Gail Ross v. UNITE HERE Local 75, 2014 HRTO 1304

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gail Ross

Applicant

-and-

UNITE HERE Local 75

Respondent

DECISION

Adjudicator: Jay Sengupta

Date: September 3, 2014

Citation: 2014 HRTO 1304

Indexed as: Ross v. UNITE HERE Local 75

APPEARANCES

Gail Ross, Applicant

Self-represented

UNITE HERE Local 75, Respondent

Jorge Hurtado, Counsel

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

2In a Case Assessment Direction dated March 17, 2014, the Tribunal directed, on its own initiative, that a summary hearing would be held to determine whether this Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed. The respondent was not required to file a Response.

3Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

19A.1 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.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

4Details about the nature of a summary hearing were 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.

5The Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code.

6The Tribunal has held that it is not discrimination for a union or association to fail to adequately represent its members, unless the reason for doing so was based on one of the grounds in the Code. In Traversy v. Mississauga Professional 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.

See also Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025, at paras. 16-18.

7In this case, it appears that the applicant alleged that the respondent failed to represent her adequately.

8During the teleconference hearing, the applicant provided submissions. She said that after a workplace injury, she contacted the respondent to ask that a representative of the union accompany her to a meeting with the employer and the WSIB. She says she called several shop stewards and left numerous messages with stewards of the representative union. The shop steward for her workplace, Mr. Salman, did not respond to any of the messages and sent someone unfamiliar with her case called Ms. Babington to attend. Ms. Babington tried to assist the applicant by getting Mr. Salman, the shop steward, to call her back but he never did get back to the applicant to provide her with any assistance.

9She says the time to file her grievance expired without the shop steward ever contacting her despite all her attempts to get his help. She believes that the respondent union abandoned her when she needed assistance and that they neglected their duty to her as a union member.

10Counsel for the respondent union attended on the conference call but elected to make no submissions.

11Even assuming all of the allegations made by the applicant to be true, and assuming that the union officials in question behaved in a neglectful and incompetent manner resulting in harm to the applicant, there is no claim or factual foundation that the failure of the union to take the necessary steps to protect the applicant’s interests was based on discriminatory factors.

12Accordingly, there is no reasonable prospect that it will succeed. The Application is dismissed.