Nolan v. Royal Ottawa Health Care Group, 2014 HRTO 1040

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Craig Nolan

Applicant

-and-

Royal Ottawa Health Care Group

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: July 16, 2014

Citation: 2014 HRTO 1040

Indexed as: Nolan v. Royal Ottawa Health Care Group

APPEARANCES

Craig Nolan, Applicant

Russell MacCrimmon, Counsel

Ontario Public Service Employees Union, Respondent

Danny Kastner, Counsel

Royal Ottawa Health Care Group, Respondent

Michelle O’Bonsawin, Counsel

1The applicant filed an Application against his employer and union in which he alleged discrimination contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision addresses whether Application against the Ontario Public Service Employees Union (“OPSEU” or “union”) should be dismissed as having no reasonable prospect of success.

Summary Hearing Process

2The 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 consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that it will succeed.

3The Tribunal has held on many occasions that it does not have jurisdiction over general claims of unfairness unrelated to the Code. See, for example, Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 at para. 27 and Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777 at para. 10. Discrimination under the Code generally involves an allegation of adverse treatment because of one or more of the grounds listed in the Code. Adverse treatment is not discriminatory in the legal sense unless there is proof that one or more of the personal characteristics listed in the Code were a factor in the treatment the applicant experienced.

4The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he or she experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary.

5However, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he or she was treated adversely. The purpose of the summary hearing is to determine if reasonable inferences likely can be drawn from any facts or evidence the applicant is able to point to which tend to support the applicant’s belief that he or she has experienced discrimination or reprisal within the meaning of the Code.

6The question that the Tribunal must decide at a summary hearing is whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated or that he or she was subject to reprisal within the meaning of the Code. Often, such cases will deal with whether the applicant can show a link between events and the grounds upon which he or she makes a 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 Code ground.

7Sometimes, applicants are not in a position to point to any evidence beyond their own suspicions to support their belief that they have been discriminated against. In such a situation, applications may be found to have no reasonable prospect of success. As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 (“Forde”), for an Application to continue in the Tribunal’s process following a summary hearing, 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.

8Having set out the basic framework for determining whether an application should be dismissed in whole or in part because it has no reasonable prospect of success, I now turn to the facts of this particular case.

Factual Background

9The applicant was employed by the Royal Ottawa Health Care Group (“ROHCG”) as a Registered Practical Nurse. His employment was covered by the terms of a collective agreement between ROHCG and OPSEU. In 2009, the applicant filed two grievances under the collective agreement alleging that ROHCG had discriminated against him. He also alleged that ROHCG failed to provide reasonable accommodations and a workplace free of harassment and discrimination.

10The applicant began a leave of absence in October 2009 until he sought to return to work in August 2011. On August 18, 2011, the applicant filed a third grievance in which he alleged that ROHCG was continuing to violate the collective agreement’s guarantee of a workplace free of harassment and discrimination.

11In his Application, the applicant alleged that ROHCG and OPSEU discriminated against him because of disability and sexual orientation from August 2011 to January 2013. Among other things, the applicant alleged that ROHCG discriminated against him by refusing to allow him to return to work until he underwent further medical assessments, by making unfair and prejudicial comments to a medical practitioner who was retained to perform an independent evaluation, and by requiring him to take part in a return to work program which included retraining and a probationary period.

12The applicant alleged that OPSEU discriminated against him by failing to advance further grievances on his behalf, by providing him with inadequate support and representation, and by pressuring him to sign a settlement agreement with ROHCG. In his written submissions, the applicant alleged that his OPSEU representative provided him with virtually no information about the grievance process. According to the applicant, despite the fact that he wished to return to work, his union representative pressured him to accept a severance package.

13In his Application, the applicant stated that his union representative attended at his residence on December 19, 2012 and presented him with a Memorandum of Agreement (“MoA”). The applicant signed the MoA without reading it. The applicant stated that his union representative was aware that he suffered from depression and anxiety. The applicant also stated that his union representative was aware that a close friend of his recently had been diagnosed with cancer.

14The applicant claimed that his union representative was only at his home for a maximum of ten minutes and that he did not provide him with a copy of the MoA. Among other things, the MoA provided the applicant with a period of salary continuation in exchange for the severance of his employment. Under the MoA, the applicant also received a sum in exchange for releasing any claims against ROHCG under the Code. As consideration for these sums provided to him, the applicant agreed to a full and final release of any claims or potential claims against ROHCG arising from his employment with it.

