Toop v. Canadian Union of Public Employees, 2014 HRTO 145

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sheryl Toop

Applicant

-and-

Canadian Union of Public Employees ("CUPE"), CUPE Ontario, Paul Moist, Nancy Rosenberg, Barbara Williams, Patrick (Sid) Ryan, Candace Rennick, Linda Thurston-Neeley, CUPE Local 1974, Louis Rodrigues, Ken Bethune and Mitchell Vivian

Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin
Date: January 31, 2014
Citation: 2014 HRTO 145
Indexed as: Toop v. Canadian Union of Public Employees

APPEARANCES

Sheryl Toop, Applicant

Self-represented

CUPE, CUPE Ontario, Paul Moist, Nancy Rosenberg, Barbara Williams, Patrick (Sid) Ryan, Candace Rennick and Linda Thurston-Neeley, Respondents

Peter Englemann, Counsel

CUPE Local 1974, Louis Rodrigues, Ken Bethune and Mitchell Vivian, Respondents

David Yazbeck, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code") in which the applicant alleges that the respondents discriminated against her with respect to employment and her membership in a trade union. This Interim Decision addresses whether or not the 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.

Background

2The Application arises out of the applicant's employment with Kingston General Hospital and her involvement and interactions with her local union CUPE Local 1974 ("Local 1974" or "the Local"), CUPE Ontario and the national union CUPE ("CUPE National" or "CUPE") along with various individuals who are associated with one of the aforementioned entities. The Application was originally filed against five organizational respondents and 14 individual respondents. The applicant subsequently settled her claim against certain respondents and consented to remove a law firm and individual lawyer as respondents.

3The applicant was employed by Kingston General Hospital as part-time medical secretary from April 2007 to June 2009. While employed the applicant was a member of Local 1974. The personal respondents Rodrigues and Bethune were officers of the Local occupying the position of president and vice-president respectively at the relevant time, and the respondent Vivian appears to have been a member. During her employment, the applicant was active in Local 1974 as a union steward and a candidate for a trustee position in a union election. Based on the material filed, it is apparent that the applicant was critical of the then leadership of Local 1974 and that there was conflict between the applicant and certain members of the executive and Local. During her employment, the applicant complained to various representatives of CUPE National and CUPE Ontario (Paul Moist, National President; Linda Thurston-Neeley, Assistant Director Ontario; Barbara Williams, National Representative; Nancy Rosenberg, Director Legal Branch; Candace Rennick, CUPE Ontario Second vice-president; and Sid Ryan, CUPE Ontario president) about her treatment by the Local, including alleging that she was being discriminated against based on her sex. The applicant was terminated from her employment on June 15, 2009.

4The applicant alleges that the respondents discriminated against her with respect to employment and/or union membership on the basis of disability, sex, association with individuals identified with a prohibited ground (namely sex) and marital status. The allegations against the Local 1974 and the related individuals ("the local respondents") include that the applicant was subjected to discrimination in connection with her attendance at union meetings, in notices during an election campaign, in a trespass notice issued to her, in the commencement of a defamation action and in the Local's opposition to her request for an adjournment during a union trial process and a proceeding at the Ontario Labour Relations Board ("OLRB"). The allegations against CUPE National, CUPE Ontario and the related individuals include the complaint that these respondents failed to investigate the applicant's allegations of discrimination against local respondents.

5Shortly after the Application was filed, the Tribunal sought submissions on whether or not it was appropriate to defer the Application. The applicant had filed a grievance against Kingston General Hospital contesting her termination from her employment. The applicant had also filed a number of applications against certain of the respondents at the Ontario Labour Relations Board: one under s. 74 of the Labour Relations Act, 1995, S.O. 1995, c. 1, as amended ("LRA"), alleging a breach of duty of fair representation for the alleged failure to refer a verbal warning discipline grievance to arbitration; another under s. 87 of the LRA regarding alleged reprisals; and a third under s. 92 of the LRA regarding the Local Union's financial statements. The applicant was also named as a defendant in a defamation action, along with two others, by Rodrigues and Bethune, respondents in this proceeding, as well as five other individuals.

6By Interim Decision 2009 HRTO 2254, the Application was deferred pending the conclusion of the grievance process and the s. 74 and s. 87 applications at the OLRB. In light of the determination to defer, the Tribunal also stated that the respondents were not required to file a Response to the Application.

7The applicant subsequently filed a second application under s. 74 of the LRA, alleging a breach of duty of fair representation for failure to refer her termination grievance to arbitration.

8On June 15, 2012, the Tribunal received a signed Form 25, confirming that the Application was settled against one organizational respondent and the related individuals. Shortly thereafter, on June 29, 2012, the applicant filed a Request for Order During Proceeding to re-activate her deferred Application. In addition, the Tribunal received two Requests for Summary Hearing: on July 31, 2012, the then named law firm respondents (the law firm representing Local 1974 and the individual lawyer from the law firm acting on certain matters for the Local) filed a Request, and on September 14, 2013, the respondents CUPE, CUPE Ontario and related respondents Paul Moist, Nancy Rosenberg, Barbara Williams, Patrick (Sid) Ryan, Candace Rennick and Linda Thurston-Neeley (the "national respondents") filed a Request.

9By Interim Decision 2012 HRTO 2382, the Application was reactivated and by separate Case Assessment Direction the Tribunal directed, on its own initiative, that a summary hearing would be held with respect to the applicant's allegations against CUPE Local 1974, Louis Rodrigues, Ken Bethune and Mitchell Vivian (the "local union respondents"). The summary hearing was initially scheduled for April 8, 2013, but was adjourned because the applicant had not received the materials filed by the law firm respondents. The summary hearing resumed on June 27, 2013, and continued for a full day. During the summary hearing, on consent of the parties, the law firm respondents were removed as parties. This ruling was confirmed by a Case Assessment Direction dated June 27, 2013.

10Following this ruling, the applicant objected to the continuing presence of the lawyer who had originally been a law firm respondent on the basis that the lawyer had a conflict of interest. The local union respondents disagreed and stated that the representative was participating only as an observer. I ruled that the representative could continue on the conference call as an observer. The Tribunal's Rules of Procedure and its case law make it clear that its proceedings, other than mediation, are open to the public unless exceptional circumstances exist which would justify the Tribunal ordering otherwise. The applicant had not provided any reason justifying an order excluding the lawyer.

11The applicant then asked for an adjournment on the basis that she would also like an observer present. The remaining parties opposed the adjournment. While I scheduled a short break, I denied the adjournment. The Tribunal's Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments makes it clear that adjournments are only granted in extraordinary circumstances such as illness of a party, witness or representative. I did not find that the presence of an observer, even unanticipated, to be an extraordinary circumstance justifying an adjournment so that the applicant could arrange for her own observer to be present.

12At the end of the summary hearing, the applicant requested and was given the opportunity to file further submissions on whether the Code imposes a legal obligation of the union to investigate and respond to complaints of discrimination and harassment. Further submissions were filed by all parties.

13In arriving at the decision below, I have considered all of the material filed, as well as the submissions made prior to, during and following the summary hearing.

Relevant Provisions of the Human Rights Code and Legal Framework

14The relevant provisions of the Code provide as follows:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. R.S.O. 1990, c. H.19, s. 5 (1); 1999, c. 6, s. 28 (5); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (5); 2012, c. 7, s. 4 (1).

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. R.S.O. 1990, c. H.19, s. 5 (2); 1999, c. 6, s. 28 (6); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (6); 2012, c. 7, s. 4 (2).

6. Every person has a right to equal treatment with respect to membership in any trade union, trade or occupational association or self-governing profession without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability. R.S.O. 1990, c. H.19, s. 6; 1999, c. 6, s. 28 (7); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (7); 2012, c. 7, s. 5.

7. A right under Part I is infringed where the discrimination is because of relationship, association or dealings with a person or persons identified by a prohibited ground of discrimination. R.S.O. 1990, c. H.19, s. 12.

15In addition, reference is made to Rule 19A of the Tribunal's Rules of Procedure which provides in part that:

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.

16In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9, the Tribunal made the following observations about the approach in a summary hearing:

In some cases, the issue at the summary hearing may be whether, assuming all of 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.

