Nespolon v. Flex-n-Gate, Veltri Canada – Howard Division, 2013 HRTO 626

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brenda Nespolon Applicant

-and-

Flex-n-Gate, Veltri Canada – Howard Division and Canadian Auto Workers – Local 195 Respondents

INTERIM DECISION

Adjudicator: Maureen Doyle Date: April 15, 2013 Citation: 2013 HRTO 626 Indexed as: Nespolon v. Flex-n-Gate, Veltri Canada – Howard Division

APPEARANCES

Brenda Nespolon, Applicant Christine Lundy, Representative

Flex-n-Gate, Veltri Canada – Howard Division, Respondent Clifford Hart, Counsel

Canadian Auto Workers – Local 195, Respondent Jesse Gutman and Piper Henderson, Counsel

Introduction

1This is an Application filed on February 14, 2012, 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. Originally, the applicant also alleged discrimination with respect to employment because of creed, but has confirmed that she does not wish to pursue a claim of discrimination on the basis of creed.

2In a Case Assessment Direction (“CAD”), dated March 22, 2012, the Tribunal directed that a summary hearing be scheduled to consider whether the allegations against the respondent Canadian Auto Workers – Local 195 (the “union”) should be dismissed as having no reasonable prospect of success.

3For the reasons that follow, I find that this Application, as against the union, has no reasonable prospect of success, and it is dismissed as against the union.

ANALYSIS

Summary Hearings

4In 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.

5In 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

6The applicant indicates that she has a permanent disability due to nerve damage in her foot following a work-related accident and that as a result she cannot put weight on her left foot or wear the safety shoes required to work at her old position in the company’s plant. She alleges, among other things, that she was not given “real work” to do, and that there was “a continuing lack of solid information about what I was supposed to do, what my hours were, and how my wages were to be paid”. She has also alleged that she is not receiving necessary accommodation to permit her to attend medical appointments.

7On April 20, 2012, the applicant filed a Request for Order During Proceedings (“RFOP”), seeking to amend her Application and stating that the amendments are in the nature of “bringing the…Application up to date”. The allegations which are particularized in the RFOP would otherwise be timely. They appear to be of the same nature as the allegations made by the applicant in her original Application. The respondent employer Flex-n-Gate, Veltri Canada – Howard Division (the “employer”) has consented to the amendments. The union has not objected to the amendments. The Request to Amend the Application is allowed.

8In her Application and amendments, the applicant makes several specific allegations against the union, as follows:

