Stone v. United Brotherhood of Carpenters and Joiners of America, Millwrights Local 1592, 2014 HRTO 1053

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Stephen Stone Applicant

-and-

United Brotherhood of Carpenters and Joiners of America, Millwrights Local 1592 Respondent

-and-

Bruce Power L.P. Intervenor

DECISION

Adjudicator: Dawn J. Kershaw Date: July 17, 2014 Citation: 2014 HRTO 1053 Indexed as: Stone v. United Brotherhood of Carpenters and Joiners of America, Millwrights Local 1592

APPEARANCES

Stephen Stone, Applicant Self-represented

United Brotherhood of Carpenters and Joiners of America, Millwrights Local 1592, Respondent Meg Atkinson, Counsel

Bruce Power L.P., Intervenor John Martelli, Counsel

INTRODUCTION

1This Application alleges reprisal and discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2At the outset of the hearing on April 14, 2014, the parties advised that the applicant had settled the Application as against his employer. The remaining respondent, United Brotherhood of Carpenters and Joiners of America, Millwrights Local 1592 (“the Union”) requested that the Application be dismissed as against it pursuant to s. 45.1 of the Code as being an abuse of process or as having no reasonable prospect of success.

3A prior request for dismissal based on no reasonable prospect of success was made by the Union and refused by the Tribunal at 2013 HRTO 1530 without reasons. Nothing in the Rules precludes a party from making a second request for dismissal at a later stage in the proceedings where circumstances warrant. Given the changed circumstances in this case, including disclosure and the settlement of the Application against the respondent employer, it is not inappropriate to consider this second request by the Union.

4The Union made oral submissions, the applicant provided written responding submissions and the Union provided written reply submissions. The intervenor appeared only to protect its interests during a hearing and because the hearing did not proceed, the intervenor took no further part in the proceeding.

BACKGROUND

5The applicant commenced this Application against his employer and the Union on August 31, 2012, alleging reprisal and discrimination in employment because of disability.

6The applicant is a millwright and a member of the Union, and is referred for work through the Union hiring hall process. The applicant alleges generally that he complained to the Union about the way he had been treated since a low back injury in 2009.

7Specifically the applicant complains about events that occurred around April 26, 2012 when he was laid off from a job for which he had just been hired. Before beginning the job, the applicant and others hired for the project had to pass a welding test and undergo a medical examination. The employer’s nurse gave the applicant restrictions of no stooping, with which the applicant agreed. On the first scheduled day of work, the employer advised the applicant that he was being laid off.

8The applicant alleges he contacted the Union after his lay off and was told that the Union has an obligation not to send out workers who may file a WSIB claim and that workers have to be able to work without restrictions to be “dispatched” to a job.

9He further alleges that in August 2012, four months after his lay off, the Union’s new Trade Rules came into effect. The applicant submits that Section 8, which reads as follows, means that the applicant cannot be dispatched to a job unless he can work without restrictions:

When a member is sick, on long term disability, on workers’ compensation benefits (excluding pension), the member will provide written proof from a medical practitioner to the Business Manager/Representative of his/her ability to be available for work without restrictions when medically fit.

SECTION 45.1 AND ABUSE OF PROCESS

10Section 45.1 of the Code states that the Tribunal may dismiss all or part of an application where its substance has been appropriately dealt with in another proceeding.

11The Tribunal may also dismiss an application as an abuse of process where an applicant has entered into a settlement resolving his or her outstanding employment issues: Stansens v. Liquor Control Board of Ontario, 2009 HRTO 1560; Sinnett v. Orlick Industries, 2009 HRTO 916; Luo v. Dell Canada, 2010 HRTO 879; and Messiah v. Snap-on Tools of Canada, 2010 HRTO 1151.

NO REASONABLE PROSPECT OF SUCCESS

12Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

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.

13In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paragraphs 8-9:

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.

14The Tribunal has stated on many occasions that it does not have a general power to deal with allegations of unfairness. See for example: Szabo v. Office of a Member of Parliament of Canada, 2011 HRTO 2201 and Badvi v. Voyageur Transportation, 2011 HRTO 1319. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as disability. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics were a factor in the treatment the applicant experienced. In assessing whether an application has no reasonable prospect of success, the Tribunal does not determine whether the applicant is telling the truth or assess the impact of the treatment they experienced. There is no question that acts of unfairness that are not legally discriminatory can cause significant harm.