17As the Tribunal further explained in Forde v. Elementary Teachers' Federation of Ontario, 2011 HRTO 1389 at para. 17:

The Tribunal does not have the power to deal with general allegations of unfairness. For an application to continue in the Tribunal's process, there must be a basis beyond mere speculation and accusations to believe that an applicant can show discrimination on the basis of one of the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one's Code rights.

18In the Tribunal's Case Assessment Direction in this matter, the applicant was directed to make argument about why the Application should not be dismissed and point to the evidence on which the applicant would prove a link between the respondents' action and the grounds cited. In addition, the parties were directed to be prepared to address all of the issues and arguments raised in the Requests for Summary Hearing. Finally, the Tribunal stated that the parties should also be prepared to make argument about whether or not the Application should be dismissed, in whole or in part, with respect to any of the respondents: (i) pursuant to s. 45.1 of the Code; (ii) on the basis that it would be an abuse of process for the Application, or part of the Application, to proceed; or, (iii) based on the doctrine of issue estoppel.

19I begin first with whether or not there is no reasonable prospect of the applicant establishing a link between her allegations of discrimination and the prohibited Code grounds cited in the Application.

20Before addressing the applicant's allegations in detail, it is important to highlight the nature of the claim advanced by the applicant. In the Application, the applicant framed her allegations by attaching Appendices setting out the specific factual allegations underlying each ground relied on. This framing of the allegations formed the basis of the parties' submissions in the summary hearing and for the most part, my considerations of the issues below.

Allegations based on Disability

21The applicant's allegations based on disability arise from the actions of the respondents in two legal proceedings (an appeal of charges of harassment against the applicant brought by certain members and officers Local 1974 and a hearing into a s. 74 application alleging a breach of the duty of fair representation at the OLRB). For the most part, the relevant facts are set out in documentation which was referenced in the summary hearing and do not appear to be in dispute.

22On May 29, 2009, the applicant sought an adjournment of the June 19, 2009 CUPE National Executive Board trial appeal panel hearing pertaining to the charges of harassment because she was "too unwell to attend". In particular, the applicant emailed the respondent Rosenberg (Director of Legal Branch for the respondent CUPE) advising that she had been on sick leave since April 9, 2009, and that her doctor felt that she should be off until at least June 26, 2009. The local respondent Mr. Bethune objected on behalf of the "accusers" stating that the applicant had been involved in matters concerning the local union during her sick leave (citing examples) and offering to accommodate the applicant by having her participation by telephone or in having the hearing relocated to Kingston if that location was easier for the applicant. Ms. Rosenberg forwarded the objection to the applicant and asked for a "written submission, including medical documentation". The applicant did not respond and the adjournment was denied by the Appeal Panel.

23In the Application, the applicant asserts that the respondents had no "legal right to expect me to forfeit my right to the privacy and confidentiality of my personal medical information [and] therefore, I did not respond to their demand."

24In or around the same time the applicant sought an adjournment of a hearing at the OLRB into the s. 74 application alleging a breach of the duty of fair representation in connection with Local 1974's decision not to refer a verbal warning discipline grievance to arbitration. Local 1974 objected, indicating that it was not persuaded that the applicant was unable to participate and specifying the reasons including the applicant's participation in membership meetings. The Local suggested alternate ways of proceeding. The OLRB adjourned the consultation on the condition that the applicant provide satisfactory written confirmation from a physician that, due to her condition, she was not able to personally appear and participate as a litigant in a legal proceeding on June 2, 2009.

25The applicant alleges that in each of these incidents she was discriminated against on the basis of disability (presumably by CUPE, Ms. Rosenberg and Local 1974 in the first incident and by Local 1974 in the second incident). In the Application, the applicant alleges that the respondents unreasonably disregarded her request for an adjournment due to medical reasons, "thereby exercising harassment and discriminating against me on grounds of disability". The applicant also alleges that she was pressured to participate in a meeting under duress while her medical condition was impaired.

26During the summary hearing, when I asked the applicant to explain her position with respect to the Appeal Panel proceeding, she stated that her claim has more to do with protection of her personal health information than the Code. The applicant stated that she did not consider the proceeding as a "real legal proceeding" and thus did not consider that the Panel was entitled to medical information. With respect to the allegation against Local 1974, the applicant stated that the Local knew she was on a medical leave and while acknowledging that she did participate in some union activities, submitted that there was a different level of participation that would be required in the appeal proceeding. The applicant made no further submissions about the proceeding at the OLRB or how she was pressured to participate while her medical condition was impaired.

27I find that there is no reasonable prospect that the applicant will be able to establish that she was discriminated against based on disability in either of these incidents by any of the respondents.

28With respect to the allegation against CUPE National and the related individuals, even assuming without finding that the conduct of the appeal panel falls within the social area of membership in a trade union, I find that the applicant has no reasonable prospect of establishing that the appeal panel's consideration of the objection and the denial of the request for an adjournment was discriminatory.

29In considering these allegations, I do not find I need to determine whether or not the hearing under the union constitution was a "legal proceeding". Pursuant to the terms of the constitution that governed the relationship between the union and its members, the applicant appealed a finding made against her and an appeal panel was appointed to hear the appeal. In carrying out its role under the constitution, I accept that the appeal panel was entitled to determine the validity of the applicant's request for an adjournment, based on her medical situation. At the very least, the mere fact that the applicant was asked to substantiate her request for an adjournment of the hearing is insufficient to establish that the applicant was treated in a disadvantageous manner "because of" her disability, which is what a finding of discrimination would require. This is particularly the case where the information before the panel reflected that the link between the applicant's disability and her need for adjournment was not clear given that the applicant had participated in other activities during her sick leave.

30Further, I find that there is no reasonable prospect that the applicant will be able to prove that she was discriminated against by the decision to deny the adjournment. Based on the facts plead, the applicant elected to not provide any medical information and/or submissions to the panel. In effect, the applicant's failure to respond amounts to a failure to participate in the accommodation process. In the result, I find there is no reasonable prospect that the claim of discrimination on the basis of disability could succeed.

31For the above reasons, the allegations against the National respondents based on disability are dismissed as having no reasonable prospect of success.

32With respect to the allegations against the Local respondents, I reach the same conclusion. Again, I assume without finding that the allegations fall within the social area of union membership and/or employment.

33In essence, the applicant's allegations against the local respondents arise from positions taken by the local respondents in two separate proceedings. The applicant's allegation is that the Local knew she was off on a medical leave and thus had a legitimate need for an adjournment so the opposition by the Local (in the case of the OLRB proceeding) and the local individuals (in the case of the appeal panel) was discriminatory.

34I do not find there is a reasonable prospect of the applicant establishing a claim that she has been disadvantaged by the conduct of the local respondents. At best, the applicant's allegations amount to positions taken in a proceeding with any result (and thus alleged disadvantage) being determined by the entity adjudicating.

35However, even if taking a position can form the basis of a claim of discrimination, I find that the applicant has no reasonable prospect of establishing her claim. The applicant did not dispute that she had participated in some activities of the Local, nor did she challenge the documentary material submitted. Based on the facts presented, I cannot conclude that it was unreasonable to raise a question about the validity of the applicant's need for an adjournment, and thus, I would not find it discriminatory. Further, the content of the submissions made by the respondents in each proceeding is measured in its tone acknowledging that the applicant was on sick leave but raising the issue that the applicant had been involved in and participated in meetings and querying whether the applicant could be accommodated in other ways. While the applicant in the summary hearing stated that participating in an appeal panel is different from participating in other local activities, there is no suggestion that the applicant made this known at the time. In short the applicant has not pointed to any evidence which would show that the Local was unreasonably opposing the adjournment.

36For all of the above reasons, I find there is no reasonable prospect of the applicant establishing that she was discriminated against by the Local and/or the related individuals based on disability.

37The allegations based on disability are therefore dismissed as against all respondents.

Allegations based on Marital Status

Allegations against the Local Respondents

38The applicant's allegations based on marital status are primarily directed at Local 1974 and the related individuals and appear to be based on the social area of membership in a trade union (although the applicant did not expressly address this in her submissions).

