Lawrence v. Chrysler Canada, 2013 HRTO 1777

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrew Lawrence Applicant

-and-

Chrysler Canada, CAW TCA Canada, Carol Baker and Artis Snowe Respondents

INTERIM DECISION

Adjudicator: David Muir Date: October 22, 2013 Citation: 2013 HRTO 1777 Indexed as: Lawrence v. Chrysler Canada

APPEARANCES

Andrew Lawrence, Applicant Self-represented

CAW TCA Canada and Artis Snowe Respondents Leon Rideout, Representative

Chrysler Canada, Respondent Christoper Dunn, Counsel

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

2In a Case Assessment Direction issued on June 28, 2013 the Tribunal directed, on its own initiative, that a summary hearing be held to determine whether this Application should be dismissed as against the CAW TCA Canada and Artis Snow in whole or in part, on the basis that there is no reasonable prospect that it would succeed.

3A Summary Hearing was held by teleconference on October 16, 2013. All parties attended including Chrysler Canada on a watching brief.

4For the reasons that follow I find that the Application as against the CAW TCA Canada and Artis Snowe must be dismissed because it has no reasonable prospect of success.

5Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read 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.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

6Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 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.

7At the outset of the hearing I described in general terms what the issue for determination was at this stage. I asked the applicant if he had read the Decisions the Tribunal had referred him to in the CAD and he indicated that he had not. I then asked the applicant if he understood what he was required to do and he indicated that he did. I then asked the applicant to point me to the evidence that would tend to support his contention that the applicant discriminated against him on the basis of disability. The applicant then reiterated his allegations in the Application.

8The applicant alleges that he was refused treatment by the respondent Chrysler’s health department because he lacked a medical pass to be off the shop floor. It appears that these passes are utilized to ensure that trips to the health department are for legitimate reasons. In any event the applicant alleges that the nurse on duty refused to examine him and, as it turned out, the applicant may have suffered a collapsed lung. The applicant also complains that he received a letter from the respondent Chrysler advising him that there was modified work for him and if he did not take the work available it could have a negative impact on any WSIB claim and/or a claim for Sickness and Accident benefits under the collective agreement.

9At the hearing the applicant also complained that, because of his level of use of short term sickness benefits, he must file such claims within 3 days rather than the more typical 10 days for other employees. Finally at the hearing the applicant alleged that there were secret agreements between Chrysler and the CAW. I asked him if they had any bearing on the issues in this case and he said he did not know as he had not seen them. Finally, at the hearing the applicant alleged for the first time that he asked the union respondents to file grievances about some of these issues.

10The allegations are denied by the union respondents. However, assuming they are allegations that are capable of being proved, the applicant’s allegations are assumed to be true. However even assuming that all of the allegations of the applicant as against the union respondents are true they do not establish a violation of the Code.

11The essential allegation of the applicant as articulated at the hearing if not in the Application is that the union did not act when asked to do so by him. As was indicated to the parties in the June 26, 2013 CAD the Tribunal has held that it is not discrimination for a union or association to decide not to file or pursue a human rights grievance, unless the reason for doing so was based on one of the grounds in the Code. In Traversy v. Mississauga Firefighters’ Association, 2009 HRTO 996, the Tribunal stated as follows at para. 33:

Assuming that the Code also applies to this aspect of a union’s relationship with the employees it represents, a claim that the union violates the Code must be based on an assertion of differential treatment, and not simply a failure to act. The failure or refusal to take forward a human rights issue, such as accommodation of a disability in the workplace, is not, in and of itself, a breach of the Code. There may be many reasons that have no discriminatory overtones why a union might choose not to pursue a human rights claim on behalf of an employee: see Baylet v. Universal Workers Union, 2009 HRTO 700. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.

12The parties were also referred to Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025, at paras. 16-18. It is unfortunate that the applicant did not review these cases prior to the summary hearing.

13The applicant pointed to no evidence which would support his claim that he experienced discrimination based on disability from the union respondents. Even assuming that his allegations are all true his claim that the respondents’ failure to act was informed by the fact that he claimed to be a person with a disability is pure speculation. Similarly, the allegation of a secret agreement between the employer and the union is nothing more than a bald assertion devoid of any particulars. Even assuming that this allegation is true the applicant conceded that he had no idea whether anything contained in this speculative secret agreement had anything whatever to do with this case. In my view in the absence of any evidence indicating that a factor in the union respondents’ actions was that the applicant was allegedly a person with a disability this Application as it relates to the CAW TCA Canada and Artis Snowe must be dismissed because it has no reasonable prospect of success.

14The remaining parties have agreed to mediation and the Application will proceed to that stage of the Tribunal’s process.

15I am not seized of this case.