Nassis v. Toronto Police Services Board, 2013 HRTO 2076

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Pat Nassis

Applicant

-and-

Toronto Police Services Board, Toronto Police Services and Toronto Police Association

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: December 16, 2013

Citation: 2013 HRTO 2076

Indexed as: Nassis v. Toronto Police Services Board

APPEARANCES

Pat Nassis, Applicant

Self-represented

Toronto Police Association, Respondent

Nini Jones, Counsel

Introduction

1By Application dated April 26, 2013, the applicant alleged discrimination in employment because of ancestry, disability, sex, sexual orientation, gender identity and gender expression contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, the applicant raised several incidents that she alleged constitute discrimination and harassment by the Toronto Police Services Board (“TPSB”). She also alleged that the Toronto Police Association (“TPA”) discriminated against her because of sex when it failed to properly represent her.

2By Case Assessment Direction (“CAD”) dated May 31, 2013, the Tribunal directed that the matter be scheduled for a summary hearing by teleconference. The parties were directed to address the issue of whether the applicant’s Application as against the TPA stands a reasonable prospect of success. As noted by the Tribunal in its CAD, an alleged failure by a union or employee association to appropriately represent a member or pursue a grievance is not a violation of the Code unless the union’s actions are discriminatory because of a ground protected under the Code.

3The Tribunal held a teleconference hearing to hear oral submissions on this issue on November 14, 2013.

4Having considered the parties’ submissions and the applicable case law, I find that the Application as against the Toronto Police Association must be dismissed as having no reasonable prospect of success.

Reasonable Prospect of success

Summary Hearing Process

5The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

6The Tribunal has stated in several decisions that it does not have jurisdiction to address general allegations of unfairness or adverse treatment unrelated to the Code. Many experiences of unfairness, which are not defined as discrimination in the legal sense, can leave a person with significant emotional and financial damage. However, the Tribunal’s jurisdiction is limited to claims of discrimination under the Code. Discrimination under the Code generally involves an allegation of adverse treatment because of one or more of the grounds listed in the Code. Adverse treatment is not discriminatory in the legal sense unless there is proof that one or more of the personal characteristics listed in the Code were a factor in the treatment the applicant experienced.

7The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he or she experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary.

8However, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he or she was treated adversely. The purpose of the summary hearing is to determine if reasonable inferences can be drawn from the any facts or evidence the applicant is able to point to which tend to support the applicant’s belief that he or she has experienced discrimination under the Code.

9The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the adverse treatment allegedly experienced by the applicant with the grounds alleged in the application. Sometimes, applicants are not in a position to point to any evidence beyond their own suspicions to support their belief that they have been discriminated against. In such a situation, applications may be found to have no reasonable prospect of success.

10For an Application to continue in the Tribunal’s process following a summary hearing, 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 in the Code.

11Having set out the basic framework for determining whether an application should be dismissed in whole or in part because it has no reasonable prospect of success, I now turn to the facts of this particular case.

Factual Background

12The applicant was a sergeant with Toronto Police Services. She was also a member of the TPA. Her Application includes a 48-page description of events occurring over a period of approximately 17 years. The bulk of the Application relates to alleged discrimination or harassment by representatives of Toronto Police Services.

13The only incidents raised by the applicant that involve the TPA in any substantial way are the following:

a. TPA representative Mike Abbott told the applicant in April 2011 that she could not challenge a mark she had obtained in a promotional assessment. Mr. Abbott advised the applicant not to meet with the police superintendent but told her that instead he would set up a meeting with local command. During the meeting with local command, Mr. Abbott allegedly failed to defend or represent the applicant. He advised her to start looking for another place to work and said it was obvious that the local command did not want her there.

b. Mr. Abbott advised the applicant that problems she was having with a staff inspector did not amount to reprisal or harassment. He allegedly advised the applicant that the inspector could do whatever he wanted to do because it was his unit.