39The applicant states that she is married to someone who works for CUPE National and that the local respondents Rodrigues and Bethune saw her as a threat to be eliminated because of her husband's senior staff position with CUPE National. The applicant alleges that the respondents Rodrigues and Bethune took every opportunity to "slam my character, undermine my credibility and treat me with hostility and ill will including harassment and discrimination".

40The applicant's particular allegations include:

• On March 5, 2008, the applicant allegedly experienced a bullying incident when the respondent Bethune allegedly threatened to call hospital security and have the applicant removed from the union office because she was requesting information he had promised her and then reneged on providing it to her. When the applicant informed Bethune that she would appeal Local 1974's decision to CUPE National, Bethune allegedly stated, "I know who your husband is". When the applicant followed up with a letter to Bethune, the applicant alleges that the Local respondents circulated a smear campaign document entitled "Clarification Document From the Executive – CUPE Local 1974" which the applicant alleges contained false statements about her attendance at membership meetings and other statements intended to hurt her reputation and call into question her eligibility to seek an elected position within the Local or participate equally in the union.
• A petition was allegedly circulated throughout the hospital by the respondents Bethune and Vivian, asking people to sign and have the applicant banned from actively functioning as a CUPE member (the content of which expresses that the undersigned are, among other things, "extremely upset and concerned with the destructive and divisive agenda" that the applicant and those associated with her are executing over the past two months leading up to local elections).
• The local respondents allegedly did not invite the applicant to executive board meetings although she was a steward, and when she emailed the respondents Bethune and Rodrigues about their lack of availability and response to her, Bethune allegedly informed her that he and Rodrigues were unwilling to communicate with her and that she should go through the chief steward or the respondent Williams.

41In support of her allegations, in addition to the comment allegedly made by the respondent Bethune about knowing who her husband is, the applicant relies on comments allegedly made to her by the respondent Williams, a national representative informing her that the Local had a "paranoia" about the applicant having "an agenda", i.e. the applicant's husband was "trying to do something to them" and "trying to get Rodrigues out of the political arena", although the respondent Williams had assured Bethune otherwise. In addition, when the applicant conversed with the respondent Williams about the lines of communication in Local 1974, the respondent Williams allegedly told her that the local executive officers were frustrated because they perceived she had better access to CUPE than they did, presumably because of her husband's connections.

42Further, in the oral submissions in the summary hearing, the applicant alleges that when the petition was circulated, one of the signatories told her that there was a lot of talk about her husband (that the applicant had a destructive agenda and her husband was "trying to get rid of Louis", allegedly referring to the respondent Rodrigues).

43The Local 1974 respondents submit that there is no reasonable prospect of establishing a link between the above-noted allegations and the applicant's marital status. The Local respondents submit that with respect to Bethune's alleged comment, there is no indication that something was done to the applicant because of her husband. The Local respondents submit that the "clarification document" was a response to election material and does not mention the applicant's marital status. Similarly, the Local respondents submit that the petition was circulated and signed by a number of members in the hopes of banning the applicant from membership meetings because of the applicant's destructive agenda and that it had nothing to do with her marital status or any other protected ground. As for executive board meetings, the Local respondents state that stewards are not, by virtue of that office, members of the executive board and thus the applicant had no right to attend the meetings.

44None of the parties made express submissions as to how the allegations fit within the social area of membership in a trade union, although arguably I cannot conclude that there is no reasonable prospect that the allegations may be found to relate to union membership in a broad sense.

45At this preliminary stage, it is not appropriate to make any factual or legal findings with respect to these allegations. However, having heard and considered the allegations on marital status, including the proposed evidence referenced by the applicant to support her allegations, I am unable to conclude that these allegations have no reasonable prospect of success. The allegations against the Local respondents based on marital status will therefore continue to be processed.

Allegations against CUPE National and related respondents

46With respect to CUPE and the related respondents, the applicant makes two allegations based on marital status – first, that the Appeal Panel's finding of personal harassment constituted discrimination based on marital status, and second, that CUPE National's handling of her complaints was adversely impacted by her marital status.

47With respect to the former, the applicant states in the Application that the decision of the appeal panel was "predetermined by Respondent Moist to get rid of me and the facts didn't really matter". The applicant states that this was a "spectacular example of conspiracy and abuse of process by people in positions of power over me as a CUPE member and over my husband as a CUPE employee".

48In her oral submissions, the applicant did not point to any specific evidence that she would rely on to link the decision of the panel with her marital status.

49I find there is no reasonable prospect that the applicant will be able to establish that the national respondents discriminated against her in this alleged incident because of her marital status. Even assuming without finding that the decision of the appeal panel can be viewed as falling in the social area of union membership, apart from the applicant's bald assertion, during the summary hearing, the applicant was unable to point to any evidence linking the decision of the panel with her marital status. The respondent Moist is not identified in the supporting documents as a member of the panel nor has the applicant pointed to any evidence that she would call that would support the suggestion that he was involved in the process. This allegation is dismissed against CUPE and related respondents.

50I also find that there is no reasonable prospect that the applicant will be able to prove that the National respondents discriminated against her on the basis of marital status in the handling of her complaints.

51The applicant argues that the CUPE respondents ignored her complaints of alleged discrimination because of marital status. The applicant alleges there was a concern with "optics". The applicant linked it back to the perception of the Local and their view that she had better access than the Local did to CUPE National (i.e. because of who her husband was).

52At the summary hearing, the applicant pointed to a single comment made by the respondent Williams as evidence of a link. The applicant states that Ms. Williams expressed concern to her boss that it "rattled her a bit" when seeing the "from line" on the applicant's emails from home (because it referenced the applicant's husband's name who worked for the National). The applicant did not point to any other evidence of a link, although she referenced that she has never seen a report addressing the concerns she raised.

53In the Application, the applicant stated that Ms. Williams found the reference in the "from" line of emails to the husband's name "disconcerting and confusing".

54In the Application, the applicant also references that on May 19, 2008, when the applicant asked about the status of her concerns, Ms. Thurston-Neeley said it would have to wait and complained about her workload saying, "I'm not the servicing rep and I'm not the Local. I'm feeling like monkey in the middle". In addition, the applicant states that on June 3, 2008, while discussing a general membership meeting at the Local with Ms. Thurston-Neeley, the applicant mentioned that at the meeting she had spoken about the fact that she happened to be married to someone who works for CUPE. The applicant alleges that Ms. Thurston-Neeley responded by asking why the applicant had done that and stating that she does not tell anyone who her husband is (who also works for CUPE). The applicant alleges in the Application that these comments reflect bias or a lack of neutrality toward her concerns.

55In their Request for Summary Hearing, the National respondents submit that even if these comments or situations occurred they would not constitute discrimination. Further, the respondents argue that some of these allegations are only bald assertions of the applicant's own personal belief and interpretation of facts. In this respect, the National respondents rely on the applicant's own language in the Application, such as the applicant "believes Thurston-Neeley resented the extra workload that came with the Local 1974 investigation file and because of the politics and optics of my husband's senior staff position in CUPE".

56I agree with the submissions of the National respondents.

57The applicant highlighted specifically the comment of Ms. Williams being "rattled" by the applicant's email address and in the Application referenced that Williams found this "disconcerting and confusing". However, even assuming Ms. Williams made this comment, the applicant has not explained how the comment is linked to the National union (or Ms. Williams herself) ignoring the applicant's complaints. In my view, the mere fact that Ms. Williams is unsettled or confused by the email address does not support the inference that the applicant's complaints would be treated in a negative manner. Moreover, the applicant did not explain how there was a nexus between this comment and the handling of her complaints generally. In fact, based on the applicant's material (including the particulars she provided about her allegations with the Application), it appeared that it was other CUPE representatives who were meeting with the applicant about her complaints (see, for example, the meeting on October 17, 2008 particularized in the Application). In the result, I do not find that the alleged comment attributed to Ms. Williams, even assuming it was made, is a basis upon which I could reasonably conclude that the applicant's complaints had been or would be ignored because of her marital status.

