Cann v. Slovenian Linden Foundation, 2013 HRTO 143

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jonathan Cann on behalf of Lyubov Yakymova Applicant

-and-

Slovenian Linden Foundation and Service Employees International Union Local 1 Canada Respondents

DECISION

Adjudicator: Douglas Sanderson Date: January 28, 2013 Citation: 2013 HRTO 143 Indexed as: Cann v. Slovenian Linden Foundation

APPEARANCES

Jonathan Cann on behalf of Lyubov Yakymova, Applicant Nadiya Yakymova, Representative

Slovenian Linden Foundation, Respondent Jacinthe Boudreau, Counsel

Service Employees International Union Local 1 Canada, Respondent Helen Nowak, Counsel

1This is an Application filed on August 26, 2011 under section 34(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The applicant alleges discrimination in employment because of place of origin, disability, family status, age and reprisal.

BACKGROUND

2On or about March 7, 2011, the respondent Slovenian Linden Foundation ("SLF") terminated Lyubov Yakymova's ("the claimant") employment for job abandonment. The respondent Service Employees International Union, Local 1 Canada ("the Union") intervened on the complainant's behalf and SLF agreed to reinstate her. The claimant, however, did not wish to return to work for SLF and instead directed the Union to pursue a grievance seeking monetary compensation. The Union eventually declined to pursue such a grievance and withdrew it.

3On May 30, 2012, the Tribunal issued Interim Decision 2012 HRTO 1075, in which it dismissed the Application in part and allowed an amendment to the Application to add a reprisal allegation. The remaining allegations were that SLF denied the applicant vacation, but granted it to Slovenian employees; that the Union withdrew the claimant's grievance, did not allow the applicant to participate in its processes, and did not provide an interpreter for the claimant; and, the respondents retaliated against the claimant by delaying her access to her pension funds (the new reprisal allegation). Also on May 30, 2012, the Tribunal issued a Case Assessment Direction in which it ordered a Summary Hearing to determine whether the remaining allegations, including the new reprisal allegation, should be dismissed because they have no reasonable prospect of success. The hearing was held on September 12, 2012 by teleconference.

4On September 10, 2012 the applicant filed a letter indicating that he would be unable to participate in the conference call. He stated, however that Nadiya Yakymova would represent the claimant on the call. At the outset of the call I canvassed with the parties whether it would be appropriate to proceed in the circumstances. The respondents submitted that the applicant did not seek an adjournment and submitted the matter should proceed as scheduled. Ms. Yakymova indicated that she was prepared to proceed based on the material already filed and would not make further oral submissions. Accordingly, the summary hearing proceeded and the respondents presented their oral submissions.

REASONABLE PROSPECT OF SUCCESS

5The summary hearing process is described in Rule 19A of the Tribunal's Rules of Procedure. In Dabic v. Windsor Police Service, 2010 HRTO 1994, 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.

SUBMISSIONS

The Applicant

6As noted, the applicant relied on the written material already filed with the Tribunal. On August 20, 2012, the applicant filed a schedule "A", which was the schedule "A", or narrative, submitted with the Application, a schedule "B", which presented arguments regarding the application of section 45.1 of the Code, and a schedule "H", which included case law (all but one case addressing section 45.1) as well as several documents, including correspondence between the parties.

7The applicant's schedule "A" contains the allegations against the Union. The applicant alleged that the Union threatened to withdraw the claimant's grievance to force her to return to work before she recovered from illness. The Union eventually did withdraw the grievance filed on her behalf, which the applicant alleges was a reprisal. The applicant alleged that the Union refused to allow him to participate in the discussions between the Union and the claimant. The applicant submitted that he offered to facilitate communication between the claimant and Union because the claimant's command of English is weak. The Union did not provide a Russian or Ukrainian translator.