• She alleged that the union representative did not phone her during the holidays between December 2010 and January 2011 to advise her of a mix-up with her pay which had resulted in an overpayment by 20 hours due to her receipt of Workplace Safety and Insurance Board (“WSIB”) benefits, though she alleges he was “supposed to”;
• She alleged that on January 4, 2011, the union representative told her she was not even supposed to be at work that day, as she had been laid off;
• Between September 30 and October 27, 2011, she telephoned her union representative several times to ask about plans for her work and hours, but got no answer. She alleges she frequently saw him in the employer’s Human Resources office and on at least one occasion, found him eating his lunch there. She also alleges she saw a second union representative in the employer’s Human Resources office more than once;
• On November 3, 2011, she went to the employer’s Human Resources office to advise that she had to leave work due to pain. She states that her union representative was there, so she “asked to talk to him instead”. She alleges that he told her it would not be a problem for her to leave, “but the record showed that [she] already had three leaves “that were the wrong colour”. She alleged that he said “it would be fixed”, but that she is not aware of him having done so. She alleged that he helped her collect her belongings from her work station, and that he walked her to the door. She alleged that while she was driving home, the employer’s Human Resources officer phoned her and yelled at her, telling her she did not have permission to leave and later advising her that the union representative did not have the authority to give her permission to leave;
• She also alleged that she requires new gloves on a regular basis due to skin problems. She alleged that on January 12, 2012, she asked her supervisor for new gloves but did not receive them and that when she complained about this to the union representative the next day, she was told gloves would be provided. She alleges that the union representative did not arrive at her work area until three hours later with the gloves, and that when he arrived he asked her what she would take to leave the company, and that she should start to think about it;
• She alleges that the telephone was removed from her work area on February 20, 2012 and that on February 23, 2012, she found her union representative in the employer’s Human Resources office with a member of the employer’s Human Resources Department, “Shelly”. The applicant alleges that she said she needed to talk to him and that her representative and another individual came to her work area and advised that they did not know who had taken the phone, but that it had been removed because “Shelly” had said that the applicant was on the phone too much. She alleged that she then told them that she was being refused permission to attend her doctor’s appointments during working hours, and that they told her they would talk to someone and get back to her, but they did not;
• She alleged that in March 2012, she told her union representative about her concern regarding the wage level at which she was being compensated by the WSIB. She alleged that he explained that she should have been entitled to the newly negotiated wage she would have been paid had she not had the workplace accident, rather than the amount she was receiving from WSIB. She alleged that the union representative advised her he would “talk to the company”, but that when he came back to her he advised her that the only way she could earn the new, higher wage, was to return to the plant floor and “prove she could do the job”. She alleged that he also told her to obtain medical information supporting her claims for her right hand and arm, or the employer would not be obligated to accommodate her;
• The applicant alleged that she learned on March 16, 2012, that the day was scheduled as a “voluntary day off”, for lack of work. She alleged that she had not been informed of the opportunity to take the day off because the list which employees could sign to take such a day off was posted only in the plant area where she could not go without the necessary safety shoes. She alleges that a union representative produced the list for her to sign and she took the day off. She also alleged that she subsequently learned that opportunities to leave early on March 8 and 9, 2012 had been similarly posted;
• She alleged that on March 18, 2012, a cart full of parts for her to inspect was left blocking the doorway to her work area and that she tried several times to talk to union representatives about it but they ignored her. She alleged that she saw another individual from the union and he advised her to contact the Health and Safety Representative in the morning;
• The applicant alleges that on March 22, 2012, a co-worker advised her that there was a union meeting scheduled for March 25, 2012, and that there were notices about the meeting posted in the plant, but as she could not go into the plant, she had not seen them. She alleged that “no one from the union made the effort to tell her about the meeting”, noting that she had seen two other union individuals that day but that they had said nothing about the meeting; and
• She alleged that on March 30, 2012, a union representative advised her of an upcoming union meeting scheduled for April 1, 2012. She alleged that he also told her she should receive a telephone call from someone in the union telling her of the meeting, but that she never did receive such a call. She states that she was able to attend the union meeting.

The applicant’s submissions

9At the summary hearing, the applicant’s representative argued that the allegations of discrimination by the union can be broken down into five categories, as follows:

1. Failure to inform the applicant of decisions or actions taken by the employer that created situations that caused harm to the applicant due to her disability or did not take into account circumstances that were due to her disability, in particular by failing to advise her of a pay mix-up, failure to advise her of a “lay-off”, failure to give her information she was requesting for a return to work in September and October, 2011;
2. Providing her with incorrect or misleading information, in particular on November 3, 2011, when a union representative told her she could leave work early due to a problem related to her disability, even though he did not have the authority to do so and it “got her into trouble with her employer”;
3. Making statements that seemed to her to be made on behalf of the employer, in particular in November 2011, cautioning her about taking time off due to her disability because she had leave notations on her record which were “the wrong colour”; in January 2012, asking her what it would take for her to leave the company; and in March 2012, when she requested that the wage level at which she was being compensated by the WSIB be adjusted, the union representative told her that it would not be adjusted until she returned to work on the floor, a thing she could not do due to her inability to wear safety shoes;
4. Delaying the provision of accommodation, in that on January 12, 2012, when it took several hours for the union to bring her the new gloves she needed as an accommodation of a disability; and
5. Failure to provide her with information regarding the union meetings on March 25 and April 1, 2012.

10Pointing to the evidence the applicant would rely upon to support her allegations against the union, the representative indicated that the applicant would testify as to the truth of the above-noted allegations and that she would call at least one other witness. It was explained that this witness would testify about the “working environment” and “requests to the union to get improvements to the working environment”, about the fact that there were opportunities for voluntary days off which she did not get immediately and about having informed the applicant of the union meetings.