58Further, I am not convinced that there is a reasonable prospect of the applicant proving that Ms. Thurston-Neeley's comment about workload or her query why the applicant identified who she was married to in a membership meeting are indicative of any bias or lack of neutrality in the consideration of her complaints based on marital status. In the case of the former remark, beyond the applicant's stated belief, there is no apparent connection to marital status. Ms. Williams allegedly felt caught between the national and the local but there is nothing in her remark, if it was made, relating to the applicant's marital status in general or her husband in particular. In the case of the latter remark, assuming without finding that it was made, Ms. Williams suggested that the applicant should not have told the membership about her husband working at the National Office. However, the mere fact that Ms. Williams said this, if she did say it, is not sufficient to establish that the identity of the applicant's husband affected the way in which Ms. Williams or the National dealt with the applicant's complaints.

59The applicant acknowledges that her interpretation is based on a perception insofar as after referencing the remarks, she states "I perceived that Thurston-Neeley had, whether consciously or unconsciously, an apprehension of bias … and would not fairly apply herself to the concerns I brought". At best, the applicant appears to be speculating about Ms. Thurston-Neeley's motives. As stated in Forde, referred to above, there must be something beyond mere speculation for an application (or in this case an allegation) to continue in the Tribunal's process.

60For the above reasons, the allegations that CUPE National's handling of her complaints was adversely impacted by her marital status are dismissed as having no reasonable prospect of success.

Allegations based on Sex and Association with Members of a Group (i.e. identified by sex) against the Local 1974 Respondents

61The applicant makes a number of allegations against Local 1974 and the related individuals based on sex/gender and/or association with persons identified by sex. In general terms, the applicant alleges that she was subjected to adverse treatment by the local union respondents because of her sex and/or because of her association with a group of "women activists" in Local 1974 who were challenging the status quo.

62At the summary hearing, the applicant agreed with the following summary of her specific complaints based on sex and/or association against the Local respondents:

• First, there is a complaint about the behaviour of the local executive, including the named local respondents, at various membership meetings identified as taking place on June 2, 2008, June 30, 2008, July 9, 2008, February 28, 2009, and September 17, 2009 (although it would appear from the Application that the September 17th date was in 2008);
• Second, there is a complaint about a voicemail message left by the respondent Rodrigues in the voicemail boxes of members who worked in nutrition services;
• Third, there is a complaint about the participants in the employer's apprenticeship program and about the choice of delegates to CUPE Ontario's First Annual Trades Conference;
• Fourth, there is a complaint about comments made about the applicant's attempts to attend a Women's Equality Conference;
• Fifth, there is a complaint about a Trespass Notice sent to the applicant by the Local respondents notifying the applicant that she could not enter the union hall;
• Sixth, there is a complaint about the defamation action launched by Local 1974 against the applicant; and
• Seventh, there a complaint about a posting of notice in the workplace addressing the cancellation of a union meeting.

63I find that there is no reasonable prospect that the allegations based on sex and/or association with other women will succeed. In addressing the allegations, I have assumed, without finding that, the matters complained, would arguably fall within the social area of membership in a trade union.

Behaviour of the Local respondents at Membership Meetings

64The applicant's allegations about the membership meetings stem from conduct and comments that she alleges was directed at her and other "women activists". As set out above, the applicant was an active member of the union participating as a steward and running for a trustee position in the union election in 2008. The supporting material included with the Application documents how the applicant and two other women in the Local raised issues about the alleged lack of accountability and transparency in Local 1974. According to the applicant, the leadership of the union was "male-dominated" at the applicable time (although, after hearing the respondents' submissions, the applicant agreed that two of the five officer positions and two of the three trustees were female, thus reflecting what appears to be an equal split between males and females).

65The applicant specifically alleges that any time she or "other women" tried to speak at meetings, debate was stifled. With respect to particulars, based on the applicant's submissions at the summary hearing and the particulars in the Application, it would appear that the applicant relies on the following:

• On April 28, 2008, the applicant attended a local general membership meeting along with "several women activists" wearing pink T-shirts. The applicant alleges that the Local 1974 executive officers and their "cadre took umbrage with our anti-bullying message, and their harassment and mobbing behaviour towards us escalated".
• At a local union meeting on June 2, 2008, the applicant alleges that she attempted to speak about where the idea of wearing pink T-shirts came from but was ruled out of order by the Respondent Rodrigues and threatened with ejection. The applicant states that when another "woman activist" spoke on the matter, it became clear that the local executive officers and their "cadre" believed that "we, as a group, were attacking the executive and therefor the whole membership" and the "mobbing behaviour" continued to escalate;
• At a meeting on June 30, 2008, the applicant alleges that the respondent Rodrigues threatened to eject anyone ruled out of order for being disruptive which the applicant alleges clearly targeted her and other women activists sitting in the front row. While presiding as chair, the applicant states that the respondent Rodrigues picked an argument with two women associated with the applicant, accusing them of calling him a "basket case". When the applicant spoke up, Rodrigues ordered the applicant removed. The applicant states that she called the police and, as she left the room, she was followed by five women who also felt threatened. The applicant states that the respondent Vivian stated "There goes Toop and her troop".
• At a special membership meeting on July 9, 2008, the applicant alleges that Respondent Rodrigues stated: "We're trying to make this new guy or CEO or Axe-man come in and say; we better be careful because there's a lot of publicity". The applicant alleges that the possibility that a new Hospital CEO could be a woman did not seem to be in Rodrigues' "perception field".
• At the same meeting, the applicant alleges that the local executive officers put forward a motion to hire off-duty police officers to attend meetings so that inappropriate behaviours would be avoided, which the applicant alleges was to falsely portray her and "other women associated with her" as security risks. The applicant alleges that in the debate that ensued, "women activists spoke about discrimination towards our group while the male-dominated executive continued its campaign of disinformation, coercion and intimidation".
• At the conclusion of a special membership meeting for the election of trial committees under the CUPE constitution on September 17, 2008, the applicant alleges that the respondent Vivian commented to two other members, "Let's hang her," referring to the applicant as the accuser in a matter before the committee of which he was a member. The applicant alleges that the two other members were so offended that they wrote the executive and asked that he be removed (although ultimately he was not removed).
• At the conclusion of a local meeting on January 26, 2009, the applicant alleges that the respondent Vivian stormed to the front row and confronted a "woman activist" associated with the applicant, coming inappropriately close to the applicant and making physical contact with her. The applicant warned Vivian to get out of her "space".
• At a meeting on February 28, 2009, the applicant states that Mr. Rodrigues was announcing the results of the local trial panel that she later appealed. The applicant alleges that she stepped up to the microphone to raise a concern about the president engaging in a debate while presiding over the meeting, and Mr. Rodrigues turned around three inches from her face and stated "Sheryl, if you were a man, I dunno what I'd do to you right now". The applicant states that she felt threatened and subsequently filed a complaint with the police.

66During the summary hearing, when I asked the applicant to explain the connection between the alleged conduct and the ground of sex or association with other women, the applicant highlighted that "we were women in pink t-shirts" who were being ruled out of order and referenced the specific comments of "if you were a man" and "Toop and her troop" as evidence of the link between sex and the conduct in question. The applicant also submits that the treatment was directed at herself and "anyone who challenged" the leadership.

67Local 1974 and the related individuals submitted that the particulars reflect internal union debates and that the applicant has not pointed to any evidence linking the allegations with sex. The respondents disagree that there is a link between pink t-shirts and gender and highlight that the applicant's comments at the meeting on February 28, 2009 had nothing to do with sex/gender. By way of explanation for the conduct described, the local respondents submit that they were not targeting "women activists" but rather were insisting that all members attending meetings follow rules of order.

68Having reviewed the material submitted and the submissions made, I find there is no reasonable prospect that the applicant will be able to establish that the treatment in the various meetings was linked to her sex and/or association with persons identified by sex. In reaching this conclusion, I have relied on the facts alleged by the applicant which I assume to be true for the purposes of the summary hearing, and any facts which she agreed to during the course of the summary hearing, such as the applicant's clarification of the gender breakdown of the executive. In addition, I have been mindful of the context in which these meetings were occurring; namely, that the applicant was in conflict with the local leadership, challenging the leadership in the electoral process, and actively questioning the Local's operations and practices.