8The Tribunal allowed the applicant's request to amend the Application to add reprisal allegations against SLF and the Union regarding the claimant's pension. The request contains the only submissions from the applicant on this issue. The applicant stated that the claimant and her family sent e-mail messages on several occasions to SLF and the Union in order to access her pension funds, starting on or about June 29, 2011. The applicant alleges that only after he threatened legal action on or about January 30, 2012 did SLF and the Union take the necessary steps to allow the claimant access to her pension. The applicant learned that SLF put its own address, rather than the claimant's home address, on correspondence to the pension plan. The result was that the pension plan sent the forms needed to access her pension to SLF, which the applicant alleges was deliberate. The applicant submitted that the respondents did not follow up or provide the claimant solutions to her pension inquiries as a deliberate reprisal for her asserting her human rights and for filing this Application.

9The applicant's response to question A13 on the Application Form "Explain why you believe you were harassed or discriminated against because of your… place of origin..." contains the applicant's only submissions regarding the alleged denial of vacation. The applicant states that Slovenian staff were granted two weeks of vacation to travel to Slovenia, but the claimant was denied two weeks off to travel to California for no operational reason.

SLF

10SLF noted that only two allegations remained against it: the denial of vacation and reprisal regarding the claimant's attempts to access her pension.

11SLF submitted that there is no evidence supporting the applicant's allegation that SLF improperly denied the claimant's vacation request. SLF submitted that the only information about the claimant's vacation was set out at A13 in the original Application and amounts to an assertion that she was denied vacation when someone of a different background was granted it. SLF noted that the claimant never raised this issue in her grievances filed by the Union and there is no indication, based on the materials the Union filed, that this issue was ever discussed. SLF submitted that the Tribunal's jurisprudence is clear that an application cannot be based on bald assertions and speculation.

12In any event, SLF submitted that the claimant received the vacation she requested. SLF explained that the vacation schedule is set in April and the applicant requested, and was granted, three consecutive weeks in September and October 2010 and one week in December 2010. The claimant did not accrue enough of vacation pay to be paid for all of her vacation and therefore cancelled her vacation in December. SLF indicated that its evidence would be that the claimant did in fact travel to California on her vacation.

13SLF submitted that the delays incurred regarding the claimant's pension were the result of miscommunication and administrative errors, not any intention to retaliate against the claimant. SLF submitted that it is a not-for-profit organization and has limited administrative resources. As a result, some managers perform several different functions. SLF also noted that the claimant was the first person to retire under the pension plan and management was not sure of the processes involved.

14SLF submitted that to establish a reprisal the applicant must prove an intention to retaliate against the claimant because she tried to enforce her human rights. SLF submitted that it did not receive the Application alleging violations of the claimant's human rights until October 4, 2011; therefore, SLF submitted that the events prior to that date are irrelevant.

15In any event, SLF submitted that the first communication regarding the claimant's pension was between the claimant's daughter and the Union by e-mail message dated June 29, 2011. SLF noted that the message was sent to Union personnel, seeking contact information for the pension plan. SLF's personnel were copied on the message, but no action was requested of them; therefore, they assumed that the Union dealt with the matter and did not get involved.

16On October 4, 2011, the claimant's daughter contacted SLF by e-mail message and requested SLF to contact the pension plan to send the necessary forms to the claimant. SLF submitted that it sent a facsimile to the pension plan the following day, October 5, 2011, advising of the claimant's termination of employment. Unfortunately, the person sending the document filled out the form using SLF's address instead of the claimant's. The pension plan sent a letter to the claimant the next day, October 6, 2011, which SLF received because of the clerical error. However, SLF assumed the pension plan had copied SLF and put it in the claimant's personnel file.

17On January 27, 2012, the applicant sent SLF and the Union an e-mail message in which he pointed out that the claimant was trying to access her pension funds, but the respondents had not taken the necessary steps to assist her. The applicant threatened further legal action if the matter was not resolved promptly. SLF submitted that it sent a letter to the pension plan on January 30, 2012 to confirm the claimant's correct address. Also on January 30, 2012, counsel for SLF sent a letter to the applicant explaining that the delay was caused by a clerical error and advising of the steps taken to rectify it. Counsel apologized for the delay caused by the error on behalf of SLF and its staff.

