HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Franca Piluso
Applicant
-and-
Community Living St. Catharines, Organizational Solutions, Catherine Humphrey and Canadian Union of Public Employees, Local 2276
Respondents
Interim decisION
Adjudicator: David Muir
Indexed as: Piluso v. Community Living St. Catharines
1In a Case Assessment Direction (“CAD”) issued on June 25, 2014, the Tribunal directed, on its own initiative, that a summary hearing be held to determine whether this Application should be dismissed as against the Canadian Union of Public Employees, Local 2276 (“CUPE”) in whole or in part, on the basis that there is no reasonable prospect that it will succeed. In a subsequent CAD issued on November 13, 2014, I directed that the parties also address a potential issue of delay in respect of some of the allegations of the applicant. I also directed the applicant to provide a statement of the alleged actions of the respondent CUPE, which the applicant believes were discriminatory.
2A summary hearing was held on November 27, 2014 by telephone conference call. All parties participated.
3On or about September 19, 2014 the applicant filed a Request for Order During Proceeding seeking an Order amending the application (“Request”). CUPE responded to the Request taking no particular issue with the requested amendments, but arguing that the issues raised by the Tribunal in its CAD above remain unchanged as related to CUPE.
4The amendment of the Application is largely confined to the narrative in response to Question 8 of the Form 1. The amendments are also largely in response to the CAD directing this summary hearing, and were an attempt to flesh out and elaborate on the applicant’s allegations as against CUPE. The narrative also includes a great deal of what is more properly argument. In any case, as I indicated at the hearing, the Tribunal has not yet accepted the amended Application, however for purposes of the summary hearing the Tribunal was prepared to deal with the issues on the basis of the amended narrative of the Application.
5In her Application the applicant alleges generally that she experienced discrimination and harassment in employment because of disability, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant is an employee of the respondent Community Living St. Catharines. She is represented in her employment relations with her employer by the respondent CUPE. The applicant has been on a medical leave since late February 2012.
6For the reasons that follow the Application as against the respondent CUPE is dismissed because it has no reasonable prospect of success.
7It is important to note that the applicant argues that CUPE discriminated against her in employment, not vocational associations. Although it is clear that the scope of social area of employment is broad enough to include the actions of a trade union in a unionized employment environment, a trade union’s duties and obligations under the Code as a vocational association are not the same as those they have in representing individuals in their employment. More importantly for purposes of this case, the duties and obligations of a trade union under the Code are not the same or co-extensive with the obligations of an employer. Many of the applicant’s allegations against CUPE assume that CUPE had essentially the same obligations as the employer, and appear to assume that a trade union has the ability and a corresponding duty to provide disability-required accommodations in the workplace to the point of undue hardship. In my view, it is trite to note that a union does not control the workplace and has no power to provide accommodations in the workplace.
8In my view, the law on this question is correctly set out in Gungor v. Canadian Auto Workers Local 88, 2011 HRTO 1760 (“Gungor”) at paras. 29-31and paras. 35-37:
The leading case regarding a union’s obligations and potential liability with respect to employment pursuant to the duty to accommodate under the Code is the Supreme Court of Canada’s decision in Renaud. It is important to note that in Renaud, the Court imposed liability on the union in relation to the provision in British Columbia’s human rights legislation dealing with discrimination “with respect to employment”, and expressly held that a separate provision in that legislation dealing with discrimination against a member of the union had no application to the circumstances of that case (see para. 50).
In the Renaud decision, the Court held that a union which causes or contributes to a discriminatory effect on an employee because of a ground protected under human rights legislation incurs liability “with respect to employment” (see para. 32). However, the Court states that the union’s obligations with respect to employment arising out of duty to accommodate only arise if the union is a party to discrimination and that the union may become a party in two ways (see para. 35 – emphasis added).
