondents are required to respond to, they do form the background to the salient events between, primarily, January to April 2011. On this point the applicant makes submissions that in my view amount to new evidence not put before me in the hearing. For example the applicant submitted that the applicant’s distrust of the Association and its officials may have been a consequence of her disabilities. This may be the case but there is no evidence to that effect upon which I can rely.
17In terms of the central issue in this case I find that there is no evidence to support the conclusion that the respondents’ decision to withdraw the grievance was informed in any material way by the fact that the applicant may have been a person with a disability at the time this decision was made. The applicant has no direct evidence of discrimination but asks that I draw an inference from all of the surrounding circumstances. Central to the applicant’s case in this regard are the allegations of alleged inappropriate conduct of several of the individual respondents at membership meetings on March 8 and April 11, 2011. I am satisfied that the allegations the applicant has made about the alleged mistreatment of her at the March 8 and April 11 meeting are without foundation and cannot be relied on to support the inference she asks that I draw. Finally I find that the respondent did not fail to meet any obligation they might have had to accommodate the applicant in the settlement process. Assuming that there was such an obligation in the process, which was largely driven by the applicant’s employer, there is no evidence that the applicant was unable to participate in this process because of a disability. Although the applicant at one point indicated that she might not be able to address the settlement proposal at the time, in the end she did participate in the process and did not appear to require or seek an accommodation for disability related needs.
18As I indicated to the parties at the hearing there is not much that is in dispute in terms of the broad narrative. Those factual disputes that do exist relate primarily to what is said to have occurred at the April 11 meeting. Accordingly, credibility of the witnesses, as it often is, is a significant issue in this case.
19For the most part the witnesses appeared to be attempting to tell the truth to the best of their ability. This observation applies to the applicant as well. However, her credibility, in the sense of her ability to reliably recall and relate these events, is questionable. She repeatedly claimed to not remember saying and doing things that she clearly did and said. When asked about emails she sent to the respondents she often responded that she did not remember or that she was not in her right mind at the time. I also note that her claims in the Application were in many important respects not supported by other evidence she was relying upon. As noted above at the centre of this case is the alleged mistreatment of the applicant by the individual respondents at two meetings of the membership. Both were recorded and those recordings were produced for this hearing. Amongst the allegations made by the applicant was that the respondent Waddell constantly interrupted her during her presentation at the April 11 meeting. The audio recording indicates that this was not the case. I also note that the allegation that the respondent Waddell made an offensive hand gesture was not confirmed by any of the applicant’s witnesses. I also note that this latter allegation was not included in the Application as originally filed but was disclosed at the summary hearing along with a number of other allegations which more clearly engage the Code ground that the applicant is relying upon. As indicated above the applicant alleged at the summary hearing that the respondent Fry was heard to refer to the applicant as a loon or loony. This allegation was not supported by any evidence. It is troubling that several of these allegations which were not included in the original Application were not at all supported on the evidence. I also agree to some degree with the respondent’s submission, most particularly in relation to the April 11 meeting, that the applicant recalls how she felt about events rather than recalling the events themselves. I find for all of these reasons that I cannot rely on the applicant’s evidence unless corroborated by other evidence.
20The applicant worked as a police officer with the Orangeville Police Service. In 2007, the applicant filed a grievance alleging that she had been harassed by two of her supervisors from 2004 until 2006. The applicant’s grievance was referred to arbitration by the Association. The arbitration hearing began in June 2010 with the applicant giving some evidence. The hearing continued in October 2010 where a preliminary issue was argued. The arbitrator released her award dismissing the employer’s preliminary objection on January 5, 2011. Further arbitration dates were set in March 2011.
21In December 2010, a new executive was elected to lead the Association. The personal respondent Lindsay White was elected as President; personal respondent Doug Fry as Vice-President; and personal respondent Diane Waddell as civilian director. One of the issues in the election had been the cost of advocacy on behalf of members of the Association. It is not controversial that the organizational respondent was in financial difficulties and the Association, both before and after the events giving rise to this Application, had unsuccessfully attempted to have the membership approve a dues increase.
22In a letter dated February 22, 2011, the Association advised the applicant that it was withdrawing from any further participation in her grievance arbitration hearing but that it was not withdrawing the grievance leaving open the possibility that the applicant could assume carriage. The letter was entered into evidence and is set out below.
23The arbitration hearing was adjourned sine die on February 24, 2011 with the arbitrator noting that the Association had withdrawn and was proposing that the applicant could continue the grievance on her own. The arbitrator also noted that the applicant’s employer, the respondent in the arbitration, was taking the position that the applicant could not proceed with the arbitration on her own behalf. That issue has not been resolved and the arbitration remains adjourned.
24As indicated there were settlement discussions between the employer and the respondents. The respondent White as new President of the Association asked Association counsel if there was any possibility of settlement. On January 21, 2011 counsel wrote to the applicant to advise her that the Association would be exploring settlement with the employer.