11In her written submissions provided prior to the summary hearing and in response to the Tribunal’s CAD which stated that the Tribunal “has held that it is not discrimination for a union or association to decide not to file or pursue a grievance, unless the reason for doing so was based on one of the grounds in the Code”, the applicant’s representative argued that this line of reasoning does not apply, as the Application as against the union “was not based on any action relating to a grievance. Rather, it was based on failures to act and on actions and comments made by the union stewards with whom the applicant had dealings that served to support and reinforce the discriminatory actions of her employer directed against her.” She also referred to “apparent collusion”. She submitted that according to Traversy v. Mississauga Professional Firefighters’ Association, 2009 HRTO 996 (“Traversy”), there must be an “assertion of differential treatment and not merely a failure to act” and she submitted that that the applicant was subject to discriminatory treatment by the union due to her disability.

12Further, she cited Rastin v. Electro-Motive Canada, 2010 HRTO 1793, in which the Tribunal agreed to add the union as a respondent. In that case, she asserts, the issue was alleged discrimination with respect to the assignment of overtime, which was coordinated by the union and the employer, pursuant to the collective agreement. The representative submitted that here, “the issue is workplace discrimination based on the assignment of modified work, with the participation and intermediation of the union, and with actions or failures to act on the part of the union that affect the applicant’s ability to be fully and appropriately accommodated at work”.

13Finally, she cited Stewart v. Ontario (Children and Youth Services), 2011 HRTO 864, stating that as the Tribunal added the union as a respondent in that case, having determined that there were facts, which if assumed to be true, could lead to a finding that the union had breached the applicant’s rights under the Code, the Tribunal should permit this Application as against the union to continue as the allegations against the union “would lead to a finding” that the union breached her rights under the Code.

The union’s submissions

14At the summary hearing, the union submitted that the allegations against the union are in the nature of complaints regarding union representation and are not properly before this Tribunal, but should have been put before the Ontario Labour Relations Board for consideration instead.

15With respect to the allegations referenced in “category 1”, the union submitted that there is nothing in these allegations which would establish a breach of the Code and that they do not relate to differential treatment of the applicant in breach of the Code. The union submitted that with respect to “voluntary days off” not made available to the applicant, it is not at all clear that the union has a role in the direction of the workforce, or in communicating with or directing the workforce. The union also submitted that if it failed to advise her that other workers performing different duties were given the choice of going home, it has not violated the Code in not telling her about other workers’ situations which may not even have been relevant to her in the duties she was performing. In any event, the union submitted, a failure to communicate with the applicant is not linked with her disability, other than the fact that by virtue of her disability she was performing different work, and this is not an indication of differential treatment. With respect to the allegation that the union did not return her calls, the union also offered a different version of the facts, indicating that the union representative always returned her calls except when she was at work on the plant floor.

16It submitted that the allegation referenced under “category 2” relates to advocacy issues and the question of whether or not the union has adequately represented her.

17With respect to the allegation that the union representative erroneously advised her she could leave the workplace, the union submitted that the information the union representative provided to her was provided in good faith. It was not an intentional act and was in fact one which resulted in the union representative himself getting into trouble with the employer.

18With regard to the allegations under “category 3”, it submitted that these relate to allegations of a failure to act, as in Baylet v. Universal Workers Union, 2009 HRTO 700 (“Baylett”). It noted further that according to Boyd v. Toronto (City), 2010 HRTO 607, the union is not liable for the ultimate accommodation of the employee by the employer.

19The union cited Traversy and submitted that it is up to the applicant to establish a prima facie case of discrimination, but she has not done so. It cited paragraph 33 and 48 of Traversy, noting that poor conduct by the union, or a failure to do more, is not discrimination:

…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 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…There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.

Essentially, the applicant asserts that the Association could have done more. Whether or not that is the case, the evidence does not support the conclusion that any failure to ‘do more’ was discriminatory. There is no evidence that any alleged deficiency was different from the Association’s advocacy on behalf of other members with or without a disability.

