HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Marie Desbiens
Applicant
-and-
Cassellholme for the Aged and Canadian Union of Public Employees, Local 146
Respondents
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Desbiens v. Cassellholme for the Aged
APPEARANCES
Marie Desbiens, Applicant
Keith Allen, Representative
Cassellholme for the Aged, Respondent
Lise Ellis, Counsel
Canadian Union of Public Employees, Local, 146, Respondent
Mona Staples, 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 against Cassellholme for the Aged (“Cassellholme”) and the Canadian Union of Public Employees, Local 133 (the “Union”).
Summary Hearing
2In a Case Assessment Direction dated May 16, 2013, the Tribunal directed that a Summary Hearing would be convened to determine whether the Application as against the Union should be dismissed on the basis that it has no reasonable prospect of success.
3The Summary hearing was held on October 9, 2013, during which all of the parties participated. After hearing the submissions of the parties, I issued an oral ruling which dismissed the Application against the Union on the basis that it had no reasonable prospect of success. The reasons for this oral ruling follow.
Background
4The applicant is employed by Cassellholme and the terms and conditions of her employment are governed by a Collective Agreement between Cassellholme and the Union.
5The substance of the Application against Cassellholme is that it failed to accommodate her disabilities in accordance with the Code. The Union filed a grievance in July 2012 on behalf of the applicant alleging that she should be awarded a position for “Meals on Wheels”. The substance of the Application as against the Union is with respect to its administration of this grievance including its failure to refer it to arbitration. The applicant also does not believe that she was fairly represented by the Union. The Application alleges that she received correspondence from a representative of the Union that “because I was involved in that group, that he dropped my grievance”. “That group” refers to a work transition program offered by WSIB.
6During the Summary Hearing the parties advised me that the applicant had recently filed a complaint against the Union pursuant to s. 74 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A.
Decision
7The 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. See also Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025, at paras. 16-18.
8The applicant is dissatisfied with the Union’s representation of her interests with respect to her employment with Cassellholme. However, the issue is whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to her can show a link between the conduct of the Union and her disability (Dabic v. Windsor Police Service, 2010 HRTO 1994).
9Having reviewed the submissions of the parties and the documents filed by the applicant, this Tribunal finds that there is no reasonable prospect that the applicant can succeed in proving that the Union breached the Code. The applicant did not point the Tribunal to any evidence which could establish that the Union’s conduct was discriminatory, including its refusal to pursue any grievances on her behalf.
Case Management Issues
10After I rendered my oral ruling dismissing the Application against the Union, the Union made a request to be granted intervenor status. The applicant’s representative advised that the applicant opposed this request and wished to have the opportunity to make written submissions. I made an oral ruling directing that the applicant deliver and file her submissions by no later than October 25, 2013.
11I also directed the applicant to file written submissions with respect to the issues raised by Cassellholme in its Response, with respect to its position that the Application was to be dismissed pursuant to section 45. 1 of the Code. I also directed that these submissions should be delivered and filed by no later than October 25, 2013.
12On October 24, 2013, the Tribunal received correspondence from the applicant’s new representative in which she states that the applicant’s former representative “is not sure what those submissions were to be about.”
13In these circumstances, it is appropriate for me to extend the time lines for the applicant to provide her written submissions.
Order
14The Tribunal orders that:
a. The Application as against the Union is dismissed, and the style of cause shall be amended in any future decision to remove them as a respondent;
b. The applicant must within 14 days of the date of this Interim Decision deliver to Cassellholme and the Union and file with the Tribunal submissions on:
i. Whether she consents to the Union’s request to intervene in the Application, and if not, submissions in support of her opposition; and
ii. Her position with respect to Cassellholme’s request that the Application should be dismissed pursuant to section 45.1 of the Code.
15I am not seized.
Dated at Toronto, this 25th day of October, 2013.
“Signed by”
Geneviève Debané
Vice-chair