25On February 16, 2011 the employer forwarded a settlement proposal to the respondent White who sent it on to counsel, who in turn called the applicant and left a voice message confirmed by an email, advising the applicant that there was a time sensitive offer from the employers which she wanted to discuss with the applicant in a conference call with a member of the Executive. The applicant replied the same day stating that she could not discuss the settlement over the phone and asked that the offer be faxed to her. The applicant appears to have also advised that she could be available to meet any day the following week. The applicant also advised that she was physically and mentally ill and was dismayed that the Association “dropped” the possibility of settlement on her via an email, apparently forgetting that she had been told that the Association was going to approach the respondent about the possibility of settlement. She also makes accusations of bias and conflict of interest on the part of an unidentified member of the Executive and indicates that she may harm herself.
26In response to the expressions of self-harm in the applicant’s email the respondent White informed the OPP in the applicant’s area who sent a cruiser to her home. She was apparently not there but was eventually located, apparently well and on her way to a medical appointment. The applicant testified that she felt humiliated by this event. In the final submissions she argued that the email above was further indication that she was not capable of dealing with the settlement proposal of the employer.
27In response to the substance of the applicant’s email counsel for the Association wrote to the applicant on February 17, 2011:
On February 16, 2011, I sent you an email explaining that I had received a time sensitive settlement offer from the employer regarding the above-noted grievance, and wished to have a conference call with you, and a member of the Association Executive today in order to discuss that offer. You responded by email of February 16, 2011, indicating that you were not prepared to participate in that call and were, indeed, extremely distressed.
I had previously advised you that settlement discussions were going to take place between the Association and the Police Services Board. On January 21, 2011, I wrote to you and explained that, given the extremely high cost of this litigation, and the Association's limited financial resources, I have suggested that Association canvass possibilities for the settlement of this grievance with the employer. You will be given an opportunity to review and provide your feedback on any settlement offer.
The Association is attempting to obtain the best possible settlement on your behalf. We have been provided with an offer from the employer, the details of which are set out below. This offer is only open for acceptance until the close of business on February 22, 2011. This date was selected because the employer is concerned to avoid paying the Arbitrator's cancellation fees for the upcoming dates in March, if a settlement is reached. This is a very typical and reasonable consideration, and is not personal in any way or specific to this grievance.
As you may know, settlement discussions occur on a without prejudice basis. It is important to the success of the process that the integrity of my communication with employer counsel must be protected. I am also mindful of the fact that, in the recent past, you have communicated publicly, including to the media, about the details of this case. To do so with respect to this or any other settlement offer would breach the settlement privilege that attaches to such discussions and, furthermore, I continue to be concerned about the possibility of you violating orders made by Arbitrator Cummings. For this reason, rather than forwarding you the letter I received from employer counsel, I will summarize the content of that offer.
The Orangeville Police Services Board proposes to settle the grievance on the following basis:
You will continue to received Long-Term Disability benefits in accordance with the terms and conditions of the LTD policy;
As long as you remain on LTD benefits, the employer will continue to pay your group health insurance premiums;
The employer will pay you $15,000.00 upon settlement, and then another $5,000 in one year, provided you continue to be totally disabled and in compliance with the terms of the settlement at that time;
This settlement does not involve any admission of liability by the Board or its employees;
The settlement must remain strictly confidential. (Please note I would expect any final minutes of settlement to contain more detail on this point)
Upon execution of minutes of settlement on the terms set out above, the Association would withdraw its grievance and any and all issues in respect of or related to the grievance would be considered fully and finally resolved. You would be required to sign a standard release as against the employer, indicating that you will not be commencing further legal action of any kind against them pertaining to the facts underlying the grievance.
This proposal is the employer's first offer in this round of discussions, and there may well still be room for further negotiation. However, it is important that the Association obtain your feedback about this proposal at the very earliest opportunity. I suggest that you consult with your personal advisors as soon as possible, and that we schedule an in-person meeting at your earliest convenience next week.
A representative from the Association will be present at the meeting. As I explained in my letter of January 16, 2011, the Association is the client and I take my instructions from the designated member of the Association Executive. You should feel free to bring an advisor if you wish, although the Association is not able to pay any costs associated with their attendance.
28The applicant later indicated to counsel for the Association that she was available to meet any day the following week except Friday. In an email dated February 18, 2011 counsel proposed February 22, 2011. The applicant had been previously advised that she could bring anyone she wanted to advise her and was asked that the applicant confirm whom she was bringing so that an appropriate room could be booked. I note that February 22 was the date that the employer’s offer expired.
29Later the same day after receiving the employer’s offer the applicant responded to Association counsel. She rejected the employer’s offer and indicated that given that she had provided the Association with her views the proposed meeting the following week was unnecessary. The applicant also stated that on such short notice she would have to attend alone. She stated that because she perceived that the President of the Association was “part of my harassment complaint … he is in league with my harrassers” and accordingly did not feel safe being in the same room with members of the Executive.