20With regard to the allegations referenced in “category 3”, the union submitted that these allegations are similar to the allegation in “category 2” and that the union representative provided information in good faith. If the alleged comments were made, the union submitted that they would have been comments between the applicant and the union representative, in the nature of providing a caution and in the nature of seeking to better understand her position and better advance her interests. The comments, it submitted, would have been made in the context of the union filling its obligations as her representative association.

21With regard to the allegations referenced in “category 4”, the union submitted that the allegation that the union representative delayed in providing the applicant with the gloves she required to work, but that according to the particulars of the applicant’s allegation, the gloves were delivered to her within a reasonable period of time. The allegation, it submitted, appears to imply bad faith, without proving it. The union submitted that the facts as stated by the applicant indicate that the union was trying to aid in the accommodation process.

22With regard to the union’s role and responsibility in workplace accommodation, the union cited Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 (“Renaud”), stating that it could only be found to be liable if it (i) participated in a rule which has a discriminatory effect on the applicant, or (ii) if it impeded the employer’s efforts to accommodate the worker.

23Additionally, with respect to the allegations referenced in “category 5” of allegations, the union noted that the applicant had alleged that the union had discriminated against her in employment, pursuant to s. 5 of the Code, though she had not alleged that the union had discriminated against her in her membership in a vocational association, pursuant to s. 6 of the Code, but that it would respond to her allegations regarding not being informed of a meeting nonetheless.

24The union submitted that the allegation that it had not informed her of meetings is unsupportable, as in both cases, she was personally advised of the meetings by other union representatives and attended and participated in both meetings. The union asserted that the meetings were both hastily scheduled ratification meetings. The union submitted that though she was not informed by the particular union representatives she expected to be informed by, she was informed by alternate union representatives. The union submitted that the manner in which she was informed of the meetings is not the issue in any event, as in both cases she was properly informed and attended. The union submitted that there was no discrimination in the way in which she was informed, as a different form of communication with her was necessary as she had to be personally informed due to the fact that she was not on the plant floor.

25With regard to the applicant’s reference to “apparent collusion” between the employer and the union, the union submitted that the applicant’s suspicion has been presented as not solidly founded.

26Summing up, the union submitted that as in Gungor v. Canadian Auto Workers Local 88, 2011 HRTO 1760 (“Gungor”), the allegations relate to the representative character of the union and they are not properly before this Tribunal, but would more properly form the basis for a complaint to the Ontario Labour Relations Board regarding representation. The allegations, it submitted, are not with respect to Code-prohibited grounds. It submitted that there is no reasonable prospect of success for the allegations against the union.

The employer’s submissions

27The respondent employer supported the union in its submissions. It submitted that the applicant’s allegations, even if all of the facts are true, do not indicate a breach of the Code by the union. It agreed that the allegations are mostly of a representative nature and that a failure to communicate things to her immediately is not a violation of her rights or of the union’s obligations under the Code.

DECISION

28Section 5(1) of the Code states:

Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

29In what she refers to as “category 1”, the applicant’s representative submitted that the union’s failure to inform the applicant of decisions or actions taken by the employer was discriminatory. The allegations which appear to relate to this category are the allegations that the union did not inform her of a mix-up regarding her pay, a lay-off, an unpaid voluntary day off, and failure to give her information she was requesting for a return to work in September and October 2011. The applicant has pointed to no evidence to indicate that the union is responsible for informing her of a mix-up regarding her pay, nor has she pointed to evidence establishing a link between the union’s failure to do so and her disability. She alleges that the union did not inform her that she was not supposed to be at work on January 4, 2011, due to lay-off. She has not pointed to evidence establishing a link between the union’s failure to do so and her disability. Nor has she pointed to evidence she would rely upon to establish that the union’s failure to communicate this information was based on discriminatory factors. While the applicant may not be satisfied with the level of representation she received from her union, without such evidence, there is no reasonable prospect that the union’s failure to advise her of a mix-up in her pay or of her lay-off will be found to be discriminatory and the allegations relating to the union’s failure to so advise her are dismissed on that basis.