69I accept that based on the applicant's version of events, the applicant has described negative treatment being directed at her meetings. While it may be theoretically possible that gender is a factor in this treatment, that is not the test at the summary hearing. Rather, the question is whether there is a reasonable prospect of the applicant establishing this claim based on the evidence that the applicant has or that may be reasonably available to her. In my view this is where the applicant's claim comes up short.

70For example, the applicant points to her gender and the gender of others that she asserts she is associated with as evidence of the gender connection. However, I do not find that the fact the applicant was a woman and that she and a few other women were being treated in the manner alleged is sufficient to get over the summary hearing threshold in the absence of other evidence. I agree with the respondents that correlation (that she and a few other people were being treated adversely and they were all women) is not the same as establishing causation (i.e. a connection between what treatment they received and their gender). Notably, the applicant herself was not consistent in her view of the alleged treatment insofar as at one point in her oral submissions, the applicant explained that the behaviour was directed at "anyone" who challenged the status quo.

71Further, while the applicant initially alleged that the executive was male-dominated and that this established a link, the actual gender breakdown appears to be more evenly based, albeit the president and vice-president are male. While I acknowledge that women may discriminate against other women based on sex, in this case the applicant sought to rely on the composition of the executive to draw an inference of discrimination. Again, in the absence of other evidence, I do not find that there is a reasonable prospect of establishing such a claim.

72I also do not find that the reference to pink t-shirts being worn by the applicant and other women is indicative of a link. While I accept that wearing pink is commonly viewed as an anti-bullying message, I do not view the message as necessarily connected to bullying of women. In fact, in the applicant's own supporting materials, she refers to a CUPE news release that refers to the idea of wearing pink as taking a stand against bullying, the origins of which came from two Nova Scotia teenagers who wore pink in support of a classmate who had been bullied for wearing pink without there being any reference to sex or gender of the individuals involved.

73Further, to the extent that the applicant included information about the content of the meetings or issues underlying the alleged disagreements between her and the local respondents, the meetings did not appear to be about issues related to women as a defined group. Indeed, to the extent that the content is included in the materials, it would appear that the concern was about accountability and transparency in the Local, which I do not find is typically an issue exclusive to or even particularly related to women. For example, in an email to Ms. Thurston-Neeley reporting on the cause of the strain between herself and the Local, the applicant stated that while she used to "believe" it was motivated by ill will, hostility and revenge, she and others have now become convinced that it is systemic discrimination against a group of "women who challenge [Louis Rodrigues and Ken Bethune] on issues of accountability and transparency (or lack thereof)". This highlights the nature of the concerns being raised but also that the applicant's claim is based on her belief as opposed to evidence; a belief that was evolving over time.

74With respect to the specific comments relied on, I accept that if the applicant's allegations are made out, she was subjected to negative comments. The comments "Toop and her troop" and "let's hang her" are arguably negative. The remark about "if the applicant was a man", while suggesting differential treatment based on sex, appears to imply that if the applicant was not a woman she might be hit or subject to some more intense negative treatment than was the case. The obvious implication is that the individual speaking is either metaphorically or literally "pulling his punches", or treating the applicant less harshly because of her sex. Having considered all of the facts that the applicant provided about the meetings, including the general context as set out in her materials which clearly reflects she is challenging the executive, I do not find that the applicant would have a reasonable prospect of proving that she was being disadvantaged in these remarks because she was a woman. Taken literally, the first two comments are not connected to gender and the applicant has not satisfied me that she has a reasonable prospect to proving that they are because of the context and/or other evidence that she has or that could be reasonably available to her. While the third remark about if the applicant was a man would appear to engage sex, I do not view this single remark as being disadvantageous treatment because of sex because the inference is that it resulted in better treatment.

75For all of the above reasons, I find that there is no reasonable prospect of establishing that the behaviour at union meetings is discriminatory based on the applicant's sex and/or association with other persons identified by sex.

Voicemail message left by the respondent Rodrigues for Nutrition Services Employees

76The applicant alleges that a voicemail message left by Rodrigues to the predominantly female Nutrition Services workers is an example of "gender bias". On July 7, 2008, Mr. Rodrigues left a voice mail message advising of an important meeting, that jobs were at stake and that they would have to fight to generate attendance at a meeting and financial support for a political campaign for hospital reform. The applicant alleges this was "fear mongering".

77At the summary hearing, the applicant elaborated that this message was a "political ploy" as the respondent Rodrigues was trying to squeeze money out of the membership for a campaign.

78The local respondents state that jobs were being contracted out and that the union waged a fierce battle but that the positions were all eliminated. The applicant agreed during the summary hearing that she was not in a position to challenge these facts.

79I find there is no reasonable prospect that the applicant can establish that she was discriminated against by the voice mail message described. First, I have difficulty seeing how the applicant herself was disadvantaged or otherwise affected by this message, given that the applicant was not a nutrition services worker. In any event, the applicant has not provided any explanation as to how or why the message delivered was discriminatory based on sex/gender.

Choice of delegates to CUPE's First Annual Trades Conference

80I reach a similar conclusion about the applicant's allegation regarding the choice of delegates to the First Annual Trades Conference.

81The applicant characterizes this allegation as one of "gender bias" although it does not appear to have resulted in any specific disadvantage to the applicant.

82The applicant complained to the national representative, the respondent Williams, about the respondent Bethune extending an invitation to attend the trades conference to his predominantly male department, plant maintenance and engineering. According to the applicant, this excluded women members from having the same opportunity. While the issue appears to have been addressed – by the posting of a special meeting notice to elect a delegate from all trades designations – the applicant alleges that the notice given was inadequate as employees need to give the employer 14 days' notice for union leave. The applicant alleges that in the end there was no quorum at the meeting and Rodrigues and Bethune hand-picked a male employee from plant maintenance.

83The applicant alleges this is another example of gender bias and that this allegation is "contextual".

84The respondent disputes that this allegation makes out a prima facie case of discrimination against the applicant and in any event, submits that there were no women eligible to attend at the time (insofar as there were no women employed in any of the trades listed in the brochure advertising the conference).

85I find there is no reasonable prospect of the applicant establishing that she has been discriminated against in connection with the selection of a delegate for the trades conference. As the applicant herself acknowledges, she did not qualify and relies on the allegation for context only.

Applicant's attendance at CUPE's Women's Equality Conference

86The applicant alleges that the respondent Rodrigues "badgered" her at an Executive Board meeting on February 25, 2009, alleging that she unilaterally declared herself to be a delegate from Local 1974 when registering for this conference. The applicant alleges that this was incorrect and she had registered as a member and only attended as an observer. The applicant alleges that this is discrimination based on sex as it is a women's conference and the local executive was hostile to her and the Local wanted her silenced on everything and did not want her talking about anything at the Local.

87The respondents state that there had not been a request from the applicant to attend the conference and the applicant was criticized for having unilaterally designed herself as the Local's delegate.

88The applicant did not dispute that there had not been a request, but highlighted that the Local had not sent a delegate. In fact, in the Application, the applicant references raising the issue of the Local not sending a delegate at a meeting after the fact and describes the respondent Rodrigues as stating in part:

I don't think it was something our Local looked at. There's conventions for everything; there's Rainbow Committees, Aboriginal Committees; there's thousands of committees and it doesn't mean every Local wants to send somebody. When you look at these conferences you look at, is there an issue? Is there value to it? Me for one, I believe we don't elect people on the basis of male/female or percentage of the workers in the workplace

89The applicant states that she perceived Rodrigues' comments were indicative of "gender bias".

90I find that there is no reasonable prospect of the applicant establishing that she was discriminated against by the Local respondents' conduct in connection with the Women's Equality Conference. Even on the applicant's description, the dispute that arose stemmed from the respondents' view that the applicant registered as a delegate contrary to proper protocol. While the applicant disputes that she registered as a delegate, she does not dispute this was the concern raised by the Local. Further, while the applicant references some comments made by the respondent Rodrigues after the fact, I do not accept that the comments are indicative of gender bias, and in any event, do not appear to relate to any disadvantage experienced by the applicant.

Allegations stemming from Trespass Notice

91The applicant alleges that the issuance of a trespass notice to her and "two (2) other women activists" was discriminatory based on sex. The Notice dated March 10, 2009 informed the applicant that she was prohibited from entering the Local 1974 union hall and that in the event that she returned, the union may institute legal proceedings.