The first way that a union may become a party to discrimination is “by participating in the formulation of the work rule that has the discriminatory effect on the complainant” (see para. 36). An example of this was stated by the Court to be where the discriminatory rule is a provision in the collective agreement. In my view, one of the cases cited by the applicant before me, namely United Food and Commercial Workers, Local 401 v. Alberta Human Rights and Citizenship Commission, (2003) 21 Alta.L.R. (4th) 261 (C.A.), 2003 ABCA 246, is an example of how a union can be held liable under this first branch of the Renaud decision. In the UFCW case, the union and the employer had re-opened the collective agreement to negotiate an employee buyout program to lower the employer’s labour costs. There was a restriction in the agreement that employees eligible for the buyout must have worked for the employer within the previous 52 weeks. This was found to be discriminatory in relation to a group of employees who were excluded because they had been unable to work during this period for disability-related reasons. The union was held jointly liable with the employer because it had participated in the negotiation of the discriminatory provision and because it failed to take sufficient steps to ameliorate the discriminatory effects of this provision on the disabled employees.
The second way that the Supreme Court held in Renaud that a union may be liable with respect to employment for a failure to accommodate is stated to occur “if the union impedes the reasonable efforts of an employer to accommodate” (see para. 37). In such a situation, the Court states that it will be known that some condition of employment is operating in a discriminatory manner and the employer is seeking to remove or ameliorate the discriminatory effect. The Court held that a union becomes a party to the discrimination “if reasonable accommodation is only possible with the union’s cooperation and the union blocks the employer’s efforts to remove or ameliorate the discriminatory effect” (see para. 37).
While the Court does say that a union “incurs a duty not to contribute to the continuation of discrimination” and “cannot behave as if it were a bystander asserting that the employer’s plight is strictly a matter for the employer to solve”, these general statements are qualified by the introductory phrase “in these circumstances”, which refers to a situation where the employer is trying to remove or ameliorate a discriminatory employment condition and requires the union’s cooperation but the union impedes or blocks these efforts (see para. 37). In my view, this is made abundantly clear by the Court when it states that “the union’s duty arises only when its involvement is required to make accommodation possible and no other reasonable alternative resolution of the matter has been found or could reasonably have been found” (see para. 40).
Further, while the Court also states that a union “shares the obligation to take reasonable steps to remove or alleviate the source of the discriminatory effect”, a union only does so when “it is a co-discriminator with the employer” (see para. 39), which requires that the union be found to have been a potential co-discriminator on one of the two bases described in the Renaud decision.
9The applicant makes a great number of allegations against CUPE, however at the heart of the case is the allegation that CUPE failed to provide appropriate accommodations to the applicant subsequent to a workplace accident in August 2011. The applicant also alleges that the union’s failure to investigate the workplace injury was discriminatory.
10With respect to the general allegation that CUPE failed in its duty to accommodate the applicant in respect of her employment, I agree with CUPE that it has no such duty. The applicant pointed to a number of documents, including the constitution of CUPE and various publications it provides to members which set out the rights and obligations of the parties in ensuring safe and discrimination-free work places. These documents are statements of principle which may or may not be entirely honoured in practice, the applicant would say that they are not and she may be right. However these statements of what should happen in the workplace do not change the law with respect to the extent of a trade union’s obligations under the Code in relation to the accommodation in the workplace of persons with disabilities.
11The applicant requested that I consider Ontario Human Rights Commission (“OHRC”) policy on the duty to accommodate in the workplace, the language of which might be understood to support some of the applicant’s contentions of a kind of co-equal responsibility of both the trade union and employer in the accommodation process. In my view, the language of the OHRC is somewhat misleading to the extent that it implies a co-equal relationship between trade unions and employers. It is a fundamental fact of our labour and employment law that the employer controls the workplace and determines the manner in which the work is done, by whom it will be done, and where and when it will be done, subject only to any legal limits and contractual obligations including, of course, the language of a collective agreement.
