HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mohamed Zakir Zafur Applicant
-and-
Duane Reay Respondent
-and-
Canadian Auto Workers Union, Local 1285 and Chrysler Canada Inc. Intervenors
AND B E T W E E N:
Mohamed Zakir Zafur Applicant
-and-
John Breslin Respondent
-and-
Canadian Auto Workers Union, Local 1285 and Chrysler Canada Inc. Intervenors
DECISION
Adjudicator: Alison Renton Date: March 18, 2013 Citation: 2013 HRTO 408 Indexed as: Zafur v. Reay
APPEARANCES
Mohamed Zakir Zafur, Applicant Self-represented
Duane Reay, Respondent Self-represented
John Breslin, Respondent Self-represented
Canadian Auto Workers Unions, Local 1285, Intervenor Leon Rideout, Representative
Chrysler Canada Inc., Intervenor Christopher Dunn, Counsel
Introduction
1The applicant filed two Applications on January 14, 2011 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to membership in a vocational association because of race, colour, ancestry, place of origin, creed, age, and reprisal. File 2011-7850-I names Duane Reay (“Reay”) as the respondent and file 2011-7851-I names John Breslin (“Breslin”) as the respondent. It appears that both Reay and Breslin are union officials within the applicant’s workplace.
2In January 2012, the Canadian Auto Workers Union Local 1285 (“the union”) and Chrysler Canada (“the employer”) separately filed Requests to Intervene (“the Requests”) in both Applications.
3After an unsuccessful mediation, the Tribunal issued a Case Assessment Direction dated May 31, 2012, in which it determined, on its own initiative, that the Applications would be consolidated and that a summary hearing would be scheduled to determine whether or not the Applications should be dismissed, in whole or in part, on the basis of delay and/or on the basis that there is no reasonable prospect that they will succeed (“the hearing”). The issue of the union’s and the employer’s Requests would be addressed at the beginning of the hearing. The summary hearing was held on September 11, 2012 and all the parties participated. As the parties did not oppose the Requests, the union and the employer were added as intervenors and the style of cause is amended accordingly.
allegations against the respondents
4Based upon the allegations in his Applications, materials filed by the applicant and his allegations made during the hearing, the applicant’s allegations against the respondents can be summarized as follows:
a. In 1997 or 1998, the applicant had a mechanic’s licence and did not get a mechanic’s position. He filed a grievance, which Reay withdrew. Ultimately the grievance was reinstated by the union and the applicant was successful with the grievance. Since then, the respondents have been “trying to get back at him”;
b. The respondents prefer those with a Scottish or British Isles background over the applicant, by giving a trades ticket in 1998 to someone with a Scottish background and recently appointing a “white” person
c. In 2006 the applicant was terminated and the respondents did nothing to prevent his termination. The applicant grieved his termination and was subsequently reinstated;
d. In March 2008, the applicant requested time to attend union training classes. His request was initially approved; however, the respondents heard about the approval and had it revoked, although the applicant understood that he could take time off for other reasons;
e. From 2008 until 2010, Reay and supervisors would walk by the applicant while he was sitting and having lunch, and tell him that it was not the applicant’s lunch break and to go back to class;
f. In October 2009, during a human resources meeting the applicant attended, at which Breslin represented him, Breslin sided with the employer;
g. On an undisclosed date, Breslin told the applicant that the applicant did not require union representation;
h. The respondents cannot accept the fact that the applicant is 55 years of age and cannot work like he is 20 or 30 years of age;
i. The applicant appealed the decision of the respondents to rescind his trade’s card;
j. While annually the applicant had approved time off to attend a WSIB conference, in 2010 Reay had his leave of absence request turned down at the plant level;
k. From 2008 until October 2010, the overtime coordinators told him that the respondents would not hand over the applicant’s work schedule, which required the applicant to find out on his own if he was working overtime;
l. In November 2010, the applicant was in the WSIB office, and Reay came in looking for some information. The applicant handed the information, which was confidential, to another person and Reay commented, “There is a big conspiracy to get Duffy Zafur at work”;
m. When the applicant complained that Breslin had discriminated against him, Breslin retaliated by lodging a complaint against him for “conduct unbecoming” which resulted in the applicant losing his WSIB position in June 2011; and
n. The union has removed “2 coloured persons”, one being the applicant and another person, from their positions within the union.
the applicant’s submissions
5The applicant submits that all of his allegations against the respondents are timely and constitute a series of incidents within the meaning of the Code. He waited more than one year before filing his Application, so that he could file one Application rather than a number of different Applications. The last issue occurred less than a year before the Application was filed. Since 1998, the applicant asserts that his allegations about the respondents have been reprisals against him. He provided details of his allegations against the respondents and other union officials.