15The applicant submitted that OPSEU’s conduct extended beyond the failure to provide fair representation and amounted to discrimination because it became an active participant in the alleged discrimination in this case. The applicant’s counsel pointed to three factors that he submitted supported liability on the part of the union. First, he submitted that OPSEU failed to take any active measures on the applicant’s behalf after his leave of absence, including failing to file any further grievances after August 2011. Second, the applicant’s counsel submitted that the union became an active participant in the discrimination due to the circumstances surrounding the signing of the MoA. He sought to rely upon the Supreme Court of Canada’s decision in Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970 (“Renaud”) to support the applicant’s position. Third, he argued that the MoA was itself discriminatory and that by being a party to the agreement, the union is liable for any alleged discrimination arising from the MoA.

16OPSEU denied any failure to fairly represent the applicant and also denied that it breached the Code.

Decision

17It was clear at the hearing that the applicant is dissatisfied with the representation he received from the OPSEU. However, even if I accept all of his allegations as true and provable, I find that they have no reasonable prospect of making out discrimination under the Code.

18Even if I accept that the union failed to take active steps on the applicant’s behalf after August of 2011, this alone is not sufficient to establish a violation of the Code. The Tribunal has consistently held that even a union’s failure to act on behalf of a member does not by itself amount to a breach of the Code, absent some factual basis to establish discrimination or reprisal. As the Tribunal stated in Traversy v. Mississauga Professional Firefighters’ Association, 2009 HRTO 996 at para. 33:

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.

19Based on the written materials and the oral submissions at the hearing, I find that the applicant has not pointed to any evidence that could lead the Tribunal to find that the union treated him differently in the representation it provided to him. As acknowledged by the applicant’s counsel at the hearing, the fact that OPSEU allegedly failed to file further grievances on his behalf is not in itself enough to make out a violation of the Code under the Tribunal’s caselaw. Even if I accepted the applicant’s allegation that his union representative pressured him to sign the MoA despite his desire to return to work, this alone is not a violation of the Code. The applicant provided no information from which reasonable inferences can be drawn to support his belief that his disability and/or sexual orientation were factors in the OPSEU’s actions or inactions in relation to his case.

20I am not persuaded that there is a reasonable prospect that the union could be found liable pursuant to the Supreme Court’s decision in Renaud. In Renaud, the Supreme Court found that a union may become a party to discrimination in two ways. It stated as follows:

First, it may cause or contribute to the discrimination in the first instance by participating in the formulation of the work rule that has the discriminatory effect on the complainant. […]

Second, a union may be liable for failure to accommodate the religious beliefs of an employee notwithstanding that it did not participate in the formulation or application of a discriminatory rule or practice. This may occur if the union impedes the reasonable efforts of an employer to accommodate. In this situation it will be known that some condition of employment is operating in a manner that discriminates on religious grounds against an employee and the employer is seeking to remove or alleviate the discriminatory effect. If reasonable accommodation is only possible with the union's co-operation and the union blocks the employer's efforts to remove or alleviate the discriminatory effect, it becomes a party to the discrimination. In these circumstances, the union, while not initially a party to the discriminatory conduct and having no initial duty to accommodate, incurs a duty not to contribute to the continuation of discrimination. It cannot behave as if it were a bystander asserting that the employee's plight is strictly a matter for the employer to solve.

21The applicant argued that this case raises the second form of liability. However, unlike the situation in Renaud, there was no suggestion that the union in this case impeded or blocked any efforts by the employer to accommodate the applicant. Instead, the applicant submitted that the union may be liable if it stood idly by in the face of discrimination. In support of his position, the applicant sought to rely on the passage above where the Supreme Court stated that a union “cannot behave as it if were a bystander asserting that the employee’s plight is strictly a matter for the employer to solve”.

22In my view, that sentence must be read in the context of the rest of the paragraph. The Supreme Court’s general statement is qualified by the introductory phrase “in these circumstances”, which refers to a situation where the employer is trying to remove or ameliorate a discriminatory employment condition and requires the union’s cooperation but the union impedes or blocks these efforts. It is in such a situation that a union cannot absolve itself of liability by simply asserting that it is the employer that has the duty to accommodate the employee.

23The above interpretation is made clear by the Supreme Court’s statement in a later paragraph that:

In the second type of situation in which the union is not initially a contributing cause of the discrimination but by failing to co-operate impedes a reasonable accommodation, the employer must canvass other methods of accommodation before the union can be expected to assist in finding or implementing a solution. The union's duty arises only when its involvement is required to make accommodation possible and no other reasonable alternative resolution of the matter has been found or could reasonably have been found.

24This interpretation has been adopted by the Tribunal in previous case law. See Gungor v. Canadian Auto Workers Local 88, 2011 HRTO 1760 at para. 36.