12I also observe that the OHRC policy is mindful of the law as set out in the decision of the Supreme Court of Canada in Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 (“Renaud”) cited in Gungor, above. Therefore, when the OHRC policy uses language like joint responsibility, partnership and cooperation, it must be read in light of the law as it is today. So, for example, a trade union has a responsibility to not participate in the establishment of discriminatory work rules and must not stand in the way of an accommodation proposal advanced by the employer unless to do so would constitute undue hardship for the trade union and/or other members of the bargaining unit.
13There is no evidence that CUPE has either promoted or created a discriminatory work rule or advanced or agreed to a discriminatory provision of the collective agreement. Similarly, there is no evidence to which the applicant can point which would tend to support the contention that CUPE stood in the way of an accommodation plan which the employer was proposing.
14The allegations of the applicant, as they relate to the applicant’s to date unsuccessful attempts to return to work, are essentially that CUPE did not act or did not adequately advocate for the applicant. As stated in Gungor above and more particularly Traversy v. Mississauga Professional Firefighters’ Association, 2009 HRTO 996, and many other cases, the mere failure to act, on its own, does not constitute discriminatory treatment under the Code. There must be evidence to which the applicant can point that would tend to establish that the applicant was treated differently by the trade union in respect of her employment because she was a person with a disability. There is at the end of the day no such evidence available to the applicant in this case.
15In this regard CUPE relies on the principles outlined in Renaud, above and which are canvassed in a number of Tribunal decisions in particular Gungor and Traversy, above.
16The applicant makes a number of other allegations which generally can be characterized as a failure on CUPE’s part to communicate with the applicant and/or provide information to the applicant from the time she left the workplace in February 2012 until her representative contacted CUPE in September 2013. The applicant alleges that these alleged failures are discrimination in respect of her employment. The particulars of this general allegation include an alleged failure to provide her with updated collective agreements after she left the workplace. She also complains that no one from CUPE contacted her to enquire after her. She also alleges that other information, which may have been provided to other members of the bargaining unit, was not provided to her because she was absent from the workplace because of a disability.
17The applicant relied upon a provision of the collective agreement (article 25.01(a)) which provided that the employer would “supply and make available to the union a bulletin board for the posting of seniority lists and certain union notices…” in the workplace. The applicant alleges that because she was not in the workplace after February 2012, she accordingly did not have access to the information which may have been posted on this bulletin board from time to time. The applicant argued that CUPE had an obligation to ensure that whatever it posted on that bulletin board should also have been delivered to the applicant and their failure to do so was discrimination in employment on the basis of disability. When asked by me whether the applicant had ever asked to be provided with information that may have been posted on the bulletin board, the applicant indicated that she had not but also argued that she was emotionally unable to do so. When asked by me whether or not the applicant had any evidence that anything had actually been posted on this bulletin board after the applicant left the workplace the applicant indicated that she did not but assumed that the provision of the collective agreement had been complied with and accordingly things would have been posted there.
18Leaving aside the problem that I have no evidence that anything was ever posted on this bulletin board, I will assume for purposes of this decision that the bulletin board was used to post seniority lists if nothing else. However, there remain a number of difficulties with the applicant’s position on this point not least of which is the problem that there is no evidence that the applicant experienced any adverse consequence of this alleged failure. This goes to the somewhat hypothetical nature of this general allegation. There is no evidence that the applicant wanted any of the information that may or may not have been forthcoming, and as indicated never asked to be provided with copies of anything that had been placed on the bulletin board. The applicant’s claim in this regard amounts to an assertion that there is free standing right to be provided with accommodation in this respect whether or not the accommodation is ever requested or even desired. To my mind, it may have been different if the applicant had asked to be provided with a copy of anything that went up on that bulletin board and was refused. In those circumstances, to the extent that the provision of information is a service that CUPE is required to provide in respect of its duties in relation to the applicant’s employment, there may have been an obligation to provide an alternate means of accessing the information.