18SLF submitted that it acted immediately once the claimant asked for assistance regarding her pension entitlements. Unfortunately SLF made a clerical error, but, SLF immediately corrected the error once the applicant made SLF aware of it. In that regard, SLF noted that the claimant and applicant contributed to the delay by not contacting SLF promptly. In any event, SLF submitted that its actions do not support the conclusion that it retaliated against the claimant.

The Union

19The Union submitted that it was not clear on which prohibited grounds of discrimination the applicant alleged the Union discriminated against the claimant. The Union submitted that it has a duty to take action if the collective agreement is breached. The Union submitted that SLF terminated the claimant's employment, pursuant to the "deemed abandonment" clause in the collective agreement because she had not provided medical information to support her absence. The Union's view was that SLF had clearly attempted to communicate the need for more medical information, but the claimant never provided it. The Union met with the claimant who did not wish to be reinstated and took the position that reinstatement would amount to discrimination against her. Instead, the claimant wanted financial compensation rather than reinstatement. The Union did not agree with this approach and considered it to amount to extortion in the circumstances. Nonetheless, the Union filed a grievance on behalf of the claimant seeking financial compensation. The Union submitted that it hoped to convince the claimant that she would not receive any money and that she should accept reinstatement. The Union spoke to SLF who agreed to reinstate the claimant if she provided medical information to support her absence, but she refused.

20The Union submitted that it has a duty to assess grievances and pursue only those with merit. The Union submitted that it was difficult to agree that SLF discriminated against the claimant. The Union therefore withdrew the grievance because it did not expect it to succeed. The Union submitted that it offered the claimant an appeal, and does not believe the applicant attended. The Union submitted that the applicant was trying to "call the shots", i.e., to direct the Union regarding how to proceed in the grievance process. The Union submitted that the applicant stated that he wanted to attend the meeting to interpret for the claimant. However, the Union noted that the applicant speaks neither Russian nor Ukrainian. The Union submitted that it was not obliged to deal with the claimant through a representative, but did try to arrange an interpreter. The Union submitted that the claimant and applicant provided no new information that could have caused the Union to change its decision regarding the claimant's grievance.

21Regarding the claimant's pension, the Union submitted that the e-mail exchange shows that it responded promptly to the e-mail it received from the claimant's daughter and provided the contact information for the pension plan. The Union submitted that there was no evidence that the Union committed a reprisal or threatened the claimant because she pursued her human rights.

ANALYSIS AND DECISION

22Section 5 of the Code states as follows:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

23In the Application, the applicant asserts that SLF denied the claimant's vacation request, but approved the requests of other employees who are Slovenian. The applicant provided no other evidence that would link the alleged denial to the claimant's place of origin. The mere fact that one employee's vacation request was approved and another employee's request was denied is not proof, in itself, that their respective places of origin explains the different outcomes. An applicant must provide evidence linking alleged differential treatment to a prohibited ground of discrimination. Bare assertions and speculation are not sufficient. See Makhi v. Ontario Human Rights Commission et al, 2011 HRTO 1971 and Ramlal v. Metro Ontario Inc., 2012 HRTO 790. Other than the statement set out in the Application, the applicant provided no evidence linking the alleged denial of the claimant's vacation request to a prohibited ground of discrimination. At the summary hearing stage, the Tribunal does not weigh evidence or determine the merits of the matter. Having said that, however, I note that SLF pointed to evidence that the claimant received all the vacation she requested. I find the allegation that SLF discriminated against the claimant by refusing her vacation request has no reasonable prospect of success.

24Section 8 of the Code provides:

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.