25In this case, there is no suggestion that that there was a discriminatory work rule or a provision in the collective agreement that was discriminatory. Unlike in Renaud, there is also no allegation that the union blocked, impeded, or failed to cooperate with any attempt at accommodation by the employer. Therefore, I find that the Supreme Court’s decision in Renaud does not support the applicant in establishing that his Application stands a reasonable prospect of success against OPSEU.

26Finally, I do not accept the applicant’s submission that the union is liable for discrimination because it was a signatory to the MoA. The applicant’s argument in this regard appears to be related to his allegation that the union knew that he was suffering from depression and that his close friend had recently been diagnosed with cancer. The applicant appeared to suggest that the union discriminated against him by allegedly pressuring him to sign the MoA. As noted above, even if I were to accept that the union pressured the applicant to sign the MoA, the applicant pointed to no evidence linking such pressure to his disability or sexual orientation. I do not agree that it was discriminatory in the circumstances for the parties to enter into the settlement agreement. For this reason, I do not accept the applicant’s submission that the union may be found liable under the Code because it is a signatory to the MoA or because of the circumstances surrounding the signing of the MoA.

27In my view, even if all of the allegations respecting the union’s actions or failure to act were accepted as true, they would not amount to a breach of the applicant’s Code-protected rights. For this reason, I find that the applicant’s Application as against OPSEU must be dismissed as having no reasonable prospect of success.

Nest Steps - Application Against ROHCG

28ROHCG requested that the Application against it be dismissed due to the full and final release included as part of the MoA. In his Reply, the applicant submitted that it would not be an abuse of process for the Tribunal to proceed with this Application in spite of the release. A half-day preliminary hearing will be scheduled to address this issue.

29The Tribunal advised the parties that, in light of the applicant’s submissions, it will require evidence in relation to the circumstances surrounding the signing of the release. The applicant’s counsel submitted that it was necessary to schedule an in-person hearing to hear this evidence. He also suggested that it may be necessary for him to obtain additional medical evidence to support his claims. Both ROHCG and OPSEU submitted that additional medical evidence would not be required as the applicant has had the opportunity to file the evidence he seeks to rely upon to support his position. ROHCG and OPSEU submitted that they should be permitted to file responding medical evidence if the applicant was permitted to file further medical evidence.

30I note that the applicant has already filed extensive written materials and contemporaneous medical evidence relating to his medical condition during the time period relevant to his Application (August 2011 to January 2013). The applicant is free to rely upon this medical information. In addition, I will permit him to advance supplementary medical evidence relating to his medical condition at the time he signed the release. However, I note that the evidence that would appear to be most relevant is contemporaneous medical evidence rather than evidence gathered over a year and a half later.

31It is not necessary for the respondent to file responding medical evidence at this time. In my view, the most fair, just and expeditious way to proceed is for me to hear the applicant’s evidence and for the respondent to have the opportunity to cross-examine the applicant. If I decide that I require responding evidence from the respondent, an additional half-day hearing will be scheduled to hear that responding evidence.

32At the summary hearing, the parties agreed to three alternative dates for the preliminary hearing: September 4, 24, and 25, 2014. Although the Tribunal and parties had discussed scheduling the hearing on September 4, 2014, the Tribunal finds it more appropriate to schedule the hearing for later in September to ensure sufficient time for the filing of any further medical evidence by the applicant. As a result, the preliminary hearing will be scheduled for the morning of September 24, 2014. Since the union’s representative will not be required to testify at this time, the union is not required to confirm his availability for the preliminary hearing on September 24, 2014. If the applicant wishes to call the union’s representative to give evidence, he should follow the usual procedure to summons him as a witness.

33The applicant is directed to file any additional evidence he intends to rely upon at the hearing on ROHCG’s request to dismiss no later than September 10, 2014, with a copy to the respondent. By this date, the applicant must also file a statement of the oral evidence he intends to call at the preliminary hearing. Once the Tribunal has reviewed the applicant’s materials, it will advise the parties whether the hearing will be scheduled as an in-person or teleconference hearing.

34In light of my findings above, OPSEU is no longer a respondent to this Application. If the union wishes to file a request to intervene, its intervention rights will be determined closer to the hearing.

35If the parties wish to file any further case law on which they intend to rely at the preliminary hearing, they must do so no later than September 10, 2014.

order

36For the reasons set out above, the Application against OPSEU is dismissed.

37A half-day preliminary hearing to address ROHCG’s request to dismiss will be scheduled for September 24, 2014. A Notice of Hearing will follow from the Tribunal’s Registrar to confirm the details of the preliminary hearing.