HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Nancy Tsonis
Applicant
-and-
407 ETR Concession Company Limited
Respondent
INTERIM DECISION
Adjudicator: Maureen Doyle
Indexed as: Tsonis v. 407 ETR Concession Company Limited
APPEARANCES
Nancy Tsonis, Applicant
Self-represented
407 ETR Concession Company Limited, Anita D’Alessandro, Lydia Iacovou, Wayne Anthony, Michael Nardi, Sandy Resendes-Mamone, and William Sterrit, Respondents
Michael Horvat, Counsel
CAW, Local 414, David McCormick, Michael Penfold, Sharon Davis, Stacey Reid, Respondents
David McCormick, Representative
Introduction
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, creed, and family status.
2In a Case Assessment Direction (CAD) issued on May 13, 2013, the Tribunal directed, on its own initiative, that a summary hearing be held to determine whether the Application should be dismissed as against the CAW, Local 414 (the “union”), Stacey Reid, Michael Penfold, Sharon Davis and Dave McCormick (the “individual union respondents”), in whole or in part, on the basis that there is no reasonable prospect that it will succeed. The CAD indicated that those respondents need not file a response. The above-named individual union respondents were union representatives and officials. The Tribunal directed that at the Summary Hearing, the applicant would be required to make argument about why the Application should not be dismissed as against the union and the individual union respondents as having no reasonable prospect of success and should point to evidence upon which she would rely to establish discrimination by the union or association within the meaning of the Code.
3One Response was filed on behalf of 407 ETR Concession Company Limited (the “respondent employer”) and the other personal respondents, Anita D’Alessandro, Lydia Iacovou, Wayne Anthony, Michael Nardi, Sandy Resendes-Mamone, and William Sterrit (the “individual employer respondents”), in which they denied having discriminated against the applicant contrary to the Code.
4The Summary Hearing was convened and all parties participated.
DECISION – SUMMARY HEARING
5For the reasons that follow, the Application is dismissed as against the CAW, Local 414, and against the individual union respondents Stacey Reid, Michael Penfold, Sharon Davis and Dave McCormick as there is no reasonable prospect as against the union and the individual union respondents.
ANALYSIS
Summary Hearing
6In a summary hearing, the issue is whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or a part thereof will succeed. It is outlined in Rule 19A of the Tribunal’s Rules of Procedure:
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.
7In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9, 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.
Application to the Facts
8The applicant alleges that her employer did not accommodate her for her disability, creed, or family status. Her allegations with respect to CAW, Local 414 and the individual union respondents who were the subject of this summary hearing, are essentially that the union did not adequately represent her in her attempts to be accommodated, or when she was disciplined by her employer.
9The CAD in this matter noted that 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 of the Code. In Traversy v. Mississauga Professional Firefighters’ Association, 2009 HRTO 996, the Tribunal stated as follows at paragraph 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.
10The CAD also noted that “In this case, it appears that the Application alleges merely that a bargaining agent failed to properly represent the applicant or pursue a grievance.”
11Specifically with respect to accommodation, in her Application, the applicant alleges that her employer did not have regard to medical documentation she presented to them. She also alleges that they would not return her to work when she was medically cleared to do so. She alleges that her employer did not properly accommodate her at work and that she suffered financial disadvantages upon her return to work when she was not entitled to receive an incentive and when she was not permitted to work overtime. She alleges that her employer did not assign her to duties she requested and that this was due to her disability. She alleges that managerial employees at the respondent met with her in a room normally used when employees are in trouble with the employer and that she was sent home and kept off work due to her disability. She alleges that in December 2011, the employer advised her that she would have to choose between two jobs, only one of which she could perform due to her disability. She alleges that this latter position was a lower paying position. She alleges that the respondent employer continued to fail to accommodate her, brought performance issues to her attention which she felt were inappropriate due to her disability, and threatened her with discipline. She alleges that this was all due to her disability. She also alleges that ergonomic issues were not dealt with appropriately.
12She alleges that the respondent employer again failed to accommodate her disability following an injury in September 2012. She alleges that the respondent employer has refused her request for another position due to her disability. She also alleges that the respondent employer disciplined her for an absence in December 2012 which she alleges was disability-related.