30The applicant’s counter proposal included lost wages, net of LTD, which for the period 2007 to 2011 the applicant calculated to be $135,000. The applicant also sought this same compensation until 2022 and an admission of liability on the part of the employer, amongst other monetary and other considerations.
31The applicant was advised by counsel that her counter proposal would not likely be accepted by the employer and might end the discussion. Despite this advice the applicant asked that it be forwarded on and it was.
32The counter proposal which had been drafted with the assistance of several individuals including Mr. Rutt a fellow police officer who had been involved with the applicant’s grievance as a member of the Executive or grievance committee, and a trusted colleague, was forwarded to the employer despite the applicant’s allegation to the contrary. The applicant was advised that this was the case in a letter dated February 22, 2011 from counsel for the Association. In the same letter the applicant was informed that the Association was withdrawing from the arbitration. The letter explained the reasons as follows:
On February 22, 2011, you requested that the Association deliver to the employer a settlement proposal that you have prepared in response to the employer's offer of February 16, 2011. In the Association's opinion, this is not the best course of action, given that your proposed settlement involves the employer acknowledging liability for all the wrongdoing you allege, and would require them to compensate you for all claimed losses stemming from your allegations. Notwithstanding the fact that the Association does not believe that it is a reasonable counter-offer, and is likely to end the settlement discussions, your proposal has been forwarded to employer counsel at your request. Although the Association remains sympathetic to your circumstances, it is no longer able to pursue the above-noted grievance on your behalf. The Association has reached this conclusion for the following reasons:
As I explained to you in my letter of January 21, 2011, the Association cannot afford to continue funding the litigation of this grievance and, for this reason, intended to negotiate a settlement with the employer;
You have repeatedly indicated that you do not trust the Association to represent you with respect to this grievance. In fact, you have attempted to prevent me from communicating with the Association leadership regarding the grievance, notwithstanding the fact that I have repeatedly reminded you that the Association has carriage of the grievance and provides instruction to me on this file;
Recently, you have also made several statements which indicate that you do not trust me personally, as the Association's counsel, and that you believe that I am participating in harassing you and/or jeopardizing your health and/or that of your family members in my handling of this file;
You have been unwilling to meet with myself and the Association to discuss the settlement offer advanced by the employer on February 16, 2011;
You have continued to comment on this case to the media and on the internet, despite the Association's position that this conduct is in violation of the Arbitrator's order excluding witnesses.
33On the same day counsel for the Association wrote to the employer and advised it that the Association was withdrawing from the arbitration but not withdrawing the grievance in order to allow the applicant to continue it on her own if she wished. By this letter counsel forwarded the applicant’s counter proposal to the employer and asked that the employer leave its offer open beyond the original deadline for acceptance. If there were to be any future negotiations those must take place directly with the applicant or her representative if any. The applicant apparently heard nothing further from the employer.
34The first meeting of the membership after the Association’s decision to withdraw was on March 8, 2011. The respondent Fry reported to the membership about the decision and made a number of remarks about the applicant’s position on settlement in contrast with the legal advice that the Association had received. He also told the membership that the applicant had approached two media outlets who were conducting investigations and that she was going to sue everyone.
35The applicant was evidently and not unreasonably upset about these remarks and communicated her anger and dismay to the Executive in an April 10, 2011 email. The applicant attended at the next meeting of the membership on April 11, 2011. The allegations of inappropriate treatment she experienced are set out above. The applicant did not bring a motion to reverse the Association’s decision at that time. The material indicates that a vote of the membership was taken about 12 months later and the applicant’s request that the Association’s decision be reversed was rejected.
The Decision to withdraw from the grievance
36At the centre of this case is the applicant’s contention that the decision to withdraw was taken in whole or in part because she was a person with a disability. The preponderance of the applicant’s allegations relate in some way to the reasons given by the Association for its decision and will provide the framework for the following reasons.
37The applicant argues that the reasons given for the Association’s decision are suspect and that suspicion should give rise to the conclusion that the real reasons were in part because the applicant was a person with a disability. I do not agree.
Financial Concerns
38Taking the reasons given in order, there is no dispute that the Association was in significant financial difficulty. Despite several attempts over a number of years the membership would not approve a dues increase. Mr. White testified that the cost of litigation was an issue in the election and he was determined to attempt to bring costs under control. There is no evidence that the financial concerns were not legitimate and no evidence that this case was treated differently than others because the applicant was allegedly a person with a disability. The applicant argued that the Association could have taken a loan and Mr. May testified that he offered to loan the Association $100,000 at 15%. The Association declined the loan for a number of legitimate reasons.