The prohibition against reprisal is, of course, extremely important because it protects individuals from intimidation and retaliation that might deter them from claiming and enforcing their rights under the Code. A reprisal claim is distinct from allegations of discrimination because an applicant must establish the respondent intended to punish or retaliate against an applicant because he or she asserted his or her Code rights. Accordingly to proceed beyond a summary hearing, there must be a reasonable basis to believe the applicant could establish such an intention and a link to the respondent's alleged actions. The Tribunal set out the elements of a successful reprisal application in Noble v. York University, 2010 HRTO 878 at paragraphs 33 and 34, as follows:

[33] Thus, in a complaint or application alleging reprisal, the following elements must be established:

a. An action taken against, or threat made to, the complainant;

b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and

c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

[34] In addition, the following principles are relevant:

a. There is no strict requirement that the complainant has filed a complaint or application under the Code, and

b. There is no requirement that the Tribunal find the respondent did in fact violate the complainant's substantive rights to be free from discrimination.

25The prohibition against reprisals is not limited to circumstances where a person has filed an application to the Tribunal. Rather it extends to any attempt to enforce one's rights under the Code, including union grievances. The grievance the Union filed on the claimant's behalf, dated March 15, 2011, included allegations that SLF violated the Code by dismissing the applicant while she was on sick leave. Consequently, I do not agree with SLF that the events prior to October 4, 2011, when it received the Application, are irrelevant to assessing whether SLF violated section 8.

26Having said that, there is no evidence that the claimant asked SLF for assistance regarding her pension prior to October 4, 2011. The e-mail exchange, filed by all parties, indicates that the claimant's daughter asked the Union for the pension plan's contact information on June 29, 2011 and the Union promptly provided the information by reply e-mail the same day.

27The e-mail records show that the claimant's daughter contacted SLF on October 4, 2011 for assistance with the claimant's pension. SLF produced documents indicating that it sent the necessary documentation to the pension plan the next day but used the wrong address for the applicant. The applicant submitted that using the wrong address was a deliberate reprisal. In my view, this amounts to a bare assertion. The mere fact that the claimant met with delays (for which she would also appear to bear some responsibility) in processing her pension after she asserted her rights under the Code is not enough to establish reprisal. There must be evidence establishing a threat or that an action was intended as retaliation for asserting Code rights. The applicant provided neither in this case. Rather, the only available evidence indicates that both respondents acted promptly to assist the claimant when asked and that SLF made a clerical error. In these circumstances, the applicant has no reasonable prospect of success in establishing that SLF and the Union committed a reprisal regarding the claimant's pension.

The Union

28Applications against trade unions are usually made pursuant to section 6 of the Code, which prohibits discrimination with respect to membership in vocational associations. The allegations against the Union in the Application all relate to its status as the trade union representing the claimant. On the Application form, however, the applicant indicated that the Application was only with respect to employment.

29Regardless, the Application has no reasonable prospect of success as against the Union. Trade unions are required to make decisions regarding the representation of their members, including whether to pursue grievances. The Tribunal has stated that the mere fact that a trade union chooses not to pursue a particular grievance is not proof, in itself, of a violation of the Code, since a trade union may have any number of non-discriminatory reasons for not pursuing a grievance. See: Traversy v. Mississauga Professional Firefighters' Association, 2009 HRTO 996. In this case, the Union secured the claimant's reinstatement to employment and did not pursue a grievance seeking only financial compensation for the claimant because it concluded the grievance would not succeed. The applicant provided no evidence linking this decision to any prohibited ground of discrimination or indicating that it was a reprisal.

30Similarly, the Union took the position that it did not have to deal with the claimant through the applicant and it appears that the Union did not permit him to attend its proceedings. The applicant and claimant did not like this decision, but the applicant pointed to no evidence that he has or is reasonably available to him that connects this decision to a prohibited ground of discrimination or indicates an intention to retaliate because the claimant asserted her human rights.

31The applicant stated that the Union failed to provide a Russian or Ukrainian interpreter for the claimant. The applicant, however, presented no evidence that he has or is reasonably available to him that the Union did not provide an interpreter for the claimant because of her place of origin or any other prohibited ground of discrimination. Consequently I find that the allegations against the Union regarding the claimant's grievance and the grievance process have no reasonable prospect of success.

32The Application is dismissed.

33Dated at Toronto, this 28th day of January, 2013.

"Signed by"

__________________________________

Douglas Sanderson Vice-chair