Gordon v. Ontario (Community Safety and Correctional Services), 2013 HRTO 1483

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lawrence Gordon

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services and the Ontario Public Service Employees Union

Respondents

DECISION

Adjudicator: Eric Whist Date: September3, 2013 Citation: 2013 HRTO 1483 Indexed as: Gordon v. Ontario (Community Safety and Correctional Services)

APPEARANCES

Lawrence Gordon, Applicant Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services, Respondent(s) Jinan Kubarsi, Counsel

Ontario Public Service Employees Union, Respondent Jane Letton, Counsel

Introduction

1This Application was filed on March 15, 2013, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The Application alleges discrimination with respect to employment on the basis of disability, age and reprisal.

2On April 19, 2013, the Tribunal, on its own intitiative, issued a Case Assessment Direction (“CAD”) directing that a summary hearing be held by teleconference pursuant to Rule 19A of its Rules of Procedure. Rule 19A.1 reads as follows:

19A.1 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.

3The summary hearing was held on July 24, 2013. During the summary hearing, I heard from the applicant and counsel for the respondents.

4In addition, I had before me the Application and further documents related to the applicant’s dealings with the respondents. The respondents were not required to file Reponses to the Application. The Ontario Public Service Employees Union (“OPSEU” or the “Union”) did file written submissions and case law for the summary hearing.

APPLICANT’S POSITION

5The applicant was employed by the Ministry of Community Safety and Correctional Services (the “Ministry”) as a correctional officer. He alleges that after provincial legislation established a ban on smoking in the workplace in 1990 his workplace, a correctional facility, continued to allow smoking to, as I understand, 1996. He submits that his exposure to second hand smoke during this period led to his having a life altering stroke in 2000, a stroke that required him to relearn how to walk and talk and led to the loss of his driver’s license. In his Application the applicant alleges that the Ministry and OPSEU discriminated against him based on disability by playing Russian roulette with his health and safety.

6The applicant was on leave for a period of two years following his stroke before returning to work in 2003. He retired in December 2012.

7The applicant submits that he filed a total of 18 grievances, 1 WSIB (Workers Safety and Insurance Board) complaint, 4 WDHP (Workplace Discrimination and Harassment Complaints) while working for the Ministry. Many of these complaints are in relation to the Ministry’s alleged failure to protect the applicant from second hand smoke. Some of the grievances relate to the applicant’s opportunities for overtime. A significant issue, if not the central issue for the applicant, in both his Application and at the hearing was his contention that the Ministry and OPSEU failed to adequately respond to any of these complaints - in particular his grievances - and that as a consequence he refused to “sign off” on any of these complaints and none of them has yet to be resolved. In his Application the applicant states that “my employer and OPSEU treated me with absolute disrespect because I stood up for my rights and for the law.” The applicant alleges this disrespect constitutes reprisal under the Code.

8The applicant further alleges that in 2012 he was denied the opportunity to return to work as a retired casual employee. He alleges that six other former employees, all with less seniority, were hired as casual employees. In his Application the applicant alleges that this constitutes age discrimination under the Code. During the hearing the applicant acknowledged that some of the persons hired as casual employees were older than him. He then submitted that the Ministry’s refusal to rehire him as a casual employee was an act of reprisal for his union activities, namely his active pursuit of his grievances and his refusal to settle or withdraw these grievances.

9The Ministry submits that any allegations related to the applicant being subject to second hand smoke in the period 1990 to 1996, are beyond the one year time limit allowed for the filing of an Application pursuant to section 34(1) of the Code. The Ministry submits that the allegations related to the applicant’s grievances for not being assigned overtime are complaints about seniority rights and not allegations that relate to a ground under the Code. The Ministry submits that the applicant’s allegation that he was not offered a position as a casual employee in 2013 cannot be characterized as a reprisal under the Code because the applicant was arguing that it was related to his union activities.

10The Union submits that no specific allegations of discrimination based on disability and age have been made against the Union, that rather the applicant’s principle contention is that the Union, along with the Ministry has not resolved the applicant’s many grievances in a timely manner. It submits that passing reference by the applicant in his Application to the Union treating the applicant with absolute disrespect because he stood up for his rights and for the law is a bald unparticularized statement that does not indicate what actions may have been disrespectful or how this alleged disrespect might constitute an act of reprisal under the Code.