92The local respondents state that the Notice was issued because of the applicant's behaviour at membership meetings. In particular, the local respondents allege that the applicant attended every meeting and that she was loud and disruptive. The local respondents state that they were receiving complaints from other members and the applicant would not respond to direction from the chair or from the sergeant-at-arms. The local respondents state that anyone who misconducted themselves in a similar fashion would be treated in the same way.

93The applicant characterizes her conduct differently. She states that she and the other women attended union meetings and "refused to be bullied". She further states that she "wasn't loud and disruptive every time" she spoke. The applicant acknowledges there was an incident where she refused to leave, the police were called, and she was threatened with ejection.

94In the supporting documentation filed, the applicant includes her exchange of correspondence with the police. In her own characterization of the dispute, the applicant does not allege that she is being targeted because of sex, although she does pose the question of "what dire threat does a group of women activists pose to the male-dominated Local Executive". At the summary hearing, the applicant herself queried the connection to sex, stating that she questioned whether it falls within the Code although she concluded that it did because other women got the notice and she "cannot think of another ground".

95I find that there is no reasonable prospect of the applicant establishing that the trespass notice was issued to her because of her sex and/or association with other women. Apart from the applicant's sex (and that of the other two persons issued the notice), the applicant has not pointed to any specific evidence that she would call that would link the issuance of the notice to sex/gender.

The Defamation Action

96The applicant also alleges that the Local's initiation of a defamation action against her on March 26, 2009 is "linked to gender" as it was designed to have a chilling effect on her.

97The defamation action arises out of the distribution of a flyer in a public car park containing statements which were alleged to be defamatory against the individual respondents Rodrigues and Bethune and five other officers and trustees and members of the union (three of whom appear to be women).

98The background facts are set out in the subsequent decision of R. Smith J. in Rodrigues v. Toop, 2011 ONSC 794 at paras 9-11:

In March of 2008, Toop ran for a position on the executive of the Local. She was not elected. Following her defeat in the election, Ms. Toop and the other co-defendants who are no longer part of this action, actively questioned the executive's operations and practices and in particular, complained about the inadequacy of financial disclosure and the accounting provided by the executive members of the Local regarding the expenditure of its finances and the need for an external review thereof.

The issues raised by Toop concerning the inadequacy of the financial reporting of the executive of the Local was also the subject of the an [sic] application by Toop to the Ontario Labour Relations Board. Her application was commenced in February of 2009 under section 92 of the Labour Relations Act seeking an order that copies of audited financial statements be provided by the Local to its members. The application was made with respect to the inadequacy of the 2007 trustee's report which was appended to and attached to the subject flyer which is the subject of these proceedings. Toop's application to the Labour Board was dismissed on October 2, 2009.

Ms. Toop authored the flyer which contains the allegedly defamatory statements on February 16, 2009, approximately nine (9) months before her application to the Labour Board was dismissed. She used the CUPE logo and presented the information in the flyer in the form of an "info memo". In the flyer, Toop accused the executive members of hiding things "under the sheets and silencing activists"; she stated that the elections at the meetings were rigged and stacked; she stated that union activists, who were mainly women, were bullied, abused and discriminated against for asking questions and challenging the status quo; she stated that the Local was run by a closed secretive group that engaged in pork barrel politics; and she stated that the executive handpicked and paid members to attend union functions giving them $100 cash in an envelope when only $65 was allowed pursuant to the Local's by-laws.

99In a decision dated March 2, 2011, R. Smith J. found that there is no genuine issue requiring a trial (in part because the plaintiffs had not identified an individual who received a flyer who was not a member of the local) and that the distribution of the flyer was made on an occasion of qualified privilege (see Rodrigues v. Toop, 2011 ONSC 794 (Ontario Superior Court of Justice).

100At the summary hearing, the applicant alleged that this defamation action was a "backlash" for raising "women's equality issues", referencing the particulars in the Application without explaining what the specific particulars were and how they were connected to the initiation of the action.

101I find there is no reasonable prospect of the applicant establishing that the initiation of the defamation action was discriminatory based on sex or association with other persons identified by sex.

102There is an issue of whether or not the initiation of a defamation action can form the basis of an allegation of discrimination under the Code given the doctrine of absolute privilege. See for example, Ornelas v. Casamici Restaurant, 2010 HRTO 1078.

103However, even assuming without finding that the initiation of a defamation action can, I find that there is no reasonable prospect that the applicant can make out the allegation. Apart from the applicant's assertion of a connection, the applicant did not elaborate on what particulars were reflective of her raising equality issues or how there was any connection between such particulars and the initiation of the action.

104To the extent the Court summarized the background to the action and the content of the flyer, it appeared to stem from the applicant's complaints about the financial and electoral processes as opposed to the "women's equality issues" that the applicant now asserts. Further, there is nothing about the action itself which would suggest that it was targeting members based on their gender. While the action was brought against the applicant and two other women, I do not find this fact alone to be sufficient for getting over the summary hearing threshold, particularly when the plaintiffs included three women.

The Posting of the Notice Explaining Cancellation of Membership Meeting

105The applicant also alleges that the posting of a notice on April 1, 2009 explaining the cancellation of a general membership meeting on March 28, 2009 was designed to incite harassment against the applicant and another employee who is female. The notice was authored by the individual respondents Rodrigues and Bethune and three other members (two of whom are female and I presume also members of the executive).

106The notice replicates the text of an email sent to the applicant and the other employee. The notice explains that the meeting was cancelled because of their conduct in the meetings (for example speaking out of turn, raising of voice, using obscenities, insulting other members, refusing to sit down); the complaints from other members about their misconduct; and the police decision not to enforce the trespass notice.

107The applicant filed a complaint with Kingston General Hospital about the posting of the notice and while finding that the Hospital erred in posting it without more extensively reviewing its contents, it found no evidence that the posting was discriminatory based on the grounds of gender.

108The applicant alleges that the posting of such a notice was unprecedented, its content is inaccurate and when viewed with the other incidents reflects a pattern of conduct directed at herself and "sister members".

109I find that there is no reasonable prospect that the applicant can establish that she was discriminated against on the basis of sex and/or association by the posting of this notice. Even assuming that the notice falls within the scope of section 6 of the Code, the applicant has not pointed to any evidence she would have or that would be reasonably available to her that would establish a connection between this notice and her gender and/or association with persons identified by their gender. While I agree with the applicant that there was a series of actions directed at her and one or two other women (trespass notice, defamation action and this notice), I do not find that pointing only to the gender of the individuals involved is sufficient to show there is a reasonable prospect of proving discrimination. In the absence of any other evidence, the gender of those targeted or subjected to this alleged treatment is insufficient to get over the summary hearing threshold. Further, there is nothing about the content of the notice that appears to be related to gender nor has the applicant suggested there is.

Allegations against CUPE National and related Respondents relating to an Alleged Failure to Investigate

110The allegations made against the National respondents based on sex (and association with others identified by sex) and marital status stem from the complaints made by the applicant about her treatment by the Local Union respondents. The applicant's main contention is that CUPE and the related respondents ignored her complaints of alleged harassment and discrimination based on sex (and association) by the Local union respondents, which condoned the actions of the Local and caused the behaviour to escalate.

111Based on the material filed, it is apparent that while the applicant was raising concerns about the Local for some time, the applicant's characterization evolved. Throughout, the applicant raised concerns about the electoral, financial and administrative irregularities of the Local. Initially, there was no mention of a human rights connection to these concerns. However, as time progressed, the applicant began to assert that she was part of a group of "women activists" and that the Local was engaged in systemic discrimination against her and other activists.