15In assessing whether there is no reasonable prospect of success the Tribunal will assume an applicant’s version of events is true unless there is some clear evidence to the contrary. Accepting the facts alleged by an applicant does not include accepting the applicant’s assumptions about why he or she was treated unfairly. The mere fact that a person identified by a prohibited ground of discrimination experiences some kind of disagreeable or unfair treatment is not generally sufficient to support an inference of discrimination. The question that the Tribunal must decide is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment experienced by an applicant with the applicant’s personal characteristics. However, if the applicant is unable to point to circumstances beyond his or her own assumptions or belief, the application may be found to have no reasonable prospect of success.

16The Tribunal has noted that the Code is concerned with substantive discrimination and does not aim to eliminate all differences in treatment. Rather, the purpose of the Code is to address discrimination, in the form of disadvantage, prejudice and stereotyping, on the grounds set out in the Code. See C.M. v. York Region District School Board, 2010 HRTO 1494 at paragraph 4. Not all actions that may have an impact on people identified by a ground constitute substantive discrimination.

RESPONDENT’S SUBMISSIONS

17The Union submits that the applicant identified the area of discrimination as employment only, not vocational association, and because of that the applicant cannot be successful in his claim when the employer no longer is a party.

18The Union states that the Application primarily is an employment claim and because the applicant has resolved the Application as against the employer, it would be an abuse of process to allow the applicant to continue against the Union.

19In addition, the Union alleges the Application has no reasonable prospect of success as there are no allegations of a failure to act on the part of the Union and no nexus between the applicant’s disability and any conduct of, or inaction by, the Union. In addition, the applicant has not claimed differential treatment on the basis of his disability.

20The Union submits that the Tribunal has no jurisdiction to consider allegations of unfairness, specifically in this case with respect to how the Union represented the applicant. The Union referred the applicant to a job for which he had to be fully fit, was chosen preferentially out of turn because of his skills and was laid off by the employer because of the results of its required medical examination.

21Finally, the Union submits that if the Application was allowed to proceed, it would be an abuse of process because there is no remedy that could be imposed that would not likely be estopped by the settlement between the applicant and the employer.

22The Union relies on Holowka v. Ontario Nurses Association, 2010 HRTO 2171 (“Holowka”); Traversy v. Mississauga Professional Firefighters’ Assn. (“Traversy”), 2009 HRTO 996; Brown v. Kensington Garden, 2012 HRTO 1511 (“Brown”); and Chao v. Canadian Union of Public Employees (“Chao”), 2013 HRTO 199.

APPLICANT’S SUBMISSIONS

23The applicant relies on Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970 (“Renaud”), to argue that a union which causes or contributes to a discriminatory effect on an employee because of the ground protected under human rights legislation incurs liability under employment.

24The applicant submits that the Union formulated a work rule, namely Rule 8, that had a discriminatory effect on him and that the Union collects .005 cents to .010 cents per hour for the injured worker to accommodate WSIB requirements which is motivation to deny work to someone that may re-aggravate an injury.

25The applicant further alleges that he was reprised against by the Union because he complained about the Union representation of him during the functional abilities interview with the employer’s health and safety representative.

26He further submits that the Union reprised against him on two bases, although these were not set out in the Application:

a. it chose not to accommodate him in the job; and

b. it did not support the applicant in the training he wished to do offered by the Ministry of Labour.

RESPONDENT’S REPLY

27With respect to Renaud, the Union submits that the Court drew a distinction between discrimination in the employment context and in the context of membership in a trade union, and emphasizes that the applicant has pleaded only discrimination in employment.

28The Court in Renaud states that a trade union’s liability for discrimination will be engaged only in two circumstances:

a. If the union participated in the formulation of a work rule that has a discriminatory effect on the complainant; and

b. If the union impedes the reasonable efforts of an employer to accommodate.

29The Union submits that Rule 8 was introduced in July 2012, after the alleged discrimination. Because it did not exist at the time of the applicant’s allegations, it could not have been applied to the applicant.

30Second, the Union submits that Rule 8 relates to referral to work, not to accommodation in the workplace, and the applicant does not allege that he was not referred to work and in fact was referred preferentially. There are no allegations that the Union had any role in setting the physical requirements of the job or in the layoff decision.

31The Union submits that Rule 8 likely would be found to be a bona fide occupational requirement (“BFOR”), and also it is not an employment rule but is a policy issued to guide the Union in its referral of members and is designed to avoid safety hazards.