Break-Down in relationship with Association, Counsel
39As regards the claim that the relationship between the applicant, the Association and its counsel had broken down, the material is replete with expressions in no uncertain terms of her view that the Association as currently constituted was in no position to properly represent her. The applicant herself indicates to the individual respondents that she did not trust them to represent her fairly in email correspondence sent on May 4, 2011. At the hearing in cross-examination the applicant’s evidence confirmed that it was likely that she had lost confidence in Association counsel by mid-February 2011.
40As indicated earlier the Association Executive was largely replaced at an election in December 2010. The applicant had concerns about alleged conflicts of interest on the part of some of the prior Executive as well, in particular a previous President of the Association, but Curtis Rutt had been dealing with her grievance for some time as either a member of the Executive or member of the Grievance Committee. The applicant had significant confidence in Mr. Rutt, however he was defeated as President in the December 2010 elections and no longer held any office in the Association.
41The applicant’s confidence in the Association did not increase with the election of the new Executive. In an email sent to Rutt and counsel for the Association on December 27, 2011 the applicant expressed her lack of confidence in the following terms:
ANYWAY, JUST BEFORE XMAS, I RAN INTO LAURA, MY FRIEND; I WAS INTRODUCED BY ROY.
SHE USED TO BE A COURT CLERK; THEN WENT TO WORK IN A LAWYER FIRM; AND IS NOW A CRIMINAL LAWYER IN ORANGEVILLE.
WHAT IF I HAD HER DRAFT UP A LEGAL DOCUMENT; STATING THAT I GIVE NO ONE PERMISSION TO SEE MY FILES(EVEN THOUGH KATIE NOT MY LAWYER- THEY ARE MY FILES); EXCEPT YOURSELF, KATIE, YOUR DEB; AND MY DAD.
MY REASONS YOU KNOW; ARE CONFLICT OF INTEREST; HE IS GOOD BUDDIES WITH ALL THE DEFENDANTS AND HAS HIS HEAD PERMANTLY UP THEIR ARSES. ALSO, DUE TO THIS, HE MAY BE A SUSPECT IN THE BULLET PLACED IN MY MAILBOX; WHICH I CONSTRUE(AND MOM, CERTAINLY SINCE IT KILLED HER) AS A DEATH THREAT. THERE WAS INTENT; MOST DEFINETLY; CAN NOT ARGUE THAT IN A COURT OF LAW.
I NEED TO GET AN INJUNCTION BEFORE THEY CONTACT KATIE; AND THEY START GOING THROUGH EVERYTHING.
THERE IS SENSITIVE InFORMATION; THAT I WILL SUE THEIR ASSES OFF; IF I FIND OUT THAT THEY HAVE READ JUST ONE SINGLE PAGE OF AN OF MY DOCUMENTS.
I INTEND TO SEND A LETTER SOON AS I CAN TO WHO EVEER I SEND IT TO ; ADVISES THE EXECUTIVE OF THIS LEGAL DOCUMENT AND MY INTENT TO PROTECT MYSELF.
OK, I AM GOING TO CALL LAURA TOMORROW; FAILING THAT, I WILL CONTACT OUR FAMILY LAWYER, KEN TORRENS IN ERIN. TIME IS OF THE ESSENCE. ALSO, LINDSAY WHITE WAS INSTRUMENTAL IN THAT PRISONERS DEATH.
THESE PEOPLE ARE CORRUPT AND DANGEROUS. IF HAVE SUFFERED FAR TOO MUCH; AS HAVE YOU; TO HAVE THAT BUNCH OF ARSES; GIVE VALUABLE INFORMATION TO THE OTHER SIDE.
THANKS SEAN
42On December 28, 2010 the applicant sent the following email directly to the respondent White as well as Rutt, counsel for the Association and another member of the Executive.
I WILL GET TO THE POINT.
I WANT THIS EMAIL GIVEN(BY WHATEVER MEANS) TO THE REST OF THE EXECUTIVE. PLEASE READ AT THE NEXT ASSOCIATION MEETING.
I DO NOT WANT ANYTHING TO DO WITH YOU. THAT IS MY PEROGATIVE.
MY REASONS; CONFLICT OF INTEREST; YOU EITHER HAVE TO BE NON-INTELLIGENT OR NAIVE, TO KNOW THAT YOUR FRIENDS INCLUDE THE CHIEF, INSPECTOR, MALONEY AND DRYDEN.
SECONDLY; YOU HAVE BEEN BLATANTLY COLD AND NON RESPONSIVE TOWARDS ME AT EVERY ASSOCIATION MEETING I HAVE ATTENDED; MAKING IT VERY OBVIOUS TO ME AND OTHERS; CLEARLY WHERE YOUR LOYAL TIES LIE.
