Reis v. Mississauga (City), 2013 HRTO 954

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Reis

Applicant

-and-

City of Mississauga Transportation and Works, MiWay Transit and Amalgamated Transit Union - Local 1572

Respondents

DECISION

Adjudicator: Leslie Reaume Date: May 30, 2013 Citation: 2013 HRTO 954 Indexed as: Reis v. Mississauga (City)

APPEARANCES

John Reis, Applicant Self-represented

City of Mississauga Transportation and Works and MiWay Transit, Respondents Graham Walsh, Counsel

Amalgamated Transit Union - Local 1572, Respondent Beverley J. Burns, Counsel

Introduction

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

2By Case Assessment Direction (“CAD”) dated July 4, 2012, the Tribunal, on its own initiative, scheduled this matter for a Summary Hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure. The CAD raised three issues to be addressed during the summary hearing:

• Whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed;

• Delay; and

• The nature of the allegations against the Amalgamated Transit Union Local 1572 (the “ATU”);

3With respect to the issue of delay, the parties were directed to section 34(1) and (2) of the Code which 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.

4With respect to the allegations against ATU, the parties were directed to the fact that 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: Traversy v. Mississauga Firefighters’ Association, 2009 HRTO 996, and Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025.

5With respect to whether or not the Application should be dismissed in whole or in part the summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to assess applications at an early stage to ensure that they meet the minimum requirements under the Code to proceed to hearing. The Tribunal is not empowered to remedy general allegations of unfairness in areas such as employment, services or accommodation and it is important that the parties be advised of this at the earliest opportunity.

6The test that is applied at this stage is whether an application should be dismissed in whole or in part because it has no reasonable prospect of success. Discrimination generally involves an allegation of unfair treatment by a person who identifies with one or more of the grounds under the Code, such as race, gender or disability. Unfair treatment is not discriminatory in the legal sense unless there is proof that the personal characteristic was a factor in the treatment the applicant experienced.

7At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment they experienced. Indeed, many experiences of unfairness which would not be considered discrimination in the legal sense, can leave a person with significant financial and emotional damage. The test of no reasonable prospect of success is determined by assuming the applicant’s allegations are true unless there is some clear evidence to the contrary. In some cases, for example, the applicant will not dispute the respondent’s version of one or more of the facts. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The purpose of the summary hearing is to determine if there is evidence to support the applicant’s belief that they have experienced discrimination.

8The real question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics.

9In order to proceed to a full hearing some evidence must exist which goes beyond the applicant’s feeling or belief that their personal characteristic played a role in what they experienced. That evidence comes in a variety of forms: the timing of a person’s dismissal or discipline; comments alleged to have been made by the respondent; comparisons with how other people were treated. Many circumstances play a role in assisting the Tribunal in determining whether one has experienced discrimination in the legal sense. However, if the applicant is unable to point to evidence beyond their own assumptions or belief, the application may be found to have no reasonable prospect of success.

10The parties are permitted an opportunity to make oral submissions during a summary hearing. These submissions are often helpful in clarifying the nature of the allegations.

11The primary focus in the summary hearing is on the applicant’s evidence. The respondent’s explanation may be considered where there is no dispute about the facts or where it is plainly obvious that a fact must be true. However, the Tribunal is very careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondent has an alternative explanation of the events. The Tribunal is mindful of the fact that in some cases the application must proceed further in the hearing process because the respondent is the party who has control over the evidence which could favour the applicant’s case.

12Having set out the basic framework for determining the issues in the summary hearing, I now turn to the facts of this particular case.

ANALYSIS

13The parties participated in a summary hearing by teleconference on November 13, 2012 following the CAD of July 4, 2012. On November 13, 2012, I issued another CAD containing the following direction at the conclusion of the teleconference:

The applicant is unrepresented. The Application was significantly lacking in particulars. The applicant prepared extensive oral submissions referring to particulars which are not contained in the Application but which appear to be relevant in determining whether or not there is a reasonable prospect of success.

The summary hearing was adjourned. The applicant will have 7 days from the date of this CAD to provide the other parties and the Tribunal with written submissions setting out the particulars of his allegations in relation to the issues in the CAD of July 4, 2012. The applicant will also indicate which document he is relying on in his submissions and where it can be found in the materials he has disclosed. The respondents are not required to respond in writing but will address the applicant’s arguments when the teleconference resumes.

