Baber v. Ontario Secondary School Teacher’s Federation, 2013 HRTO 911

Rozana Baber

Applicant

-and-

The Ontario Secondary School Teacher’s Federation, Pierre Côté, Gerry Harrison, Colleen Ireland and Andy Simpson

Respondents

Adjudicator: Mary Truemner

Date: May 28, 2013

Citation: 2013 HRTO 911

Indexed as: Baber v. Ontario Secondary School Teacher’s Federation

APPEARANCES

Rozana Baber, Applicant

Self-represented

Ontario Secondary School Teacher’s Federation, Pierre Côté, Gerry Harrison, Colleen Ireland and Andy Simpson, Respondents

Susan Ursel, Counsel

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging reprisal and discrimination with respect to employment because of disability.

2The applicant was a teacher with the York Region District School Board (“the Board”). The Application describes how the Board suspended the applicant from her teaching position and then terminated her employment in 2008. The Application describes how the applicant had previously filed an Application against the Board, alleging, amongst other things, that the Board failed to accommodate her disability when it would not alter her teaching assignments and her start time, nor would it excuse her from performance appraisals. The Application also states that the previous Application against the Board was dismissed by the Tribunal. That decision, issued on January 28, 2011, concluded, amongst other things, that the applicant did not provide medical evidence to support the applicant’s requests to the Board. (See Baber v. York Region District School Board, 2011 HRTO 213).

3On April 23, 2012, the applicant filed this Application against the Ontario Secondary School Teacher’s Federation (“the union”) which was the applicant’s bargaining agent. The personal respondents are all union representatives with whom the applicant dealt in her negotiations with the Board for accommodation and continued employment. It is not clear from the Application as to exactly what the respondents did that amounts to violations of the Code.

4The respondents filed a Request for Summary Hearing, and on November 15, 2012, the Tribunal issued a Case Assessment Direction (“CAD”), granting the respondents’ Request. In the CAD, the Tribunal directed that a summary hearing would be held to determine whether this Application 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 the Application or part of the Application will succeed. The CAD explained that the applicant would have to point to the evidence on which she will establish discrimination by the union within the meaning of the Code. Noted in the CAD was the fact that most of the allegations in the Application were out of time, and that the description of what is alleged to be reprisal, does not appear to be reprisal as defined by the Code. At para. 6 of the CAD, the Tribunal also stated that it appears that the Application alleges merely that the union failed to properly represent the applicant or pursue a grievance and noted:

The Tribunal has held that it is not discrimination for a union or association to decide not to file or pursue a human rights grievance, unless the reason for doing so was based on one of the grounds in the Code. In Traversy v. Mississauga Firefighters’ Association, 2009 HRTO 996, the Tribunal stated as follows at para. 33:

Assuming that the Code also applies to this aspect of a union’s relationship with the employees it represents, 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 many 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 v. Universal Workers Union, 2009 HRTO 700. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.

THE SUMMARY HEARING

5At the summary hearing on January 23, 2013, the applicant explained that the union failed to protect her from the alleged abuse by the Board and from being fired. She explained that she filed her Application against the respondents in this case because they did not protect her or at least question why the Board “was doing these things” to her. She complained that the union withdrew the grievance about the termination of her employment without a satisfactory reason. She argued that not taking the grievance to arbitration was a breach of the union’s duty of fair representation.

6She also argued that Pierre Côté, one of the union representatives named as a personal respondent, reprised against her in a telephone conversation in November of 2011, after her Application against the Board had been dismissed, because he told her that she should obtain work outside of Ontario given that he believed there was no hope in obtaining a teaching position in Ontario or receiving an income through a long term disability plan.

7The applicant also agreed to the characterization of her allegations against the respondents as articulated by the respondents’ in their Request for Summary Hearing. She made a couple of clarifications to them, and they were therefore finalized as follows:

a) In the 2005/6 school year, the applicant advised the union, in the person of Gerry Harrison, that she was assigned to a course which she was unqualified to teach. The union did nothing to change the Applicant’s 2005/6 teaching assignment, following which, the applicant became sick and was forced on part-time disability. The union did nothing to try to find out why she was being made to teach a course for which she was not qualified.

b) In the fall of 2006, the union did not cancel the “unwarranted TPA [Teacher Performance Appraisal], and the union did not find out why she was assigned that TPA.

c) The union, in the persons of Colleen Ireland and Andy Simpson, manipulated the results of the January 2007 TPA process when they should have stopped it. The union has therefore breached the duty to protect the applicant from a manipulated TPA process.

d) In 2008, the applicant advised the union that she wanted to continue with accommodation granted the year prior: 2/3 time Teacher Librarian, 1/3 ESL [English as a Second Language]. The union did not discuss any accommodation options with the applicant.

e) Following the meeting of November 10, 2008, the union, in the persons of Colleen Ireland and Gerry Harrison, called the applicant at home and tried to force her to accept LTD [Long Term Disability].

f) On March 29, 30, 31, 2010, union representatives Colleen Ireland, Gerry Harrison and Andy Simpson did not serve as witnesses at the Human Rights Tribunal’s hearing of her [Application] against [the Board].

g) The union manipulated the Ontario Teacher Insurance Plan’s decision to deny her LTD benefits in January 2012.

h) The union withdrew the applicant’s termination grievance without it having gone to arbitration.

