Chao v. Canadian Union of Public Employees, 2013 HRTO 199

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Maidy Chao

Applicant

-and-

Canadian Union of Public Employees and Risa Pancer

Respondents

DECISION

Adjudicator: Mary Truemner

Date: February 4, 2013

Citation: 2013 HRTO 199

Indexed as: Chao v. Canadian Union of Public Employees

APPEARANCES

Maidy Chao, Applicant

Self-represented

Canadian Union of Public Employees and Risa Pancer, Respondents

Dave Steele, Counsel

Introduction

1In this Application filed on May 7, 2009 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), the applicant alleges reprisal and discrimination with respect to employment and membership in a vocational association on the basis of disability. On May 31, 2010, the Tribunal dismissed the allegations against the applicant's employer in an Interim Decision, 2010 HRTO 1220, because of delay. The remaining corporate respondent was her union and the personal respondent was the union's counsel who was involved in a proceeding that dealt with a grievance filed on the applicant's behalf. The Interim Decision directed that a hearing be scheduled to hear evidence solely with respect to the remaining respondents' liability for alleged Code breaches between May and November 2008.

2The Application indicates that representatives of the union failed to help the applicant in her disability-related disputes with her employer, particularly in 2008 when a grievance filed on her behalf was before an arbitrator. The Application indicates that the compensation for the applicant being proposed in the grievance proceeding was "unfair", that the union did a poor job of representing the applicant because she was working part-time, that the personal respondent did not review the applicant's evidence thoroughly, and that the personal respondent protected the employer instead of her. It appears that she was not happy with the decision rendered by the arbitrator.

3On September 18, 2012, the Tribunal issued a Case Assessment Direction ("CAD") in order for a summary hearing to be held to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect of success. The CAD noted that "for an Application to continue in the Tribunal's process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged..., or an intention to commit a reprisal for asserting one's Code rights."

4The CAD also referred to Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-10, where 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.

SUMMARY HEARING

5Prior to the commencement of the summary hearing, the applicant requested to record the proceedings because her English is not advanced enough for her to fully understand what people say. The respondents filed their opposition to her request with reference to the Tribunal's Practice Direction on Recording Hearings which states that the Tribunal will record a hearing when it is necessary or else a party would be unable to participate in the hearing. The respondents' position was that the applicant would be able to fully participate in the hearing with a translator.

6Satisfied at the summary hearing that the applicant could fully understand the Mandarin interpreter provided for her, and that the applicant's preferred language was Mandarin, I refused the applicant's request to record the summary hearing.

7At the summary hearing, the applicant confirmed that her position was that the union did a poor job of representing her because she was a part-time employee and not a full-time employee. She argued that when she dealt with the union representatives, she was mentally ill, and that they did not help her. Assuming without finding that the respondents either did not want to help her or did not help her, I heard nothing from the applicant which described any evidence with which she might prove that the respondents failed her on the basis of her disability or reprised against her for trying to enforce her rights under the Code.

8The Tribunal does not have the power to deal with general allegations of unfair treatment by unions or employee associations. For example, the Tribunal has found that it is not discrimination for a union or an employee association to decide not to pursue a grievance, or address a member's issues, unless its decision is linked, in whole or in part, to a prohibited ground of discrimination under the Code: see Baylet v. Universal Workers Union, 2009 HRTO 700 at paras. 17-19; Traversy v. Mississauga Professional Firefighters Association, 2009 HRTO 996 ("Traversy") at para. 33; Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 at paras. 16-17; Koroll v. Automodular, 2011 HRTO 774 at paras. 71-73; Gungor v. Canadian Auto Workers Local 88, 2011 HRTO 1760 at paras. 42-47; and Taylor-Cole v. Orangeville Police Association, 2011 HRTO 2285 at para. 9; and Cook v. Civic Institute of Professional Personnel, 2012 HRTO 1270.

9In Traversy, the Tribunal stated, 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.

10As stated in Brown v. Kensington Garden, 2012 HRTO 1511, where that applicant alleged that the union did not do enough to adequately represent that applicant's interests in the grievance processes:

This kind of conduct may or may not provide a basis for a duty of fair representation complaint against the Union under the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A. However it is not this Tribunal's jurisdiction to determine whether a union fairly or adequately represented a member in the absence of evidence that its conduct was based on a discriminatory factor.

11In this Application, the applicant's allegations certainly reflect dissatisfaction with the respondents, their failure to obtain results for the applicant that she felt she deserved, and her perception that they failed to "protect" her from her employer. Having heard her arguments and reviewed her filed allegations, however, I find that the applicant has no reasonable prospect of demonstrating that the respondents' treatment of her or her grievance could be considered discrimination on the basis of her disability or reprisal. Therefore, the Application has no reasonable prospect of success.

12The Application is dismissed.