LAW AND ANALYSIS

11Rule 19A of the Tribunal’s Rules of Procedure provides for a summary hearing, following which an application may be dismissed, in whole or in part, if the Tribunal finds that there is no reasonable prospect that the application or part of the application will succeed.

12The approach to deciding whether an application has a reasonable prospect of success following a summary hearing was explained as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 to 9:

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.

13It is also relevant in this case to refer to section 34 of the Code. Section 34 requires that an application be filed within one year of the last incident of alleged discrimination or that an applicant has to satisfy the Tribunal that any delay past the one year time limit was incurred in good faith.

14It is clearly evident from the applicant’s submissions that he feels strongly that the Ministry’s alleged failure to enforce the law in the 1990s led to his stroke in 2002. He may have additional concerns about the Union’s actions during this period given his claim the Union also played Russian roulette with his health and safety, although the applicant provided no information or submissions about the Union’s activities during this period.

15The applicant is of the view that the Ministry’s actions in the 1990s caused his disability. However, even if I accept the applicant’s allegations that these actions were potentially acts of discrimination based on disability I am of the view that these alleged acts and any potential discriminatory acts of the Union during this period are untimely. They occurred over 13 years prior to the filing of the Application, well beyond the one year time limit for filing an Application required under section 34(1) of the Code.

16I heard no information to indicate that the applicant’s delay in filing his Application was incurred in good faith and as such would make his allegations about events up until his stroke in 2000 timely under section 34(2) of the Code. It may be that the applicant may have been focussed on his grievances and WDHP complaints and waiting for them to conclude. However, the Tribunal’s case law is clear that waiting for another legal proceeding, such as a grievance procedure, to conclude before pursuing one’s rights under the Code is not a good faith reason for delay in filing an application. See, for example, Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670 and Mu v. Cargill Foods, 2011 HRTO 846. Consequently, the applicant’s allegations of discrimination in relation to events up until his stroke in 2000 are dismissed for delay.

17The applicant also submits that the respondents’ responses to his grievances and complaints constitute acts of discrimination. However, it is not clear from the applicant’s submissions on what basis he makes this claim given the lack of information provided by the applicant as to what has happened since his return to work in 2003. The applicant provides few particulars about his complaints and the alleged actions of the respondents other than to repeatedly claim that none of his complaints has been resolved and that he has resisted signing off on these complaints. Further questioning of the applicant failed to elicit information that explained why the applicant was of the view that the respondents’ actions were discriminatory.

18In my view, the applicant has not provided an explanation or more importantly pointed to evidence or potential evidence to show why the respondents’ actions in responding to his grievances and complaints are linked to his disability and that he was discriminated against in these processes. I find that there is no reasonable prospect that the applicant could prove that the respondents’ actions in responding to the applicant’s complaints constitute discrimination under the Code based on disability.

19The applicant’s principal allegation of reprisal is that the respondents disrespected his efforts to stand up for his rights. I agree with the Union that these allegations were unparticularized. The applicant did not specify in his Application or at the hearing what actions of the Union and indeed the Ministry that constituted reprisal other than to make the general assertion that he was disrespected in the grievance process. Given the applicant’s inability to point to any evidence that would in any way allow this Tribunal to support an allegation or an inference of discrimination based on a prohibited ground, I do not find that the applicant has a reasonable prospect of success for this allegation.

20The applicant alleged in his Application that the Ministry refused to rehire him as an occasional employee in 2013 because of his age. At the hearing he indicated that persons older than himself were rehired and acknowledged that the rehiring was not an incident of age discrimination. Accordingly this allegation has no reasonable prospect of success.

21The applicant then alleged that he had not been rehired in reprisal of his union activities, including his refusal to sign off on his grievances. In my view this was bald speculation. The applicant was unable to point to any evidence or potential evidence to support this claim. I do not find that the applicant has a reasonable prospect of success that this was a reprisal for the applicant enforcing his rights under the Code.

22The applicant is clearly of the view that he has not been fairly treated. However, the Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination on the grounds set out in the Code. I find that the applicant will be unable to prove a link between the respondents’ actions and the grounds of discrimination alleged. Accordingly, the Application is dismissed.