6The applicant self identifies as being East Indian and Muslim. The applicant alleges that the respondents feel like they can do whatever they want to him. They treat him differently, subject him to a higher level of scrutiny, and have had him suspended and terminated because of his race, colour, place of origin and ancestry, the fact that he is outspoken and will point out when they are wrong. They are getting back at him for “being right” in 1998 with respect to getting the mechanic’s position. With respect to the ground of age, the applicant asserts that the respondents cannot accept the fact that he is a 55 year old man and he cannot work like a 20 or 30 year old person. He asserts that the respondents require that he and another individual, who is 61 years of age, keep up with and perform as well as the three younger people in their training class. The applicant received a score of 68% on a test and is proud of what he has done. He asserts that he requires more tutoring and training from a “proper institution and not in-class training”.
7With respect to reprisal, the applicant alleges that the respondents’ actions stem from the discipline that was issued in 1998 as well as his 2006 termination. The most recent example is in June 2011 when the applicant lost his WSIB position after filing his Application. He alleges that after filing his Application against Breslin, Breslin filed a complaint to have him removed from his WSIB position. The applicant further alleges that he is constantly being watched.
8During the hearing, the applicant advised that he did not want to proceed with the ground of “creed”. Accordingly, that part of his Application will not be considered. He also confirmed that he was not making any allegations against the employer.
the respondents’ submissions
9The respondents both submitted in their Responses that many of the applicant’s allegations are untimely. Some of the allegations, for example, the 1998 licence issue and the 2006 termination, have been resolved in other proceedings and accordingly section 45.1 of the Code applies. During the hearing, the respondents identified that the applicant referenced an individual, Bob, who was now deceased, and others who have retired, which prejudices them. Breslin submitted that some of the allegations, such as those in 1998, occurred before he became a union official.
10The respondents also take the position that the applicant’s allegations against them do not raise a prima facie case of discrimination. Reay admits that he did say “a conspiracy comment” because the applicant was showing some attitude, but submits that this does not amount to a violation of the Code. Breslin stated that he made a mistake when he initially approved the applicant’s skilled trades card, but the revocation of the card was ultimately determined at the national level of the union and not by him.
the union’s submissions
11The union also submits that many of the applicant’s allegations are untimely and have been dealt with in other proceedings. The union points out that with respect to the applicant’s trade card being rescinded, that was a decision made by the national level of the union, consisting of an independent panel of three persons chosen from across Canada, and was not a decision made by the respondents. The applicant was removed from the WSIB position because of a decision made by the local union president and the chairperson based upon complaints about the applicant’s performance by other members. Included were allegations that the applicant was not performing his duties, but was watching TV on a TV in his office.
the employer’s submissions
12The employer submits that any allegations before 2010 are time barred. As the applicant did not raise any issues with the employer about the respondents harassing or discriminating against him, or the conduct of its supervisors, the employer is severely prejudiced in responding to the allegations. While the employer is not named as a respondent, the allegations have an impact on its reputation.
13With respect to any allegations that are timely, the employer submits that there is no reasonable prospect that they will succeed.
Delay in filing the application
14Section 34(1) of the Tribunal requires that an Application be filed within one year from the date of the last incident upon which the Application is based. It states:
34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
15In order to satisfy the Tribunal that the delay was incurred in good faith, an applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner. The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances that justify exercising the discretion under section 34(2) of the Code. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.
16In determining whether allegations fit within a “series of incidents” within the meaning of section 34(1), the Tribunal has stated, in Garrie v. Janus Joan Inc., 2012 HRTO 1955 at para. 30:
A review of the Tribunal’s jurisprudence under section 34(1) suggests that the following factors will generally be relevant to the Tribunal’s determination of whether or not allegations of discrimination are timely because they relate to a “series of incidents”:
a. What is the last alleged incident of discrimination to which the Application relates?
b. Do the allegations relate to a series of separate and independent incidents of discrimination or do they relate to the continuing effect of a single incident of discrimination?
c. What is the nature or character of the alleged discrimination and is it part of a pattern or series of incidents of a similar nature or character?
d. What is the temporal gap between alleged incidents of discrimination?