30Although her disability was the reason that she was not performing work in the plant, she has not pointed to evidence she would rely upon to establish that the union’s failure to inform her of a voluntary unpaid day off was due to improper considerations. Without such evidence, there is no reasonable prospect that the union’s failure to so advise her will be found to be discriminatory and the allegation is dismissed on that basis.

31Finally, while the applicant may not be satisfied with the level of representation she received with respect to obtaining information regarding a return to work in September and October, 2011, this is not sufficient to ground an allegation of discrimination contrary to the Code. In Gungor, the Tribunal cited Renaud as the “leading case regarding a union’s obligations and potential liability with respect to employment pursuant to the duty to accommodate under the Code” and commencing at paragraph 30, stated as follows:

In the Renaud decision, the Court held that a union which causes or contributes to a discriminatory effect on an employee because of a ground protected under human rights legislation incurs liability ‘with respect to employment’…However, the Court states that the union’s obligations with respect to employment arising out of duty to accommodate only arise if the union is a party to discrimination and that the union may become a party in two ways…

The first way that a union may become a party to discrimination is ‘by participating in the formulation of the work rule that has the discriminatory effect on the complainant’…

The second way that the Supreme Court held in Renaud that a union may be liable with respect to employment for a failure to accommodate is stated to occur “if the union impedes the reasonable efforts of an employer to accommodate”...

In such a situation, the Court states that it will be known that some condition of employment is operating in a discriminatory manner and the employer is seeking to remove or ameliorate the discriminatory effect. The Court held that a union becomes party to the discrimination ‘if reasonable accommodation is only possible with the union’s cooperation and the union blocks the employer’s efforts to remove or ameliorate the discriminatory effect’.

32The applicant has not pointed to any evidence of a provision in the collective agreement between the union and the employer that had a discriminatory effect on her. In addition, she has not pointed to any evidence that the union impeded or blocked the employer’s reasonable efforts to accommodate her needs. Generally, the role of the union requires it to be in regular communication with the employer and with its members. The applicant has made reference to the fact that she often found her union representatives in the office of the employer’s Human Resources personnel, and found one of them sometimes eating lunch there, and she stated that it is her belief that the union was in “collusion” with the employer. That there was “collusion” is her conjecture, and she has pointed to no evidence she could rely upon to establish such a fact. Without evidence of the union’s participation in the promulgation of a workplace rule which had a discriminatory effect on her, or without evidence that the union blocked the employer’s reasonable efforts to provide accommodation, there is no basis on which to establish union liability for a failure to accommodate her at work and there is no reasonable prospect of success in relation to her allegation that the union failed to provide her with certain information in September and October 2011. Accordingly, the allegations contained in “category 1” are dismissed.

33In what she refers to as “category 2” of the allegations, the applicant’s representative submits that the union violated s. 5 of the Code by providing the applicant with misleading information on November 3, 2011, when a union representative incorrectly told her she could leave work early due to a problem related to her disability. While she asserts that the reason she wanted to leave work early was related to her disability, the applicant has pointed to no evidence upon which she would rely to indicate that she was subject to differential treatment from the union representative because of her disability. Without evidence which makes such a link, this allegation has no reasonable prospect of success and it is dismissed.

34In what she refers to as “category 3” of the allegations, the applicant’s representative submits that the union violated s. 5 of the Code by making statements that seemed to her to be made on behalf of the employer, in particular, cautioning her on November 4, 2011 about taking time off due to her disability, asking her in January 2012 what it would take for her to leave the company, and in March 2012 advising her that her rate of pay from WSIB would not be adjusted until she returned to work on the plant floor. The applicant has not alleged that she asked for any grievances to be filed in respect of any of these comments, which “seemed to her to have been made on behalf of the employer”. I also note that she alleges that when the phone was removed from her work area in February 2012, the union representative told her that it was removed because a member of the employer’s Human Resources department determined she was on the phone too much. The subjects of adverse consequences related to her attendance, her continued employment, her rate of pay for WSIB and whether there was a phone in her work area were not areas within the union’s control. Where the union may have provided her with bad advice, where the union may not have provided her with any advice, where she may not have been pleased with a private conversation where her union representative attempted to discuss possible options with her, or where the union representative relayed information or inquiries from the employer, the applicant may have concerns regarding the representation she received from her union. However, the power of the 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 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.