c. The applicant told Mr. Abbott about unexpected visits she had been receiving from representatives of unit command during a sick leave. She told Mr. Abbott that she felt that she was being harassed or reprised against. Mr. Abbott gave the applicant advice about how to handle her relationship with the TPS during her sick leave. He also told her that the incidents did not amount to harassment or reprisal. The collective agreement permits such visits by the employer. Mr. Abbott advised the applicant that her unit commander could transfer her at any time and that she should start looking for a position in case this occurred. Mr. Abbott told the applicant there was not much more the TPA could do for her. He stated that it was time that she “pack it in” since she had a good pension and over 25 years of service.

d. The TPA refused to file a grievance on behalf of the applicant.

14In addition to filing her Application, the applicant filed a complaint on April 21, 2013, claiming that the TPA breached its duty of fair representation under the Police Act. The applicant’s complaint was scheduled to be heard the week after the summary hearing, on November 21, 2013.

15At the summary hearing, the applicant stated that she was aware of the Tribunal’s case law relating to allegations that a union has failed to adequately represent a member. However, the applicant stated that she is specifically alleging in her Application that her union’s failure to adequately represent her was due to her sex. When I asked the applicant what evidence she would seek to rely upon at a hearing to support her claims of discrimination against the TPA, she replied that she would rely upon her own testimony about her discussions with Mr. Abbott and his failure to take appropriate actions in relation to her situation. The applicant said she would also testify that Mr. Abbott made statements to her that he would never make to a male TPA member, statements such as “it is time to pack it in” and “the commander can do whatever he wants”. She also stated that, when she approached Mr. Abbott, she had the feeling that he was frustrated with her, that he found her overly sensitive and that he implied that she brought situations upon herself due to her actions. According to the applicant, the TPA would not treat complaints by a male member with such indifference. The applicant also said she would rely upon the fact that the TPA is a male-dominated union and allegedly known to be an “old boys’ club”.

analysis

16The Tribunal has held that it does not have jurisdiction over whether a union has adequately represented a member. The Tribunal has consistently held that even a union’s failure to act on behalf of a member does not by itself amount to a breach of the Code, absent some factual basis to establish discrimination or reprisal. Traversy v. Mississauga Professional Firefighters’ Association, 2009 HRTO 996 at para. 33.

17In the circumstances of this case, I find that the applicant has not pointed to sufficient evidence that could lead the Tribunal to find that the union treated her differently in the representation it provided to her. It was clear at the hearing that the applicant is dissatisfied with the representation she received from the TPA. This is also clear from the fact that she filed a duty of fair representation complaint against the TPA a few days before filing her complaint with the Tribunal.

18The Tribunal has frequently held that 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 in the Code. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389. At the hearing, the applicant made assertions that the TPA failed to take appropriate action in her case due to her sex. However, I find that she did not point to any evidence that would be capable of supporting her assertions that she experienced discrimination by the TPA. The fact that the TPA is a male dominated union is not enough to establish discrimination in the applicant’s particular case. The applicant provided no other information, beyond her own conclusions, from which reasonable inferences can be drawn to support the applicant’s belief that her sex was a factor in the TPA’s actions or inactions in relation to her case.

19For these reasons, I find that the applicant’s Application as against the TPA has no reasonable prospect of success.

Response by TPSB

20On June 28, 2013, the TPSB filed a Form 2 Response in which it sought an early dismissal of the Application against it due to a civil claim that had been filed by the Applicant.

21In response, the applicant confirmed that the she took no action on the civil claim and that it was dismissed administratively by the court on August 5, 2013. In dismissing the claim, it does not appear that the court finally determined whether any of the rights in issue were infringed.

22In these circumstances, the Tribunal denies the TPSB’s request to dismiss the Application.

ORder

23For the reasons set out above, I find as follows:

a. The applicant’s Application as against the TPA is dismissed.

b. The TPSB’s request to dismiss the Application is denied.

c. The TPSB is directed to file a full Response to the Application no later than 35 days from the date of this Interim Decision.

24I am not seized.