DECISION

32Although the Union has asked that I apply s. 45.1 of the Code and dismiss the Application because its substance has been appropriately dealt with in another proceeding, I find that, as in Holowka, it is not clear to me that the settlement reached in this case between the applicant and his employer could be considered “another proceeding”. In this case, I prefer to analyze whether the Application has a reasonable prospect of success.

33First, the applicant has pleaded discrimination only with respect to employment. The Union is not the applicant’s employer.

34Even assuming that this in itself is not a bar to the applicant’s claim against the Union, I find that neither of the circumstances required by Renaud to make the Union a party to the alleged discrimination was present in this case. The Union neither participated in a work rule that had an allegedly discriminatory effect on the applicant nor impeded any effort by the employer to accommodate the applicant.

35I need not determine whether Rule 8 would be found to be a BFOR in this case, and in any event, it would be premature to do so. With respect to Rule 8, it may be troubling given that it seems to state that only those with no medical restrictions will be referred for work, but not only did it come into effect after the events on which the applicant relies in his Application, but the facts do not support finding that it, or the concept stated in it (the by-law was not passed until July 1, 2012 and became effective on August 1, 2012), was applied in this case. The applicant in fact not only was referred to the job but was referred to it preferentially. He also was referred to other Union work six weeks after this lay off.

36The applicant provided no evidence that the Union impeded any effort by the employer to accommodate the applicant. The employer in this case did not try to accommodate the applicant in any way but laid the applicant off before he began the job. Therefore, the facts alleged do not provide a sufficient basis on which I could find that the Union caused or contributed to the discrimination against the applicant.

37The applicant provided no evidence that the Union had any say in the employer’s decision with respect to the lay off or in setting the fitness requirements for the job.

38With respect to the allegations that the Union discriminated against the applicant on the basis of the applicant’s disability, the applicant provided no evidence of a nexus between his disability and any conduct of, or inaction by, the Union. The applicant has not claimed differential treatment on the basis of his disability. In addition, an allegation that the Union failed to act is not discriminatory unless it is based on a prohibited ground (see: Traversy, Chao and Brown).

39Finally, with respect to the applicant’s allegations of reprisal, although the applicant alleged reprisal in his Application, the facts to support such a claim were not included, and the applicant provided no details to support such a finding.

40In his submissions with respect to the respondent’s request for dismissal on the basis of no reasonable prospect of success, the applicant set out his reprisal allegations for the first time. He states that the Union sent a representative to the Functional Abilities meeting and that resulted in the employer assigning him as having no restrictions, which in his view was contrary to his doctor’s recommendation (despite his doctor’s August 4, 2010 report that states he is medically fit to return to work without restrictions and despite his advising the Union that it was the employer’s nurse who gave him the restrictions).

41The applicant complained that the Union failed to represent him because of his complaint about the Union representative’s uselessness at the Functional Abilities meeting. For this reason, he alleges that the Union sent someone else to the job instead of him and that person did not have to weld, which meant the applicant could have done the job. He further alleges that it is the Union which made the decision not to accommodate the applicant and this amounts to a reprisal.

42The applicant alleges further reprisal by the Union because it would not sign a form to allow him to save money on training he wished to take through the Ministry of Labour, advising him that the training was inferior.

43Not only are the applicant’s allegations raised at a very late stage of these proceedings, but even if an amendment to the Application was allowed, the allegations do not support a finding of reprisal. There is no indication that the Union took or failed to take any action because the applicant asserted his rights under the Code. In fact it referred him to the job. Even assuming the Union failed to properly represent him when the employer made the decision to lay him off that is an issue relating to Union representation and is not a reprisal. In addition, if the failure to represent him occurred because of his complaint that the Union representative was useless, this is not an assertion by the applicant of any Code-protected right in response to which the Union could reprise, within the meaning of the Code, against him.

44The failure to sign a form for the applicant to take training ostensibly occurred in February 2014, approximately 15 months after the Application was filed. The applicant has not asked to amend his Application to include new allegations, and even if he had done so, I find that it is too late in the day.

45In deciding requests to amend an application the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend and the prejudice to the respondent. See, for example, Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.

46I find that there would be prejudice to the Union given that the allegation was raised at this late stage in the proceeding.

47For all these reasons, the Application is dismissed.

Dated at Toronto, this 17th day of July, 2014.

“Signed by”

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Dawn J. Kershaw Vice-chair