FURTHER; YOU ARE A POSSIBLE SUSPECT IN THE BULLET INCIDENT; AS ARE THE REST OF THE DEFENDANTS, AND I AM FLAT OUT SCARED OF YOU AND THE REST OF THE DEFENDANTS. MY MOTHER WAS SO SCARED; THAT SHE CRIED EVERY TIME I WENT OUT AND EVERY NIGHT; HOPING AND PRAYING THAT I WOULD RETURN HOME SAFE AND SOUND. THAT BULLET KILLED HER. ANY OFFICER FROM ANY OTHER DEPARTMENT OTHER THAN ORANGEVILLE; KNOWS THE MEANING; KNOWS THAT ANY OFFICER RECEIVING A BULLET IN THEIR MAILBOX IS A DEATH THREAT; ONE THAT HAS NOT BEEN TAKEN SERIOUSLY BY ORANGEVILLE OR THE LOCAL O.P.P
I DO NOT WANT TO SEE YOU; I DON'T WANT TO BE NEAR YOU; I DON'T WANT TO DEAL WITH YOU; I DON'T WANT YOU AT ANY OF MY LAWYER MEETINGS; I DO NOT WANT YOU OR ANY OTHER MEMBER OF THE EXECUTIVE TO HAVE ANY ACCESS TO ANY OF MY FILES AT KATIE ROWEN'S OFFICE.(RYAN KETT IS AN ACCEPTION; BUT I WILL NOT ALLOW YOU TO USE HIM TO ACCESS MY FILES, SO :
THE ONLY EXCEPTION IS SGT CURTIS RUTT.
I INTEND TO TAKE LEGAL ACTION; TO BLOCK ANY ATTEMPT BY YOU OR ANY EXECUTIVE MEMBER OR ANY MEMBER FROM ACCESSING MY FILES.
YOU WILL BE RECEIVING A LETTER FROM A LAWYER TO THIS AFFECT.
IF I FIND OUT THAT YOU HAVE IGNORED MY REQUEST, PUT ME IN JEOPARDY AND INTERFERED WITH MY GRIEVANCE AND CAUSED ME MORE SUFFERING AND PAIN AND ACCESSING MY FILE; I WILL NOT HESITATE IN SUEING THE ASSOCIATION.
THERE IS ALOT HAPPENING AT THE STATION; AND SGT RUTT IS BEING HARASSED; THE MEMBERS OF THE ASSOCIATION; HAVE SHOWN TO BE DELIGENT IN CHOOSING A PROPER PRESIDENT ,ONE WHOM HAS INTEGRITY ,ETHICS COMPETENCY,LOYALTY, HONOUR;AND KNOWLEDGE, SGT UTTWOULD BE AN EXCEPTIONAL PRESIDENT; BUT THE ASSOCIATIONS HATRED OF SGT RUTT IS BLATANTLY OBVIOUS. THE ASSOCIATION HAS DEMONSTRATED TO ME; THAT BY VOTING AGAINST SGT RUTT;
THEY ARE VOTING AGAINST ME. ALSO, THE ASSOCIATION HAS KNOWLEDGE THAT YOU ARE PART OF AN SUI INVESTIGATION; HOW CAN U BE ELIGABLE IS BEYOND MY COMPREHENSION. PLEASE PASS THIS ON TO THE PROPER PERSONNAL; AND DO NOT MAKE THIS INTO A PERSONNAL VANDETTA; IF I AM ADVERSL Y AFFECTED BT ANY MALICIOUSNESS BY YOU OR ANY OTHER MEMBER OF THE ASSOCIATION; BECAUSE I AM EXERCISING MY RIGHT TO FREE SPEECH; I WILL BE FORCED; TO LODGE ANOTHER GRIEVANCE TO PROTECT MYSELF.
43The applicant argued that the concern about her “files” expressed in these and other communications with the Association and their counsel was confined only to her medical files. This claim is not supported by the applicant’s evidence; although concerns with privacy of her medical information might have been uppermost in her mind, the applicant’s evidence was clear that she did not want the Executive to have access to any of the grievance file related to her case. It is also clear that the applicant’s concerns with the Executive were not simply that they might have access to her files whatever they might contain but that she had no confidence in them, and the President in particular, and felt that some or all them were ‘corrupt’, to use her word, and in serious conflicts of interest. It is clear from her evidence that the applicant wanted Mr. Rutt to have carriage of the grievance. Whether any of the applicant’s allegations were true is not for me to determine, but based on the evidence before me the respondents’ belief that the applicant lacked any confidence in their ability to represent her in the arbitration was entirely reasonable.
44As previously discussed the applicant argued in submissions that the respondent should have understood that her mistrust of them was a function of her mental illness. As indicated there is no medical evidence to substantiate this claim and I am not prepared to assume that this is or was the case. I am also not prepared to presume that the individual respondents should have understood this to be the case notwithstanding the general understanding, by some of them at least, that the applicant was likely unwell.
Unwillingness to meet in context of settlement discussions
45The applicant argues that she was not unwilling to meet with the Association but she was unable to do so for disability related reasons and that the respondents’ reliance on this factor indicates that their decision was tainted. The applicant also argues that the respondents failed to accommodate the applicant in this process. I do not agree on either point.