112In the Application, the applicant relies on a number of supporting documents articulating her concerns which reflect this evolution of her complaints. In the Application, the applicant states that in the nine month period between July 2008 and April 2009, she sent numerous emails to the respondents Moist, Thurston-Neeley and Williams concerning what she believed to be systemic discrimination by CUPE and its Local 1974 against her and a group of women activists. For example:

• On July 4, 2008, the applicant alleged that the conduct of some members of the Local executive continues to be "motivated by ill will, personal hostility and revenge" for her challenge to the validity of the March 29, 2008 elections and that during the June 30th membership meeting, Rodrigues' conduct was "intimidating, hostile and bullying" and asked that CUPE follow up and advise on these matters and advise when the local would meet its obligations under the Constitution.
• On December 17, 2008, the applicant emailed Ms. Thurston-Neeley reporting on the dismissal of the trial charges she had brought against the Local and that she had been served with charges being brought against her. In commenting on the cause of this strain between her and the Local, the applicant stated that while she used to believe it was motivated by ill will, hostility and revenge, she and others have "become convinced by the heavy-handed behaviour of Louis Rodrigues and Ken Bethune it's systemic discrimination against a group of women who challenge them on issues of accountability and transparency (or lack thereof)". The applicant queried how long CUPE would turn a blind eye to this and asked that all books and records be open for inspection as per the Constitution.
• On January 14, 2009, the applicant emailed Ms. Thurston-Neeley and others seeking a response to the December 17, 2008 email, including a reply to "stopping the harassment by Rodrigues and Bethune";
• On January 21, 2009, the applicant emailed Mr. Moist and others confirming that there was no interest in engaging in a mediation with the Local (as had been offered in a telephone conversation on December 4th) and asking for an explanation as to why CUPE continues to allow the executive officers to flout the Constitution and their own by-laws and referencing the lack of response "while the bullying continues unabated".
• On February 3, 2009, the applicant was advised by Ms. Thurston-Neeley in an email that the concerns articulated on October 17, 2008 were being worked on with the assigned national representative and the Local Union and the applicant responded raising various concerns about the Local (chief steward not doing his job, no schedule of stewards committee meetings and executive board meetings) and commenting, among other things, that the "financial cover-up will not go unchallenged".
• In another email of the same date also addressed to Ms. Thurston-Neeley, and others, the applicant stated that "CUPE National President Paul Moist sits idly by while dues paying union activists (mainly women) in this Local are bullied, abused and discriminated against for challenging the status quo."
• In an email to a number of union officials including Sid Ryan, on March 15, 2009, the applicant identified herself as "part of a group of women activists in my Local who are being bullied, intimidated, harassed and discriminated against by our male-dominated Local Executive because we challenge them on issues of local administrative accountability." The applicant detailed the history of her concerns with the Local (for example, telling the President that his behaviour was offensive in a meeting, running for Trustee because proper reports had not been submitted to the National, the circulation of the petition about her asking that she be banned from membership meetings, the filing of charges she brought against the executive officers and those that were filed against her, raising questions about the Local's finances and the issuing of a threat of legal action under the Trespass to Property Act which she stated was for no reason other than to "silence opposition"). The applicant queried in the email: one might wonder "what dire threat a group of women activists pose to this predominantly male Local Executive" and answered that it was because they "questioned the books". The applicant ended the email by stating if there was "any advice or assistance you can send, please do."
• In an email to Paul Moist on March 17, 2009, the applicant complained about the trespass notice that she and others received, requesting that he intervene as national president to "prevent this disgraceful abuse of authority directed towards a group of women activists". On March 23, 2009, Mr. Moist responded, stating that the issues in dispute properly fall under the "purview of the local union" and that his office would not be inserting itself into the matter.
• In an email to Mr. Moist and others on April 21, 2009, the applicant reported on recent events at the Local, including the posting of the notice cancelling the membership meeting. The applicant stated that CUPE Local 1974 is trying to "strip women activists of our right to attend union meetings or function in any way in the Local" and that it "shameful" that a union that prides itself on its commitment to diversity, equality, transparency and democracy ignores the legitimate concerns of union members when asked to intervene in what is believed to be a lack of local administrative accountability.
• In a follow-up email on April 25, 2009, the applicant reported on the executive continuing to "dodge their responsibility to meet with the membership citing bogus security concerns" and suggested that their behaviour had a profound negative impact on "women union members". Among other things, the applicant also alleged that the "harassment, discrimination and reprisals" against her and other "women activists" in the local had been "condoned and compounded" by Mr. Moist and that he had "failed" to "censure Mr. Rodrigues and Mr. Bethune for their misconduct".

113Against this backdrop, the applicant alleges that CUPE and the related individuals had an obligation to investigate her complaints of discrimination and harassment and that based on the response or lack thereof, the applicant's rights have been breached under the Code by discriminating against her in respect of her union membership. In essence, the applicant submits that there is a free-standing duty on CUPE National to investigate the conduct of Local 1974. The applicant did not rely on any case law in support of this proposition.

114The respondents strenuously dispute that there is an obligation to investigate the allegations in these circumstances. The respondents submit that CUPE National and its locals are distinct legal bodies (noting that there are 2,403 such locals, many of which have thousands of members) and that the locals (including Local 1974) are the certified bargaining agents and own their bargaining rights. While CUPE National provides services to locals such as providing collective bargaining, labour arbitration and labour relations services, the locals have independent legal status. In the case of allegations of harassment and discrimination, the respondents submit that CUPE may become involved with a local only in two instances: if the applicant had filed charges against Local 1974 members, CUPE may become involved in setting up a trial procedure and/or providing an appeal body; and second, CUPE "might" have a legal obligation to deal with allegations if a local was placed under trusteeship as the local would no longer be autonomous and CUPE would have to step in to manage its affairs. The National respondents submit that neither of these circumstances applied in this case. In fact, the National respondents state that while the applicant filed charges against certain of the local respondents (the respondents Rodrigues and Bethune), those charges were not about allegations of discrimination contrary to the Code.

115The respondents submit that to the extent the National was involved, it was in an attempt to mediate the matters and that its work was necessarily halted when CUPE became a named respondent in a number of adversarial processes.

116The applicant replied to these submissions arguing that CUPE had waived this defence by its involvement. Further, in reply to the claim that CUPE and its Locals are distinct legal bodies, while not disputing the claim, the applicant submits that the collective agreement is between CUPE "and its Local 1974" and is signed by a CUPE National representative. The applicant submits that there is a particular legal relationship between CUPE and its locals through the Constitution and By-laws and a representative of CUPE attends local membership meetings to offer advice when issues arise.

117While I have carefully considered the applicant's submissions, I find that her claim against the national respondents should be dismissed as having no reasonable prospect of success.

118Most of the Tribunal's case law dealing with the duty to investigate has arisen in the area of employment. The Tribunal has found the Code to have been breached where respondent employers have failed to investigate or take action to address alleged discrimination or harassment in the workplace. Many of these decisions have applied the analysis in the Tribunal's decision in Laskowska v. Marineland of Canada Inc., 2005 HRTO 30. Accordingly, in order to understand the nature of this "duty" it is necessary to carefully consider the reasoning in that Decision.

119In Laskowska, the Tribunal referenced subsection 5(1) of the Code (and the right to be free from discrimination in employment) and noted that the Tribunal and the courts have included in that right such things as the right to a discrimination-free environment, or a non-poisoned workplace, even though it does not explicitly state that in the concisely worded general anti-discrimination provision of subsection 5(1). The Tribunal stated that from that general workplace anti-discrimination clause flows other obligations, such as the duty not to condone or further a discriminatory act that has already occurred (see Payne v. Otsuka Pharmaceutical Co. (No. 3) (2002), 2002 CanLII 46516 (ON HRT), 44 C.H.R.R. D/203, and the duty on an employer to investigate a complaint of discrimination.

120The rationale for this interpretation of the Code was stated as follows:

It would make the protection under subsection 5(1) to a discrimination-free work environment a hollow one if an employer could sit idly when a complaint of discrimination was made and not have to investigate it. If that were so, how could it determine if a discriminatory act occurred or a poisoned work environment existed? The duty to investigate is a "means" by which the employer ensures that it is achieving the Code-mandated "ends" of operating in a discrimination-free environment and providing its employees with a safe work environment.

121This duty to investigate has been applied in only a limited number of cases in other social areas. In Abdallah v. Thames Valley District School Board, 2008 HRTO 230, the Tribunal seems to have proceeded on the basis that the respondent in that case had a duty to investigate "with respect to services". However, the Tribunal's finding in that case was based on the respondent acknowledging that it had a duty to investigate. In Persuad v. Toronto Civic Employees' Union Local 416, 2012 HRTO 190, the Tribunal considered allegations that a union had failed to investigate a complaint of discrimination but prefaced its consideration by assuming, but not making an express finding, that there was such a duty. In the result, there has not been the same detailed analysis with respect to whether and how the duty to investigate arises in other areas as in the social area of employment.

