HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Roye Bello
Applicant
-and-
Amalgamated Transit Union - Local 113,
Ian MacKay, Frank Grimaldi and Bob Kinnear
Respondents
DECISION
Adjudicator: Paul Aterman
Date: March 13, 2013
Citation: 2013 HRTO 426
Indexed as: Bello v. Amalgamated Transit Union, Local 113
APPEARANCES
Roye Bello, Applicant
Cecil Norman, Counsel
Amalgamated Transit Union - Local 113, Ian MacKay, Frank Grimaldi and Bob Kinnear, Respondents
Katherine Rowen, Counsel
Introduction
1The applicant self-identifies as a Black African man from the Congo. He worked for the Toronto Transit Commission from April 2007 until October of 2011, and was a member of the respondent union.
2From 2009 until he was terminated in 2011 the applicant was disciplined many times for a broad range of workplace infractions. The respondent union represented him in various grievance proceedings. Ultimately, the applicant was terminated. The union grieved his termination and the grievance was resolved through mediation. It resulted in a settlement which led to a withdrawal of the grievance, the applicant’s resignation from employment and a full settlement of all issues between the applicant, the union and the employer.
3The settlement agreement contains a clause which reads, in part, as follows:
The Union and the Grievor acknowledge that they are freely entering into these minutes relying upon their own sources of information. The Grievor further acknowledges that he has been fully and fairly represented by the Union in concluding these minutes and in the handling of his grievance.
4The applicant alleges that throughout the various disciplinary proceedings he underwent, the union and the personal respondents failed to represent him adequately for reasons which are discriminatory. He has brought this 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 membership in a vocational association because of race, colour, place of origin, ethnic origin, and ancestry.
5A summary hearing was held on March 8, 2013 to determine whether the Application has any reasonable prospect of success, as well as to determine whether some or all of the allegations should be struck out for delay. For the reasons set out below the Application is dismissed as it has no reasonable prospect of success.
submissions
6The applicant argues that there is no delay because the Application was submitted within a year of the signing of the settlement agreement. He made no submissions with respect to the timeliness of any of the alleged incidents of discrimination which predate the settlement agreement.
7In relation to the issue of whether the Application has a reasonable prospect of success, the applicant asserted that race, colour, place of origin, ethnic origin, and ancestry were factors in how the union and personal respondents represented him. He did not point to any evidence to support these assertions.
8The respondents argued that the allegations of differential treatment of the applicant by the union and its officers date back to 2009. They argue that each instance of discipline is a discrete incident and that any alleged discrimination in representing the applicant must also be seen as such. In light of this, the respondents argue that all the alleged incidents with the exception of the signing of the settlement agreement are out of time and that the applicant has not provided any good faith explanation for the delay.
9Regarding the issue of whether the Application has a reasonable prospect of success, the respondents argue that the applicant has failed to provide particulars of alleged discrimination in relation to any of the incidents. They say that in the absence of any indication that the allegations are supported by evidence, they are merely assertions of discrimination.
analysis and decision
10Rule 19A.1 reads:
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.
11The inquiry during a summary hearing was set out in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9 as follows:
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.
12As the Tribunal noted in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17:
The Tribunal does not have the power to deal with general allegations of unfairness. 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 in the Code or the intention by a respondent to commit a reprisal for asserting one’s Code rights.
13In this Application the applicant provides details surrounding each incident of discipline and then repeatedly asserts his belief that the respondents discriminated against him on the prohibited grounds noted above. At no point does he provide particulars to support these assertions. He does not identify any specific incidents, statements or documents that might provide an evidentiary foundation sufficient to move his Application beyond mere speculation and unsupported accusations of discrimination. For these reasons the Application is dismissed.
14Having made this determination, it is not necessary for me to consider the issue of delay.
Order
15The Application is dismissed as it has no reasonable prospect of success.
Dated at Toronto, this 13th day of March, 2013.
”signed by”
Paul Aterman
Vice-chair