46I find that the respondents’ interpretation of the applicant’s conduct was not unreasonable. She did not want to speak about the offer on the phone and indicated that she could not deal with the matter on the phone but could meet face to face if she had the “appropriate” people with her. She asked that the offer be faxed to her. The offer was provided to her under cover of a letter dated February 17, 2011. On February 18 the applicant responded to the offer after consulting, apparently, with a number of advisors including Mr. Rutt and suggested that in the circumstances a face to face meeting would not be necessary. It is clear that the applicant did not want to meet with the respondents on this issue at the time and time was of the essence because the employer had placed a time limit on acceptance. In the circumstances, given the evident lack of confidence the applicant apparently had with the respondents, there would have been some legitimate level of concern that she did not seem willing to engage with them about the settlement.
47In terms of an alleged failure to accommodate the applicant, although strictly speaking not obligated to consult with her about the employer’s offer, the respondents wished to do so and made some attempts to discuss the issue with her.
48I appreciate that the applicant indicated that she could not discuss the matter over the phone and would not meet with anyone from the Association except with various advisors present. But the applicant did not request further accommodation instead she engaged the process in a manner she felt appropriate at the time, drafting a counter proposal and requesting that it be forwarded to the employer. The respondents acceded to the applicant’s requests. In my view the respondents’ conduct was appropriate in all of the circumstances. I agree with the respondents that it was not a failure in their obligations to comply with the applicant’s requests.
49To the extent that the applicant may have felt pressured because of the time sensitive nature of the offer, that condition was imposed by the employer. Moreover there is no evidence that the applicant ever asked for more time and in fact she responded to the offer within a day of having received it from counsel. I note that the respondents through their counsel asked that the employer extend the time for the applicant to accept the offer that was on the table.
50The applicant also argued that the respondents, because of the applicant’s evident illness, should have taken further steps to explain to the applicant that her offer was unreasonable and that it should not be delivered to the employer. While it may have been helpful to do so, I am not satisfied that the respondents were legally obligated to do so in the circumstances. I also find, as indicated above, that in these circumstances it was not inappropriate for the respondents to comply with the applicant’s requests that her offer be forwarded to the employer. In the same vein the applicant argued that she was not of sound mind and lacked capacity to enter into settlement discussions. There is no medical evidence to support either proposition and what little medical evidence there is indicates otherwise. The applicant relied on a medical note from a Dr. Badoe which advises counsel for the Association that in his view the applicant was capable of participating in the grievance process. The applicant’s claim that she was incompetent at the time is also contradicted by her own evidence. Although she was not happy with the employer’s offer she was able to prepare a counter offer in consultation with a number of individuals including Mr. Rutt. She now appears to not entirely understand what it was she was asking for in terms of the monetary claims, however I am not prepared to infer from her current understanding what her mental competence was two years ago.
51I also note again that the individual respondents were aware in a very general sense that the applicant had various medical concerns but were not privy to any specific information about any of her disabilities and did not have access to any of her medical information. They did not know and were not advised that she could not participate in the process, to the contrary as indicated above, when concerns had been raised months prior the Association had been told that she was competent.
Applicant contact with media
52Finally the applicant argued that the respondents’ reliance on their concern that she was communicating in various ways in potential contravention of the exclusion order of the arbitrator was unreasonable. She testified at the hearing that when contacted by the Orangeville newspaper in January 2011 she only confirmed what they already knew. Whether the applicant’s claim in this regard is accurate or not, there is no doubt that the Association had expressed to the applicant on a number of occasions their concerns about her inappropriate communications about the arbitration and there is no reason to believe, and no evidence, to support the conclusion that this concern was not in good faith despite the applicant’s evidence that after being told again in January 2011 she had no further contact with the media.
Alleged mistreatment of the applicant at membership meetings
53The applicant also alleges that she was mistreated by the individual respondents, all members of the Executive, at two membership meetings in March and April 2011. The applicant argues that some of these comments are discriminatory and she relies on them to support an inference that a factor in the decision to withdraw from the grievance was that she was a person with a disability.
54As indicated above the applicant alleges that at the March 8, 2011 meeting the respondent Fry lied about what she was seeking by way of a settlement and also lied when he claimed that the applicant had approached two media outlets about her case and that ongoing media investigations were underway. The applicant alleges that these “lies” were intended to undermine the applicant and to build support for the respondents’ decision to withdraw from the grievance arbitration.
55The applicant denies contacting the two media outlets identified and there is no evidence that she did so. Mr. Fry testified that he was told by P. C. that the applicant had been in touch with the media and believed it to be true. Mr. Fry also testified that he was told by the applicant herself that she was looking for a million dollars to settle the case, over breakfast together sometime in the year prior to these events. He also testified that he understood the applicant’s counter proposal to be for an amount approaching $800,000. He also disclosed to the membership that the applicant wanted an admission of liability by the employer. This was entirely accurate.