14During the teleconference the respondent had argued that an adjournment would give the applicant an opportunity to more fully understand the threshold he was required to meet and to cure any deficiencies in his allegations and evidence. With respect, a fair opportunity to clarify the allegations is precisely what the summary hearing process is directed at achieving. It is often the case, particularly with self-represented applicants, that their initial materials lack the particulars necessary to fully understand whether or not the Tribunal has the jurisdiction to resolve their Application. The summary hearing process may be the only opportunity for an applicant to fully describe the circumstances which gave rise to the filing of their Application. It is therefore critically important that the applicant be given the opportunity to point to any evidence or arguments that might be relevant to determining whether or not the application proceeds beyond this early stage.

15The applicant filed supplementary material prior to the summary hearing reconvening on December 5, 2012.

16The starting point for understanding the applicant’s allegations is to look to the narrative of his Application where he sets out the following issues:

• The applicant self-identifies as having an anxiety disorder. He alleges that he has been harassed at work based on his medical history;

• Mr. Mclellan (supervisor), Vito Tomas (ex-union president-supervisor) and Nick Bye (ATU 1572 President) have knowledge of his medical condition and participated in harassing him;

• Mr. Mclellan began harassing him in 2003 because of his medical illness and in late 2006, handled medical documents belonging to the applicant that Mr. Mclellan should not have been privy to;

• In 2008 Nick Bye and Vito Tomas also handled medical prescription documents to appeal an unpaid claim. They and others bullied him, poisoned his workplace and retaliated against him because he filed various complaints about his experiences.

• The union retaliated because of his involvement in questioning the union’s financial practices under Vito Tomas and Nick Bye;

• Vexatious/frivolous complaints were filed by others from the people named to the auditor;

• The corporate respondent did not stop the bullying;

• At union meetings the applicant faced death threats, bullying acts and he was put on “trial” in front of the membership body for two hours following the presentation of the audit;

• Nick Bye arbitrarily denied his grievance against Mr. Mclellan to proceed to arbitration on the basis that he should have filed a complaint with the corporation;

• He was the subject of heavy-handed discipline and unfair treatment;

• Union executive Joe Bizzaro also harassed the applicant on Facebook and as a result provided Vito Tomas with information that led to discipline by the corporation;

• MiWay management discriminated against the applicant for a position with the Peer Support Group because they did not give him a valid reason why he could not be in the group.

17In addition, the applicant filed almost 500 pages of material in advance of the first teleconference. That material is divided into sections entitled:

• My Value as an Employee;

• 2003 Illness and Absenteeism;

• 2007 Absenteeism and Harassment;

• H.R. Complaint on Ex-Union President;

• 2010 Harassment-Bullying;

• 2011 Vexatious Complaint-WI Hardship;

• Union-OLRB-Financial Questions.

18The first section contains various letters which contain complimentary observations about the applicant and his work, assignments opportunities offered to him, feedback he has provided to his employer on a variety of issues and examples of how he has supported other coworkers in need.

19The second and third sections contain documents which relate to a period of illness and absence in 2003 and 2007 when he was experiencing symptoms of generalized anxiety disorder. The documents include a letter dated January 7, 2007 from the applicant to the Manager of Operations raising concerns about how Mr. Mclellan was handling his return to work.

20The fourth, fifth and sixth sections contain documents which the applicant relates to his complaint about Vito Tomas and the events which ensued, including a number of disciplinary letters which the applicant attributes to reprisal. There are also documents related to grievances arising from discipline. There is a letter dated March 30, 2009 from the applicant to the Director of Human Resources, Director of Transit, and Operations Manager raising concerns about the conduct of Vito Tomas, including an allegation of a racial slur going back to 2007. In another document, an email dated June 24, 2009, the applicant indicates that if the employer does not intervene in the harassment he is experiencing, he will file a complaint with the Human Rights Tribunal.

21The last section contains documents related to an audit of the union and a related Ontario Labour Relations Board application and records related to the applicant’s claims for disability leave.

22In his supplementary written materials which were filed in accordance with the CAD of November 13, 2012, the applicant provides some of the particulars that were missing from his Application. There are also a number of general statements like those contained in the Application.

23As I understand the applicant’s allegations, he believes that he is stigmatized in his workplace as a result of his mental health disability. He is concerned that in the past, his medical records have been handled in a manner which has given certain individuals access to his medical history and that he has experienced harassment as a result. He connects the disciplinary actions taken against him with what he perceives as a history of harassment on the basis of his disability. He also alleges that neither his employer nor his union acted to stop the harassment he was experiencing and that efforts were made to turn the membership against him by, for example, announcing that he had filed an application against the union with the Tribunal.