122What is clear from its origin in the employment area is that the duty to investigate is not a free-standing obligation under the Code. Rather, it is the means by which an employer ensures that it is complying with its obligation to provide a discrimination-free work environment under s. 5(1) of the Code

123As a corollary of that, when the Tribunal finds that a respondent breached the Code by failing to investigate, it is really finding that by failing to investigate, the respondent has failed in its obligation to provide a discrimination-free workplace (or by extension, perhaps, a discrimination-free service experience).

124Looking at the origin of the "duty to investigate" in Laskowska highlights the problem with the applicant's claim against the national union (and related respondents) in this case.

125In keeping with the analysis in Laskowska, if CUPE National could be said to have a duty to investigate under the Code (and I am not saying that it does), it would have to flow from a corresponding Code obligation to provide the applicant with a discrimination-free experience of membership in a union. In other words, assuming without finding that there is a "duty to investigate" with respect to membership in a trade union, that duty would have to arise as the "means" by which CUPE National must fulfill an obligation under s.6 of the Code not to discriminate against the applicant in respect of its membership.

126This analysis does not accord with the nature of the applicant's membership. The applicant agreed during the summary hearing that she is a member of Local 1974 as reflected on her membership card. Further, the applicant's allegations are not that CUPE National failed to investigate allegations of discrimination that she made against the National. Rather, the applicant alleges CUPE National breached its "duty to investigate" by not investigating discriminatory membership which the applicant was allegedly experiencing with another entity, Local 1974.

127There is certainly a relationship between the Local 1974 and CUPE National. As outlined by the parties, national staff assist Locals in providing collective bargaining (and it appears sign collective agreements), may assist with labour arbitration and provide labour relations services. Further, CUPE National may be involved in setting up trial processes and in some circumstances, may place a Local into trusteeship where in essence, CUPE National steps into the shoes of the local to administer the local. However, the mere existence of a relationship is not sufficient to find that CUPE National – as a separately named entity, which it is in these proceedings – discriminated against the applicant with respect to membership in a trade union that she has with Local 1974. In essence, that is what the Tribunal would be finding if it were to accept the applicant's submission that the national union had breached the Code by "failing to investigate" the applicant's allegations.

128I note that the fact that CUPE National and Local 1974 are separate entities was accepted by the OLRB in Toop v. Canadian Union of Public Employees and CUPE Local 1974. This case involved a duty of fair representation ("DFR") application brought by the applicant against Local 1974 and CUPE National. At the OLRB, CUPE National argued that it was not the bargaining agent to which the applicant belonged and that therefore the Board was without jurisdiction to determine if it breached section 74 (which requires that a trade union, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit). The Board ruled orally that CUPE's position was correct and the case proceeded to deal with the sole question of whether or not Local 1974 had breached section 74.

129In sum, the applicant is not alleging that the alleged failure to investigate resulted in her experiencing discrimination by the national union. Accordingly, there is no basis upon which the Tribunal might conclude that the alleged failure to investigate constituted a breach of the applicant's rights under the Code by CUPE and the related respondents.

130In reaching this conclusion, I have considered the applicant's argument that the National respondents waived their right to raise the defence that there is no obligation to investigate since the national representatives were engaged with her with respect to her complaints and did not inform her of their position until this proceeding. However, this argument has no merit. Whatever arguments the National may or may not have raised cannot alter their legal obligations to the applicant under the Code. Moreover, the issue for me at this point is not whether the respondents could provide a defence to the applicant's allegations, but whether the applicant has a reasonable prospect of proving that the National respondents discriminated against her in the first place by failing to investigate alleged discrimination by another legal entity, Local 1974, under the Code. For reasons set out above, I find that the applicant has no reasonable prospect on this aspect of her Application.

Should the Application be dismissed under Section 45.1 and/or as an Abuse of Process?

131I now turn to the issue of whether or not the Application that remains (i.e. the marital status allegations) should be dismissed on the basis of s. 45.1 and/or abuse of process. As outlined above, these allegations arise from the Local's alleged treatment of the applicant in issuing campaign literature, the circulation of a petition and in not inviting the applicant to executive board meetings.

132The parties addressed s. 45.1 and abuse of process in only a summary way in their submissions and at the hearing undoubtedly because of the breadth of the allegations and the number of issues to address. Moreover, their submissions were directed at the entirety of the Application and thus were not specific to the allegations that remain.

133The local respondents submitted that the Application should be dismissed on the basis of s. 45.1 and/or as an abuse of process. The local respondents argued that the issues being complained about were raised by the applicant in various other fora. The local respondents made particular reference to the proceedings at the OLRB, including specific reference to the application filed under s. 87(2) of the Labour Relations Act where the applicant made allegations about many of the same factual issues set out in the Application (including the applicant's alleged treatment in connection with the women's conference, the issuance of the trespass notice, the issuance of the notice cancelling the membership meeting and the initiation of the defamation action); and the duty of fair representation applications alleging a failure to represent the applicant in connection with her various grievances.

134The local respondents acknowledged that the applicant was not litigating the same issues in these fora but submitted that she was litigating the same events and to now permit her to litigate for a different form of relief would be an abuse of process.

135The applicant disputed that section 45.1 or abuse of process has application in these circumstances. The applicant submitted that the legal issues were different in each proceeding and that the OLRB proceedings did not address the human rights allegations.

136Neither party made any submissions regarding issue estoppel nor do I find it necessary to address it at this stage.

137Based on the material submitted and the submissions made, I do not find that it would be appropriate to dismiss the remaining allegations on the basis of either s. 45.1 and/or abuse of process.

138Section 45.1 permits the Tribunal to dismiss an application where another proceeding has appropriately dealt with the substance of the Application.

139In a similar vein, the doctrine of abuse of process has been used to dismiss an application where the allegations have been heard and determined elsewhere. As the respondents submit this has been applied where the events have been litigated albeit the legal issues may have been different.

140There is no question that the applicant and respondents have been engaged in multiple proceedings at the OLRB. Further, in broad terms, the various proceedings have pertained to various complaints made by the applicant about her treatment by the local respondents (or at least the Local 1974). However, based on the material submitted, it does not appear that either the events and/or the allegations of marital status discrimination have been previously raised and/or determined in any other proceeding.

141In this respect, I note that the respondents emphasized that the applicant had filed an application under s. 96 of the LRA alleging a violation of s. 87(2) of the LRA which they submit duplicated the allegations in the Application. This is accurate for the factual events underlying some of the applicant's discrimination allegations based on sex. However, there is no reference to either the events underlying the marital status claim or the claim itself.

142Similarly, I do not find that any of the other applications at the OLRB that have been referenced appear to have addressed the same or similar issues to the applicant's allegations based on marital status.

143Thus, in the circumstances, I do not find it appropriate to dismiss the Application on the basis of s. 45.1 and/or on basis that it would be an abuse of process to permit the allegations that remain in the Application to proceed.

Next Steps

144The applicant's allegations against the local respondents based on marital status will continue. The Local respondents are directed to provide a Response within 35 days of the date of this Interim Decision. The respondents should indicate in their Response form if they are agreeable to mediation and if they are the applicant will be contacted regarding her interest in mediation. Absent agreement, the Registrar will schedule a one-day hearing.

Summary of Orders

145The Tribunal directs:

• The Application is dismissed against CUPE, CUPE Ontario, Paul Moist, Nancy Rosenberg, Barbara Williams, Patrick (Sid) Ryan, Candace Rennick and Linda Thurston-Neeley;
• The allegations against the respondents CUPE Local 1974, Louis Rodrigues, Ken Bethune and Mitchell Vivian in the Application based on sex, association with persons identified by sex and disability are dismissed;
• The allegations based on marital status will continue against the local respondents CUPE Local 1974, Louis Rodrigues, Ken Bethune and Mitchell Vivian; and
• The Local respondents shall file a response within 35 days of the date of this Interim Decision responding to the allegations based on marital status;

146I am not seized.