56I accept Fry’s evidence that he believed that what he was conveying to the membership was true. I also note that he repeated his claim that the applicant had told him she was looking for, amongst other things, $1 million at the April 11 meeting and that while the applicant’s counter proposal was significantly less than that it was not close to what their legal advice indicated was reasonable. A rough calculation based on the document the applicant sent to the respondents suggests that all in the applicant was looking for upwards of $500,000 in lost wages alone.
57As such there is really no basis to conclude that these remarks were discriminatory or made for a discriminatory purpose. The applicant’s contention that he made these remarks to undermine her position and support the respondents’ decision is understandable and in some sense it is an accurate characterization of what he was attempting to do. Fry would have reason to believe that the applicant would challenge the Executive’s decision and would have support in the membership including that of Rutt, a recently defeated President of the Association. He was making a case and framed the issues in a way which supported the Executive’s decision and undermined that of the applicant, but although he clearly put a significant “spin” on the applicant’s position, in substance he gave a not unreasonably distorted version of what she was seeking and I am unable to infer that that he did so to support a decision tainted by discriminatory considerations or that his remarks are an indication of a tainted decision. I also take the applicant’s point that some of the membership might have come to the conclusion that the applicant was being unreasonable in her demands. Without commenting on whether this was an accurate view of her position, it was the respondents’ position at the time.
58As regards the applicant’s allegations of mistreatment by members of the Executive at the April 11 meeting I find that her claims are largely unfounded. None of the applicant’s witnesses could confirm the allegedly discriminatory facial gesture – a smirk by Waddell. Similarly the applicant’s allegation that the respondent Waddell made a circular motion with her index finger over her temple was not confirmed by any of the several witnesses she called for this purpose. One of the applicant’s witnesses testified that Waddell appeared to smile in a sarcastic way but agreed that this was only an impression. Waddell testified and denied making any rude or offensive gestures. She testified that she did not smirk or smile because there was nothing amusing about what was being said.
59I have also reviewed the audio recording of the meeting. It does not support the allegations made by the applicant. As indicated above the applicant alleges that the respondent Waddell constantly interrupted her during her presentation at the April 11 meeting. She also alleges that Fry argued with her during the course of her presentation. Neither allegation is substantiated by the audio recording.
60The audio recording reveals the following. Before the applicant begins her formal presentation she and Fry engaged in a discussion about what she was seeking by way of settlement. Fry repeats his assertion that she told him that she was seeking amongst other things $1 million. A female member of the Executive states that there needs to be an agenda item before the applicant could speak. The applicant had not sought to be included on the agenda beforehand. There is some discussion amongst the membership and the respondent White who is Chair of the meeting allows the applicant to proceed but advises her that she is limited to five minutes. Waddell does interject during the applicant’s presentation when the applicant appears to suggest that Waddell was somehow responsible for the applicant’s mother’s passing away. Otherwise the applicant spoke uninterrupted for a little more than five minutes when it appeared that she had finished her remarks. Her remarks were accusatory and echo some of the allegations that the applicant had made about respondents in email correspondence above. White then begins to respond to her remarks by explaining the basis for the respondents’ decision to withdraw the grievance.
61The applicant alleged that the respondent White yelled at her. This is also not the case although it is clear that he raised his voice to be heard over the applicant who had begun speaking over him after he had begun his responding remarks. It was at this point that he raised his voice to be heard and reminded the applicant that he had listened to her for her five minutes and he was responding to her.
62The applicant alleges that the five minute rule has never been enforced prior to this incident. The evidence with respect to this issue is limited and somewhat contradictory. White testified that he was a new President and this was the first time that he had to deal with an issue of a member questioning an Executive decision to withdraw from a grievance. He testified that he chose to invoke the rule which is provided for in the Association’s constitution because he wanted to ensure that everyone had an opportunity to address the issue and because of the applicant’s issue or the preceding issues on the agenda there was an unusually healthy attendance at the meeting. The other witnesses generally agreed that they had never seen the rule invoked but none had been in attendance where a challenge to an Association decision appeared to be underway. In any event the applicant after arguing and interrupting White in his response left the meeting and did not ask for further time to address the issue. I am not able to conclude that the invoking of the five minute rule was in any way discriminatory in the circumstances.
63The applicant also alleged that during his remarks at this meeting White made some remarks about her ability to give evidence because of her disabilities. The applicant’s allegations about what exactly White is alleged to have said changed somewhat over time and she was entirely unclear about this at the hearing. None of the other witnesses could confirm the applicant’s evidence about what White is alleged to have said.
