Alan McLean v. City of Barrie, 2013 HRTO 1818

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alan McLean Applicant

-and-

City of Barrie Respondent

DECISION

Adjudicator: Paul Aterman Date: October 29, 2013 Citation: 2013 HRTO 1818 Indexed as: McLean v. Barrie (City)

WRITTEN SUBMISSIONS

Alan McLean, Applicant Self-represented

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 reprisal.

2In addition to working for the respondent, the applicant is an official with a union that represents employees of the respondent.

3The applicant applied for a lateral transfer into a position that the respondent had posted. After the applicant requested to be considered for the position the respondent withdrew the posting. The applicant alleges that this decision was discriminatory and that his involvement with the union, including his past efforts in advocating in relation to health and safety issues, was a factor in the respondent’s decision to withdraw the posting. In effect he maintains that the withdrawal of the posting was a reprisal by the respondent because of his work as a union official in looking out for the health and safety of his fellow employees.

4The Tribunal requested submissions from the applicant on why the Application should not be dismissed. The Notice of Intent to Dismiss letter sent to the applicant explained that his Application does not appear to identify specific acts of discrimination within the meaning of the Code that the respondent allegedly committed.

5Although the applicant alleges reprisal, his submission in response to the Tribunal’s letter does not identify how the respondent is alleged to have taken steps against him as a result of his assertion of his Code-protected rights. Rather, the letter contends that the respondent acted in reprisal because he pointed out alleged failures by the respondent to respect its occupational health and safety obligations. A reprisal for seeking the enforcement of occupational health and safety standards is prohibited by Section 50 of the Occupational Health and Safety Act R.S.O. 1990, c.0.1, as amended. However, this is a matter that is separate and apart from the Code, and beyond the jurisdiction of the Tribunal to deal with.

6As noted in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 23, “Reprisal under s. 8 of the Code must be a reprisal for the assertion of human rights and there must be an intention to reprise for that reason”. The Tribunal does not have a general power to inquire into claims of unfairness outside the grounds listed in the Code. The applicant’s submissions do not explain how the respondent’s behaviour was related to reprisal or threat of reprisal for having claimed and enforced his rights under the Code, for having instituted or participated in proceedings under the Code, or for refusing to infringe the right of another person under the Code. In the absence of a link between the allegations made and an explanation for how the respondent’s behaviour was related to a reprisal under the Code, the Tribunal does not have jurisdiction to consider this Application.

order

7The Application is dismissed.