Delay

24The Application was filed on May 15, 2012. The limitation period under the Code is one year, which would render incidents occurring prior to May 15, 2011 out of time. The applicant argues that I should exercise my discretion to permit him to advance allegations which pre-date the limitation period on the basis of good faith and a “series of incidents”. The applicant argues that his allegations, which go back to the year 2003, constitute a continuing violation of the Code or a “series of incidents”, with the last incident occurring on May 16, 2011.

25One of the factors I must consider is the point at which applicant understood that what he was experiencing could constitute a breach of the Code. In March 2009, the applicant filed a complaint with the City of Mississauga under the “Respectful Workplace” policy, which references issues of accessibility and human rights. The applicant received training in the policy and understood, by that time, that his experiences in the workplace could be found to be discriminatory. This does not lead directly to the conclusion that the applicant was sufficiently aware of his rights and responsibilities under the Code to act on them.

26However, the applicant formally put his employer on notice by email dated June 24, 2009, that he was aware of his rights under the Code and that he intended to file an application if his allegations were not resolved. I have to accept that at this point in time, the applicant was in a position to identify his experiences as discriminatory and to understand both his rights and responsibilities under the Code. The applicant did not explain why, despite having knowledge of the existence of the Tribunal and its mandate, he failed to file an application in relation to the incidents he now seeks to proceed with going back to 2003.

27On that basis alone, I would find that the applicant has not demonstrated good faith for the purpose of extending the application of the time limit to those allegations which arose prior to May 15, 2011, one year before the Application was filed.

28The second argument raised by the applicant is that the allegations which arose prior to May 15, 2011 are part of a “series of incidents” which began in 2003. The difficulty with the applicant’s argument is that although he cites May 16, 2011 as the date of the last incident, there does not appear to be an incident which occurred on this date. In order to establish that the incidents which are out of time constitute a series of incidents for the purpose of extending the limitation period, they must be linked to an incident which is timely.

29The applicant references a letter from the respondent employer dated May 3, 2011 and a subsequent doctor’s appointment which the applicant did not believe he should be required to attend. The applicant argued that he felt that he was being harassed and his medical status was being questioned because he had attended a union meeting. The applicant interpreted the letter to mean: “if you are well enough to attend a union meeting, you are well enough to come to work.” However, the date of the letter puts the incident out of time and the applicant did not explain how this related to the date he chose as the last incident. He did not allege, for example, that he received the letter on May 16, 2011.

30Similarly, the applicant alleged that a doctor’s appointment that he was required to attend following the May 3, 2011 letter, which took place on or about May 14, 2011, was also discriminatory. Again, if that is the case, the incident is technically out of time.

31The applicant also alleges that in May 2011, he asked Nick Bye to file a harassment grievance on his behalf. His request was denied. Again, the applicant does not indicate the date of this incident except to say that it happened in May 2011.

32In the written submissions the applicant filed in advance of the second conference call, he refers to other incidents which allegedly occurred after May 16, 2011 but before the filing of the Application:

• In July 2011 the applicant went home sick with a viral infection and was told that he would need to get a medical certificate;

• At a step 3 grievance meeting which occurred in October 2011, Nick Bye was successful in having a disciplinary letter removed from his file;

• Nick Bye “was heard mentioning my grievances at the ratification meetings in late 2011 and that we were starting on a ‘clean slate’”;

• The applicant made several attempts to request production from the union and Ms. Watson in relation to an outstanding arbitration;

33Even accepting the applicant’s allegations as true, there is no reasonable prospect that any of the incidents alleged by the applicant to have occurred between May 16, 2011 and the date he filed the Application would be found to violate the Code.

34The event which appears to have triggered the filing of the application is the letter dated May 3, 2011. The applicant argued that during the one-year period leading up to the filing of his Application, he was engaged in research and evidence gathering. In all of the circumstances I find that the applicant had ample opportunity to file a timely application with respect to this incident. There is no incident which is alleged to have occurred between May 15, 2011 and the filing of the Application which could be linked to the time-barred allegations to form a “series of incidents” for the purpose of extending the time limit under the Code.

35Accordingly, the Application is dismissed against all of the respondents.

36The applicant makes reference in his submissions to two allegations which post-date the Application. He alleges that Nick Bye informed the membership at the June 2012 general union meeting that the applicant had filed an application with the Tribunal. He also alleges that Mr. Mclellan signed a letter dated October 17, 2012 asking the applicant to participate in a meeting to review his attendance. The applicant perceives these incidents to be linked to his disability. This Decision does not prevent the applicant from filing a new application in relation to these incidents.

Order

37The Application is dismissed against all of the respondents.