64Mr. White believes that he said something to the effect that he had concerns about the applicant being able to give evidence at the arbitration hearing without getting upset. He testified, and this is confirmed by the audio recording, that the remark came to him in the moment as the applicant was clearly and audibly upset. What exactly was said is not entirely clear as the applicant begins speaking while White is making the remark and only part of White’s remark can be heard. Having reviewed this portion of the recording repeatedly I accept the respondents’ characterization of the remark as being an expression of concern that the applicant might have difficulty in giving evidence because she might become upset. I appreciate why the applicant might perceive this remark in the manner that she has but I am not prepared to draw the inference that it was in fact demeaning or belittling in all of the circumstances or, more importantly, to conclude that this one remark supports her central allegation that the decision to withdraw from the grievance was made for discriminatory reasons.
65White testified that any concerns about the applicant’s ability to give evidence or withstand cross-examination were not considered when the decision to withdraw from the grievance was made. There is no evidence to contradict him on this point.
66I do not accept the applicant’s contention that she was mistreated by any of the respondents. As discussed, the applicant’s fresh allegations raised at the summary hearing were not supported by any reliable evidence. The audio recording does not support her allegations of disrespectful or abusive treatment. It was a somewhat heated exchange with the heat largely generated by the applicant. The respondents, to the extent that the audio recording assists, listened to her remarks. White, when he responded and was interrupted by the applicant, did not treat the applicant with kid gloves but his remarks and the tenor of them were not inappropriate in all of the circumstances.
Other issues
67The applicant lead evidence of her requests or demands of the Association that Mr. Rutt remain involved in her grievance. The applicant’s submissions appear to ignore that the evidence was that the applicant wanted Mr. Rutt to have carriage of the grievance and that the respondents have “nothing to do with her” or her grievance. In any event the point was made clear from several communications from counsel for the respondents that this is what the respondents understood the applicant was asking for. She made no attempt to clarify her position. The applicant argued that the respondent unreasonably denied her request. In her submissions the applicant appeared to argue that the respondents’ refusal to accede to her requests amounted to a failure to accommodate her disabilities. This was not an issue raised in the Application however I have considered it and I find that there is no basis to the claim. There is no evidence that the applicant required that Mr. Rutt remain the “client” for purposes of instructing counsel with respect to the arbitration to accommodate any alleged disability. There is no medical evidence to support this conclusion and no substantial evidence from the applicant that her desire to have Mr. Rutt continue to represent her was related to any disability related need as opposed to her view, right or wrongly, that the Executive of the Association was in the camp of her alleged harassers.
68Otherwise the respondents’ position on the applicant’s request was entirely reasonable. Mr. White when asked about this issue testified that he felt it was his obligation as President and the candidate who had defeated Mr. Rutt in the recent election to take charge of the Association’s affairs including the various pieces of litigation that were ongoing. It is also clear from the evidence, including several emails from counsel for the Association, that the applicant was entitled to take advice from anyone she chose and could bring advisors with her to meetings with counsel about her grievance and the settlement proposal. This offer clearly included the possibility that Mr. Rutt could assist the applicant, as he did with her counter proposal in response to the employer’s settlement proposal.
69The applicant also argued that the respondent ought to have allowed the applicant to utilize Mr. Rutt as a liaison person with the Executive and that their failure to allow this was a failure to accommodate a disability. I note again that this is not an allegation that was made in the Application nor was it ever raised in the Tribunal’s process as an issue to be addressed although the applicant was given several opportunities to clarify the nature of her claims. I also note again that there is no evidence to support a disability related need for this kind of accommodation. On this point, as with many others of the applicant’s arguments, she claims that this might have helped in her communications with the Association and smoothed over the difficulties in their relationship. This may or may not have been the case but this is a different question than the one I have to determine, which is whether the respondents were legally obligated to provide such an accommodation because of a disability related need. In the circumstances here they were not. Again I repeat that it is also clear from the evidence that the applicant was offered the possibility of retaining her own counsel and have anyone attend with her in any discussions she had with the Association. It seems to me that on the facts of this case this form of accommodation was in fact extended to the applicant.
Conclusion
70This is a most unfortunate case. The applicant is in clear distress, whether as a consequence of the issues raised in her grievance or for other reasons. However, in the end there is really no evidence that the respondents’ decision to withdraw from the grievance was informed in any way by the fact that she may have been a person with a disability. There is no direct evidence that this was the case and the circumstances the applicant argued would support the inference were almost entirely unsupported on the evidence. In particular the alleged mistreatment of the applicant by the individual respondents was not supported on the evidence. Finally I have found that even if an obligation to accommodate the applicant during the settlement discussions between employer and the Association might have existed, the applicant did not ultimately seek accommodation and on the face of it appeared able to engage in the process. To the extent that she felt pressured to make a decision because of the time sensitive nature of the offer, this condition was imposed by the employer and not the respondent
71For all of these reasons the Application is dismissed.
Dated at Toronto, this 26th day of July, 2013.
“Signed by”
David Muir
Vice-chair