13She also alleges that the respondent employer did not accommodate her when she requested time off to attend religious services. Further, she alleges that the respondent employer refused her request for accommodation “so [I] could ensure the safety of [my] children before school”.
14With respect to the union and the individual union respondents, she alleges that in January 2012, she sent an email to the National Representative of CAW, Michael Langdon, begging that the union “not allow the demotion of position because of my disability”. She also alleges that Mike Penfold, her CAW union representative and Christine O’Connor, her union local president, did not object to the employer’s offer of a lower-paying position.
15She alleges that on September 14, 2012, Stacey Reid, her union steward, attended a meeting with her and the respondent employer to discuss her absences from work on September 4 and 5, 2012. She alleges that she provided a doctor’s note but that the respondent employer was not satisfied. She alleges that her union representative was not helping her.
16She alleges that on February 26, 2013, she contacted her union representative Dave McCormick requesting that the union file a grievance on her behalf regarding the fact that the respondent employer refused to consider her application for the position of Accounts Payable Clerk. She alleges that he advised that he would include it in the grievance being filed about her 3 day suspension relating to her December 2012 absence. She alleges that she insisted on a grievance meeting, but that it was postponed. She alleges that prior to the meeting, Dave McCormick offered her a “pay-out” to end her employment and withdraw the grievance. She alleges that ultimately, when the grievance meeting was convened, Dave McCormick and union stewards Stacey Reid and Sharon Davis were in attendance, but that they said nothing to defend her. She alleges that she pursued the grievance regarding her suspension. She also alleges that a “previous grievance were [sic] not supported by the union as well”.
17She also alleges that a member of management at the respondent employer bullied her and that when she spoke to her union representative Sharon Davis about it, Ms. Davis directed her to speak to Human Resources at the respondent employer.
18Subsequent to the CAD in this matter, the applicant filed a Reply, a Request for an Interim Remedy, a Request for an Expedited Hearing and a Request for an Order During Proceedings (RFOP), in which she seeks to amend the Application and seeks production of documentation. Some of the additional allegations she seeks to add relate to the fact that the employer ultimately terminated her employment, and she also seeks to add the ground of reprisal as a basis of her Application. At the summary hearing the applicant also submitted that the union had not represented her properly with respect to the termination of her employment.
19The Tribunal wrote to the respondent employer and individual employer respondents, advising that they did not need to provide a Response to the Request for an Expedited Hearing or to the Request for an Interim Remedy.
20The Tribunal denied the Request for an Expedited Hearing and the matters of the Request for an Interim Remedy and the RFOP are outstanding issues at this point.
21At the summary hearing, the applicant submitted that her union “always declined to fight” for her, but that it pursued rights under the collective agreement for others. She submitted that this shows differential treatment, and that it is therefore discriminatory. She submitted that she believes she has been treated differently due to her disability. She submitted that she had wanted to make her complaint at the Ontario Labour Relations Board (OLRB), but that a lawyer advised her that she would not be able to pursue her concerns at two different tribunals, and she decided to file this Application instead.
22At the summary hearing, the representative for the union submitted that the applicant’s concerns regarding the representation she received from her union is a matter which would have been properly before the OLRB. He noted that the applicant made no allegation that collective agreement provisions violated the Code. He submitted that the applicant has pointed to no evidence of the union or the individual union respondents discriminating against her contrary to the Code.
23It is clear that the applicant disagreed with decisions and actions of the respondent union and individual union respondents, but she has not pointed to evidence she could rely upon to establish that the union or the individual union respondents treated her differently because of her disability. As noted above, the power of this Tribunal is limited to dealing with applications alleging a violation of the Code which prohibits discrimination on specific grounds. It does not have the power to deal with all claims of unfairness or all disputes between parties. As the Tribunal stated in Vere v. CAW Local 4207, 2012 HRTO 123 at paragraph 38:
In sum, this Tribunal has held that, in the absence of evidence that a union’s action or inaction was based on a discriminatory factor, not only is a union’s failure to file or pursue a grievance not in itself discriminatory, but so is a union’s failure to advocate on the applicant’s behalf or its failure to assist an applicant in addressing discrimination or to contest the employer’s actions. This kind of conduct may or may not provide a basis for a duty of fair representation complaint against the union under s. 74 of the Labour Relations Act. But 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. That is the role and jurisdiction of the Ontario Labour Relations Board.