17The Tribunal has found that a temporal gap of more than one year often breaks the series. See Chintaman v. Toronto District School Board, 2009 HRTO 1225 and Theriault v. Toronto Police Services, 2012 HRTO 2163.
18In reviewing the dates of the allegations contained in the Applications, I find that there is a gap of more than one year between the allegations set out in para. 4 c) pertaining to his termination and reinstatement in 2006 and those set out in 4 d) pertaining to March 2008. The applicant says that rather than filing a number of different Applications, he waited and filed one Application consisting of a number of allegations over a long period of time. While practically that may be easier for an applicant, this explanation is not sufficient to constitute a good faith explanation for the delay in filing an Application as required by section 34(1) of the Code and accordingly the allegations prior to March 2008, with the exception of the allegation in 4b) that a “white” person recently was hired, are dismissed as being untimely. In determining that the pre-March 2008 allegations are untimely, I need not determine any section 45.1 issues that may have arisen, and/or the impact of signed minutes of settlement pertaining to the applicant’s termination and reinstatement. I also do not need to determine whether or not the respondents have experienced any prejudice as a result of the delay. See: Esanu v. Georgetown Men’s Non-Contact Hockey League, 2009 HRTO 579.
19Further, I need not consider whether the remaining allegations (para. 4 c) to n)) are outside the mandatory one year limitation period in section 34(1) of the Code, as I find, for the reasons set out below, that they have no reasonable prospect of success and as such cannot continue.
reasonable prospect of success
20Rule 19A.1 of the Tribunal’s Rules of Procedure provides:
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.
21In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paras. 8-10:
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.
22In determining whether an Application has no reasonable prospect of success, an Application must at least contain sufficient facts that, if accepted as true, could reasonably lead to a finding of discrimination. Otherwise, an Application has no reasonable prospect of success at a hearing and will be dismissed. See Macyshyn v. Toronto Catholic District School Board, 2011 HRTO 1068.
23The Tribunal does not have the power to deal with general allegations of unfair treatment by unions. The Tribunal can only deal with allegations of discrimination or harassment which are based on the prohibited grounds set out in the Code. In keeping with this, the Tribunal has found that it is not discrimination for a union 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 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.
24With respect to the allegations contained at para. 4 b (pertaining to the hiring of a “white” person), c) to l), as set out above, with the exception of 4m and n) (the alleged reprisal), I find that they have no reasonable prospect of success and they are dismissed. These allegations consist of bald assertions that the respondents’ conduct was discriminatory towards the applicant on the basis of colour, race, ancestry, place of origin, or age. Apart from claiming that the respondents give preference to those from the British Isles and that he is expected to keep up with the “younger” employees in his class, he has not pointed to any evidence to link his allegations to any Code ground and this is insufficient to establish a violation of the Code and are dismissed as having no reasonable prospect of success.
25In fact, in many allegations, such as Reay and supervisors walking by him and telling him to get back class, Breslin siding with the employer during a meeting with human resources, and his request for union time off during March Break being revoked, there are only bald assertions without any link as to how they would establish a violation of the Code. Without such a link, there is no reasonable prospect that these allegations will succeed and they are dismissed on that basis. As there are no further allegations against Reay, the Application filed against him is dismissed.
26With respect to the allegation contained in para. 4 m and n), that Breslin reprised against the applicant after the Application was filed by having him removed from his WSIB position, and the union removed “2 coloured persons”, I find that these too have no reasonable prospect of success and are dismissed. During the hearing, the applicant failed to address the explanation provided by the union in its Request, that the decision to remove the applicant from his WSIB union position was made by the union local president and chairperson, and not by Breslin, and was made because the applicant was not fulfilling his responsibilities in the WSIB position but was, instead, watching television in his office. The applicant’s failure to specifically address this explanation, and leaving only his bald assertion that Breslin retaliated against him by removing him from his WSIB position, is insufficient to establish a link between his allegations and a Code ground. Furthermore, the applicant did not name the union as a respondent and his did not file his Application on behalf of anyone other than himself. Accordingly, there is no reasonable of success for these allegations and they too are dismissed.
order
27The Applications are dismissed.
Dated at Toronto, this 18^th^ day of March, 2013.
”signed by”
Alison Renton Vice-chair