Adonice v. Public Service Alliance of Canada, 2013 HRTO 705

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Imma Adonice

Applicant

-and-

Public Service Alliance of Canada and the Union of National Employees

Respondents

DECISION

Adjudicator: Paul Aterman

Date: April 26, 2013

Citation: 2013 HRTO 705

Indexed as: Adonice v. Public Service Alliance of Canada

APPEARANCES

Imma Adonice, Applicant

Self-represented

Public Service Alliance of Canada and the Union Of National Employees, Respondents

Andrew Astritis, Counsel

INTRODUCTION

1This Application was 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, ancestry, place of origin and ethnic origin. Reprisal is also alleged.

2The respondents made a request to hold a summary hearing, which was granted. A bilingual hearing was held by teleconference on April 19, 2013 to determine whether the Application or part of the Application has a reasonable prospect of success. For the reasons set out below I conclude that it does not, and as a result the Application is dismissed.

background

3The applicant self-identifies as a black woman of Haitian origin. In 2010 she was the president of a local of the respondents. Following a regular year-end review of the local’s accounts in March 2011, the respondent Union of National Employees (UNE) commenced an investigation into perceived book-keeping irregularities. The UNE executive established an investigation committee. The three members of this committee were all of white or Caucasian origin.

4The applicant was asked to step down as president of the local while the investigation took its course.

5In November of 2011 the committee called the applicant to a meeting. The applicant alleges that she was not informed that the meeting was a step in a process that could lead to her being sanctioned. She maintains that the committee treated her rudely through the course of the meeting and that a member of the committee called her a liar at the end of the meeting. The applicant further alleges that the meeting was recorded and she was assured that its proceedings would be kept confidential. She maintains that the respondents broke this promise by discussing the content of the meeting with another union official.

6The applicant alleges that in January 2012 she was notified by the UNE that its view was that she had misappropriated union funds and was suspended from membership until further notice. She maintains that in July 2012 she was called into the office of her supervisor. She alleges that the supervisor presented her with an anonymous letter that made allegations against her and was asked to explain that letter. She states that she was then informed that her membership in the UNE was suspended for five years.

7The applicant states that she wrote two or three letters to the president of the Public Service Alliance of Canada and another senior union official complaining about the unfairness of the process leading to her suspension, but that her letters were ignored.

submissions

8The applicant argues that racism was a factor in how she was treated at the November 2011 meeting. She maintains that the fact that she was spoken to rudely, that the proceedings were recorded, that she was assured that the meeting would be kept confidential and that this promise to her was broken are all evidence of racial discrimination. The applicant argues that the fact that there was no visible minority member of the investigation committee is evidence of racism.

9The applicant also alleges that the respondents directed her to attend the November meeting, but failed to advise her that that this meeting was part of a disciplinary process. She argues that the failure to advise her of the disciplinary process constitutes reprisal.

10The applicant summarised her position by saying that if she had been white the respondents would never have treated her the way they did.

analysis

11Rule 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.

12The inquiry during a summary hearing was 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.

13As the Tribunal noted in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 (Forde), 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.

14If I accept the facts as alleged in the Application, I am unable to conclude that there is a link between those facts and discrimination on the grounds alleged by the applicant. I asked her during the hearing to point me to any evidence in the Application or that she could obtain that would support the conclusion that racism was a factor in the respondents’ treatment of her. However, she was unable to identify specific incidents, statements or documents. Rather, she maintained that it was self-evident from how she was treated and the fact that the investigation committee had no visible minority members that racism played a role in the respondents’ actions.

15Assuming, as the applicant alleges, that the respondents treated her in the manner she described during the hearing, there is nothing in the evidence to suggest that the applicant’s race, colour, ancestry, place of origin or ethnic origin were factors in their treatment. At best they amount to allegations of general unfairness.

16The fact that the investigation committee had no visible minority members is not, in and of itself, evidence of discrimination. Beyond raising concerns about the composition of the committee, the applicant needs to show that racism was a factor in how the committee acted. She has not pointed to evidence that would support her theory.

17In relation to the applicant’s allegation of reprisal, [s]ection 8 of the Code provides:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

18In Forde, above at para. 23, the Tribunal noted that: “Reprisal under s. 8 of the Code must be a reprisal for the assertion of human rights and there must be an intention to reprise for that reason”. See also Noble v. York University, 2010 HRTO 878 at para. 31.

19The applicant does not allege that there was a reprisal by the respondents because she asserted a Code right or was asked to infringe another person’s rights. Rather, she maintains that the respondents’ failure to let her know the potential consequences of the investigation committee’s proceedings was an act of reprisal. This does not meet the definition of reprisal outlined above.

20In the absence of any evidence to support her theory, the applicant’s claim that the respondents’ treatment of her was racist is simply speculation. Her claim of reprisal is in fact an allegation of unfairness on the part of the respondents. As the applicant has not pointed to any evidence that could link her suspension to any prohibited ground of discrimination under the Code, and as she has also not pointed to any evidence of reprisal, I conclude that the Application has no reasonable prospect of success.

order

21The Application is dismissed on the basis that it has no reasonable prospect of success.