24Accordingly, these allegations have no reasonable prospect of success and they are dismissed on that basis.
25At the summary hearing, the applicant made no separate submissions regarding the individual union respondents who were the subject of the summary hearing. She has not pointed to any evidence that she has or that is reasonably available to her to show a link between their alleged actions as stated in the Application, and her disability. Accordingly, those allegations have no reasonable prospect of success, and they too are dismissed on that basis.
OTHER ISSUES
Removal of Individual Employer Respondents
26In their Response, the respondent employer and the individual employer respondents requested that the individual employer respondents be removed as parties to this Application.
27Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board et al, 2008 HRTO 14 at para. 42, the Tribunal set out the general principles that apply to this issue:
The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for “any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent”. Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.
28The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 (“Persaud”) at para. 5:
Applying these principles to the Tribunal’s power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:
Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?
Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?
Would any prejudice be caused to any party as a result of removing the personal respondent?
In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.
29The respondent employer and individual employer respondents submit that the individual employer respondents were acting at all times within the scope of their employment duties. They identify the individual employer respondents as members of the management and supervisory group of the respondent employer. The Response states that the individual employer respondents “acted at all times within the scope of their employment and each allegation of the Applicant is related to her interactions with such individuals in their respective employment capacities”. Further, it states that the respondent employer “concedes that it is liable for any of the conduct of the individually named respondents when they acted in the course of their employment in a manner that may be found to violate the Code.” They cite Persaud, and submit that in this case, the naming of the personal respondents is unnecessary and would unduly add to the complexity of the proceedings.
30In her Reply, the applicant indicated that provided the respondent employer is prepared to accept responsibility for the actions of the individual employer respondents, she is prepared to remove all of those individuals but one, as respondents to this Application. The applicant did not agree to remove Anita D’Alessandro as a respondent, and she submitted that Anita D’Alessandro was “constantly involved in all discriminatory acts” and that she “must be found personally responsible for all her actions”.
31As noted above, the applicant consented to the removal of all individual employer respondents except for Anita D’Alessandro, provided the respondent employer accepts responsibility for their actions, and in its Response, the respondent employer has accepted such responsibility. Accordingly, they are removed as respondents to this Application.
32With respect to Anita D’Alessandro, I agree with the respondents’ submissions. In my view, considering all the circumstances, it is not necessary to involve Anita D’Alessandro as an individual respondent in order to have a fair, just and expeditious resolution of the merits of the Application. There does not appear to be any compelling reason to continue the proceeding as against Anita D’Alessandro. I am satisfied that her alleged actions were by and large merely the implementation of corporate or organizational policy and decisions. I am also satisfied that there is a corporate respondent which has acknowledged that it is responsible for her actions if any liability is found and that the respondent employer is able to respond to any remedy that might be awarded. Finally, it is not evident that there would be any prejudice to any party if the individual respondent Anita D’Alessandro is removed from the Application.
33The respondents Anita D’Alessandro, Lydia Iacovou, Wayne Anthony, Michael Nardi, Sandy Resendes-Mamone and William Sterrit are removed as respondents to the Application. The style of cause shall be amended accordingly.
Request for Interim Remedy
34The applicant seeks “Severance Pay out” as an Interim Remedy. She cites the Employment Standards Act, 2000, and states that the respondent employer owes her “severance pay” based on her 6 years, 9 months of service as an employee.
35The conditions for awarding an interim remedy are set out in Rule 23.2 of the Tribunal’s Rules of Procedure:
The Tribunal may grant an interim remedy where it is satisfied that:
a) The Application appears to have merit;
b) The balance of harm or convenience favours granting the interim remedy requested; and
c) It is just and appropriate in the circumstances to do so.