ANALYSIS

Delay

8The CAD warned the applicant that it appeared that some of the allegations should be dismissed because they appeared to be untimely, and that the summary hearing would need to address this issue.

9 Section 34(1) and (2) of the Code states:

(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.

10With respect to alleged incidents of discrimination as characterized above in points a) to h), the allegations at points a) to f), inclusive, refer to incidents which occurred more than one year before the applicant filed the Application on April 23, 2012. Without commenting on the appearance that they are allegations that the respondents failed to properly represent the applicant in her dispute with the Board, which may be unfair, but not a violation of the Code, I find that these allegations are untimely, and the applicant has not provided an explanation for the delay. I am therefore not satisfied that the delay was incurred in good faith.

11In the absence of a good faith reason for the delay, it is not necessary for me to consider whether substantial prejudice would result from the delay: Esanu v. Georgetown Men’s Non-Contact Hockey League, 2009 HRTO 579.

12The following allegations are therefore dismissed:

b) In the fall of 2006, the union did not cancel the “unwarranted TPA [Teacher Performance Appraisal], and the union did not find out why she was assigned that TPA.

No Reasonable Prospect of Success

13In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal provided the following guidance with respect to summary hearings:

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.

i) Disability

14I find that the applicant has not been able to link disability with any of the remaining allegations of discrimination. She has not pointed to any evidence that might prove that her disability was a factor in the respondents’ decisions on how to help her or not help her; nor has she described anything which might amount to a failure by the respondents to meet any duty to accommodate special needs arising from disability. The applicant at the summary hearing did not make any submissions which would lead me to understand that her allegations against the respondents are anything more than an accusation that they failed to properly represent her, which, standing alone, does not amount to a violation of the Code. (See Traversy v. Mississauga Firefighters’ Association, supra; and Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025).

15The applicant has identified no evidence on which she can make a link between the ground of disability and the respondents’ alleged inaction, their alleged failure to act or protect, or their alleged actions described in points g) and h) as characterized by the respondents and adopted by the applicant:

g) The union manipulated the Ontario Teacher Insurance Plan’s decision to deny her LTD benefits in January 2012.

h) The union withdrew the applicant’s termination grievance without it having gone to arbitration.

16Even if I were to accept the above two points as true, the applicant pointed to no evidence that any such actions of the union were taken because of the applicant’s disability, or that they failed to accommodate disability.

17There is no dispute that the union withdrew the termination grievance before arbitration, but I cannot see how the withdrawal could amount to a Code violation, particularly in the context of 1) the Tribunal having dismissed the Application against the Board in part because the applicant would not provide necessary medical evidence to the Board to justify her accommodation requests despite the Board’s encouragement that she do so (Baber v. York Region District School Board, supra); and 2) a psychiatrist’s report that concluded that the applicant understood and appreciated the consequences of her decision not to provide the necessary medical evidence to the Board and to the union to justify her requests.

18There is a dispute with respect to whether the respondents manipulated the Ontario Teacher Insurance Plan’s decision to deny the applicant LTD benefits. However, even if I were to accept the applicant’s allegation as true, the applicant could not explain why this amounts to a Code violation. Obviously, one presumes that everyone receiving LTD benefits is disabled, but this link to disability is not sufficient to establish a violation of the applicant’s right to equal treatment without discrimination because of disability.

19Given the absence of proposed evidence on which a link might be established between the alleged actions of the respondents and a reason for the actions being her disability, I must conclude that the remaining allegations of discrimination because of disability, g) and h), have no reasonable prospect of success. Therefore, although timely, they are dismissed.

ii) Reprisal

20 Section 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.

21Reprisal under s. 8 of the Code means that there must be an intention by the respondent to reprise for the claiming or enforcing of human rights, or for the participation in an application at the Tribunal. See Shakhnazarov v. George Brown College, 2011 HRTO 1917.

22The applicant stated at the summary hearing that Pierre Côté, one of the union representatives named as a personal respondent, reprised against her because, after the Board terminated her employment, he told her that she should obtain work outside of Ontario because there was no hope in obtaining a teaching position in Ontario or receiving an income through a long term disability plan.

23The applicant did not describe any evidence that the respondent intended to reprise against her (by giving her this advice) because she filed her Application against the Board, or because she was otherwise trying to claim or enforce her rights under the Code. I therefore find that there is no reasonable prospect that the evidence the applicant has or that is reasonably available to her can show a link between Mr. Côté’s statement, if true, and reprisal as defined by the Code. The allegation of reprisal is dismissed.

CONCLUSION

24The Application is dismissed.

Dated at Toronto, this 28^th day of May, 2013.

“Signed by”

Mary Truemner

Vice-chair