35The applicant has not been able to point to evidence she would rely upon to establish that the union representative subjected her to differential treatment because of her disability, and accordingly, these allegations (“category 3”) also are also dismissed as having no reasonable prospect of success.

36What the applicant’s representative refers to as “category 4” of allegations is the allegation that it took several hours for the union representative to bring her the new gloves she needed as an accommodation of a disability. Having reference to the reasoning in Gungor and Renaud, the applicant has pointed to no evidence of a provision in the collective agreement between the union and the employer that had a discriminatory effect on her, nor has she pointed to any evidence that the union impeded or blocked the employer’s reasonable efforts to accommodate her needs. The employer is responsible for providing workplace accommodation and the applicant has pointed to no evidence that it was the union’s responsibility to provide gloves to her. The mere fact that it was the union representative who delivered the gloves she required, and that he delivered them several hours after she made her request, is not evidence she could rely upon to establish that the union impeded or blocked the employer’s reasonable efforts to accommodate. These allegations are dismissed as having no reasonable prospect of success.

37Finally, with respect to the allegations which the applicant’s representative refers to as “category 5”, namely, failure to provide the applicant with information regarding union meetings, I consider this allegation with respect to both sections 5 and 6 of the Code. Section 6 of the Code states:

Every person has a right to equal treatment with respect to membership in any trade union, trade or occupational association or self-governing profession without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

38The applicant alleged that union members were informed of meetings on March 25 and April 1, 2012 by means of a notice posted in the plant, and that as she was not in the plant, she did not see the signs. It is evident that as she was not actively at work in the plant, she would have to be informed of union meetings by a means other than a notice posted in the plant. She does not dispute that union volunteers advised her of the meetings, nor does she dispute that she was able to and did attend them. In respect of these allegations, she has pointed to no evidence of any disadvantage she suffered due to differential treatment, and without such evidence, her claim of discrimination either contrary to s. 5 or s. 6 of the Code has no reasonable prospect of success and these allegations are dismissed accordingly.

39Additionally, the applicant alleges that the union representative told her he would talk to someone about permission for her to attend doctor’s appointments during working hours, but did not get back to her. She also alleged that on November 3, 2010, her union representative told her he would “get her attendance record fixed”, but she is not aware of him having done so. She also alleged that a cart full of parts was left blocking her doorway on March 18, 2012 and that when she tried to talk to union representatives about this, they ignored her, until one of them advised her to contact the Health and Safety Representative in the morning. As the Tribunal stated at paragraph 18 in Baylet, “A claim of discrimination must go beyond the mere fact that a union did not act”. Again, while the applicant may have concerns regarding the level of representation she received, she has not pointed to evidence she would rely upon to establish differential treatment by the union, or that any differential treatment was due to her disability. Without such evidence, these allegations have no reasonable prospect of success and they are dismissed.

40Overall, the applicant’s allegations against the union, referenced by her under five categories, relate to allegations of a failed accommodation and a failure to advise her of two union meetings. They also include allegations of a failure to provide information, misinformation, bad advice and a failure to act or a failure to act promptly. The applicant has pointed to no evidence upon which she would rely to link the union’s actions with improper discriminatory considerations and therefore her allegations as against the union have no reasonable prospect of success. It is clear that she is not satisfied with the level of representation she has received from her union, but for all the foregoing reasons, I do not find that the allegations regarding the union’s failure to advocate sufficiently on her behalf or to inform her of union meetings are capable of providing a basis for imposing liability on the union for violating ss. 5 or 6 of the Code. Accordingly, all of her allegations against the union are dismissed as having no reasonable prospect of success.

ORDERS

41The Tribunal orders as follows:

(i) The applicant’s request to amend her Application is allowed and her Application is so amended; and

(ii) The Application as against the union is dismissed.

42I am not seized.