HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Arlene Penelope Noel
Applicant
-and-
Service Employees International Union Canada Local 1
Respondent
DECISION
Adjudicator: David Muir
Indexed as: Noel v. Service Employees International Union Canada Local 1
APPEARANCES
Arlene Penelope Noel,
Self-represented
Service Employees International Union Canada Local 1, Respondent (Aleisha Stevens, Counsel)
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of race and colour.
2This case was initially scheduled for hearing on June 11 and 12, 2012. At the outset of the hearing the parties agreed to participate in mediation/adjudication and a related case involving the applicant’s employer was resolved without the need of a hearing.
3The hearing then convened to consider an issue which I had raised with the parties in a Case Assessment Direction (CAD) dated June 7, 2012 – that is whether the Application as against the respondent should be dismissed because it had no reasonable prospect of success because the allegation against the respondent was that they did not adequately support the applicant and did not file a grievance on her behalf. As I pointed out in the June 7, 2012 CAD the Tribunal has held in many cases that the mere failure to file a grievance is not discrimination under the Code. See for example Traversy v. Mississauga Professional Firefighters Association, 2009 HRTO 996 and more specifically Khaiter. V York University Staff Association, 2008 HRTO 241. In order to succeed in her claim against the respondent union the applicant must show that a factor in their response to her was the applicant’s race and colour.
4After hearing the submissions of the parties I determined that the most fair just and expeditious manner of proceeding would be to call on the applicant to make her submissions first and point to her evidence that would support her allegation that the actions of the respondent union were based on her race or colour. The applicant stated that she could not proceed and asked for an adjournment. The respondent union opposed the request. I determined that an adjournment was not justified in the circumstances. I indicated to the parties that they had each attended at the hearing with the obligation to present their entire case. Given that I was merely directing the applicant to focus her submissions on what evidence she had that would support her contention that the Code had been violated and had already put the parties on notice that I was concerned about this issue, I was not satisfied that it would be unfair to proceed.
5The applicant became increasingly emotional and by large non-responsive. The applicant asked repeatedly to be excused. She indicated that she wished to consult with her legal support person but would not identify who that was or when such consultation would take place. After several minutes it became clear that the applicant could not meaningfully participate in the hearing and the applicant’s adjournment request was granted over the objection of the respondent which not unreasonably took the position that the parties had come prepared for a full hearing and there was no good reason not to proceed.
6In a subsequent CAD issued to the parties on July 19, 2012, I directed that a summary hearing be held by telephone conference call to determine whether this Application should be dismissed in whole or in part because it has no reasonable prospect of success. This hearing took place on January 9, 2013 as scheduled.
7Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:
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.
19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.
8Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:
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.
9The applicant’s allegations as against this respondent are that its staff inadequately represented her after what she considered to be an unsatisfactory resolution of a workplace dispute between herself and a colleague. The applicant had complained to her employer about what she perceived to be harassment of her by a co-worker. An investigation was begun and the respondent participated in that investigation. The harassment in the workplace allegedly continued and a further complaint was made by the applicant, but the applicant declined to participate in a further investigation. The applicant on her own initiative transferred away from the unit where the workplace harassment had taken place. The applicant’s allegations against this respondent relate to her subsequent efforts to contact the respondent and allegedly file a grievance in respect of something to do with the prior workplace conflict and the employer’s investigation of it.
10In this case the applicant alleges that the respondent was insufficiently supportive of her in the aftermath for her of alleged workplace harassment by a co-worker and the employer’s investigation of it. The applicant alleges that after she safely transferred out of the department where the conflict had taken place she contacted the respondent on three occasions to discuss the possibility of filing a grievance. In response to her first inquiry she was advised to contact a steward at her new location. She did so and met with a steward who advised her that he could not handle her case but referred her to the chief steward. The applicant did not want to deal with this individual and attempted to contact another union steward, F, without success.
11The Application is dismissed. For purposes of this Decision I have assumed that all of the applicant’s allegations are capable of proof although I also note that the respondent denies that it acted in any way improperly or failed to adequately represent the applicant at any time.
12As previously indicated the mere failure to act on the part of a trade union is insufficient on its own to establish a violation of the Code. In order to be successful in establishing a violation of the Code there must be evidence that a factor in a trade union’s decision not to file a grievance, for example was a Code prohibited ground. Even assuming that the applicant’s allegations were proved there is little in her narrative of complaints other than perhaps an alleged failure on the part of F, to respond to an email requesting a meeting which could be considered to be differential or disadvantageous treatment. At most the applicant appears to have made three attempts to contact the union, each of which except allegedly the last one was responded to in some fashion
13More importantly there are no facts alleged by the applicant from which it might be inferred that a factor in the approach the respondent took to the applicant or the alleged failure of F to respond to the applicant’s email, was her race or colour. In the applicant’s own submission she has no real idea why the respondent did not, in her view, adequately represent her. She has no more than an apparently sincere belief but it is based on nothing more than speculation or a suspicion. This is simply inadequate to require the parties to participate in a full hearing on the merits. In the end there is no evidence that the applicant can point to from which an inference might be drawn that a factor in the manner in which she was responded to by the respondent’s staff was informed in whole or in part by her race or colour. In my view this Application has no reasonable prospect of success and accordingly it is dismissed.
Dated at Toronto, this 11th day of January, 2013.
”signed by”
David Muir
Vice-chair