36Interim Remedies are extraordinary. The Tribunal’s power to order respondents to do or to refrain from doing something is ordinarily contingent upon a finding that they have violated the Code. An Interim Remedy would require a respondent to do something or to refrain from doing something without a finding that it has violated the Code. Accordingly, the applicant bears a “significant onus” in establishing that the Tribunal should award an interim remedy. See TA v. 60 Montclair, 2009 HRTO 369 (“Montclair”).
37In determining requests for interim remedy, the Tribunal takes the approach set out in Montclair:
The focus of the inquiry is on whether an interim remedy is necessary to ensure a complete, appropriate and effective remedy at the end of a hearing (paras. 15-27);
Interim remedies are extraordinary remedies and an applicant has a significant onus to meet in demonstrating that an interim remedy is necessary (paras. 28-29);
To satisfy the first element of the test, the Tribunal need generally only be satisfied that there is an arguable case and the claim is not frivolous or vexatious (paras. 30-32);
The second factor involves a balancing of the harm to the applicant against the harm to the respondent (paras. 33-34);
The third factor calls upon the Tribunal member to decide whether the request is necessary to further the remedial purposes of the Code and is fair in all of the circumstances (para. 35); and
The three criteria should not be seen as successive hurdles, but the decision should consider the collective impact of all factors and the purpose of the provision as a whole (para. 36).
38The order the applicant seeks is one which arises out of the loss of her employment. As noted above, it is not evident at this point that the applicant’s allegations respecting her termination are properly before the Tribunal, as they form part of allegations which she seeks to add by way of amendment to her Application. However, even if the Tribunal were to assume, without deciding, that her Application should be amended to include those allegations, and even if the Tribunal were to assume, without deciding, that her Application appears to have merit to the extent that there is at least an arguable case, I do not find that an interim remedy is appropriate in the circumstances of this case. I am not persuaded that the balance of harm or convenience favours granting the interim remedy requested, or that it is necessary to further the remedial purposes of the Code, or that it is fair in the circumstances to do so.
39In her Request for Interim Remedy, the applicant asserts that her spouse’s income is insufficient to cover the needs of their family, and she seeks an order that the respondent employer pay her severance pay in accordance with the Employment Standards Act, 2000 (the “ESA”).
40With respect to the balance of harm and convenience, given the information provided by the applicant, it is not evident that she is unable to mitigate her losses by pursuing her claim for statutory entitlements under the ESA with the Ministry of Labour or by finding alternate employment.
41I am not persuaded that an interim remedy is necessary to facilitate and ensure that the Tribunal is able to award a complete, appropriate and effective remedy at the end of a hearing, should a violation of the Code be found. In circumstances where such a violation is found, the remedial powers of the Tribunal permit it to make orders for compensation for financial losses arising out of the loss of an applicant’s employment.
Request for Documents
42As noted above, in her RFOP filed before the summary hearing, the applicant seeks an order for the production of documentation relating to her allegations. Rules 16 & 17 of the Tribunal’s Rules of Procedure provide timelines for disclosure of documentation and witnesses prior to the hearing of an Application. Those timelines do not commence until the Tribunal issues a Notice of Confirmation of Hearing. This matter has not yet been scheduled for a hearing and the Tribunal has not yet issued a Notice of Confirmation of Hearing in this matter. In these circumstances, the applicant’s Request for documents is premature and is dismissed.
Timeliness and Amendment of the Application
43In its Response to the Application, the respondent submitted that some of the applicant’s allegations are untimely and should not be considered by the Tribunal. To date, the Tribunal has not required the respondent to file a Response to the applicant’s Request to amend her Application. Both parties have agreed to mediation in this matter. The Registrar will schedule one half-day mediation in this matter, and if this matter is not resolved at mediation, the Tribunal will issue further directions with respect to these outstanding issues.
ORDERS
44The Tribunal directs as follows:
The Application as against the union respondent and as against the individual union respondents is dismissed.
The individual employer respondents are removed as respondents to this Application and the style of cause shall be amended accordingly.
The applicant’s request for an order for production of documents is dismissed.
The applicant’s request for an interim remedy is dismissed.
45I am not seized.
Dated at Toronto, this 5th day of December, 2013.
“Signed by”
Maureen Doyle
Vice-chair