19On this and other points the applicant argued that because she was away from the workplace she was disadvantaged in accessing union services and that this was discriminatory. The difficulty is, as indicated above, that except for issues like her representative’s request for the new collective agreement, there is no evidence that the applicant had any need for services from the union, or requested them and was rebuffed and/or CUPE refused to provide them in an alternative way.
20The applicant also alleges that the union failed to provide her with a copy of the amended collective agreement in a timely manner when requested to do so. The applicant was provided with a copy of the collective agreement although there was some confusion about when a new collective agreement was achieved and some delay in the applicant being provided with the new/revised collective agreement. Despite the difficulties and delays in the applicant being provided with what she was seeking, there is no evidence either that the applicant was treated any differently than anyone else in this respect, and no evidence that her disability was a factor in the problems she had in this regard.
21On this point CUPE argued that these and other issues to be canvassed below all involved requests and interactions between the applicant’s representative, her daughter, and CUPE. CUPE asserts that it has never been provided with an authorization from the applicant. CUPE argues that many of the issues relied on by the applicant are in reality claims advanced by the applicant’s daughter who is not a party to the Application. In this regard, the applicant’s representative has asserted that she has been given “power of attorney” but when asked to clarify the nature of the grant has failed to do so.
22The applicant also alleges that the union violated the grievance procedure outlined in the collective agreement and this is evidence of discrimination. The applicant made a number of submissions with respect to the applicant not being in attendance at various stages of the grievance procedure. These allegations flow from the applicant’s understanding that if she has a complaint about something and brings it to the attention of the union the grievance procedure is automatically invoked. This is not how the grievance procedure under this collective (and most collective agreements) operates and there is no basis to the applicant’s apparent belief that the grievance procedure under the collective agreement was triggered by her complaints to CUPE. It was not in fact triggered and accordingly the grievance procedure could not have been violated in this case because there were no grievances in relation to the applicant filed by the union.
23A good number of the applicant’s concerns flow from correspondence she received from her employer that her employment had been terminated. The applicant only became aware to this when her daughter was visiting her and enquired of some correspondence from her employer which appeared to indicate that the applicant’s employment was ended. The applicant’s representative made inquiries of CUPE which in turn made enquiries of the employer and clarified that whatever the correspondence appeared to indicate, the applicant’s employment was not terminated. CUPE was satisfied with that response from the applicant’s employer. The applicant’s representative was not and continued to demand an explanation and later requested that CUPE file a termination grievance. In the end, CUPE indicated that in its view there had been no violation of the collective agreement, accepting the employer’s assertion that in its view the applicant was still an employee. CUPE declined to debate the issue further with the applicant’s representative.
24There is nothing discriminatory in the form or content of CUPE’s response to this issue. The applicant’s representative might have cause to be concerned with what, in fairness, would reasonably have been seen to be indications that the employer had terminated the applicant’s employment. CUPE did, however, make inquiries and received assurances that the applicant remained an employee, despite what may have been implied in the letter from the employer to the applicant. Similar assurances were also received by the applicant directly from the employer.
25It is not clear what more CUPE could or should have done in the circumstances, and there is no indication at all that the applicant was treated any differently in this respect than any other employee would have been.
26Similar allegations are made with respect to another request that CUPE file a grievance in January 2014. The applicant’s representative sent a letter to CUPE on January 20, 2014, requesting that grievances be filed with respect to issues going back several years. The applicant’s representative takes issue with CUPE responding to her letter by an email. In the email sent to the applicant’s representative on January 27, 2014, CUPE indicates that it requires clarification of the issues raised by the applicant’s representative. CUPE requested a face-to-face meeting with the applicant to discuss the issues in order to clarify what was being sought by the applicant and/or her representative. This suggestion of a face-to-face meeting was renewed on February 6, 2014. In a response dated February 19, 2014, the applicant’s representative took issue with the email response to her letter of January 20, 2014 and told CUPE that it had enough information to proceed and demanded a written response. CUPE did not provide a written response and the discussion ended. The applicant’s representative decided, but did not tell CUPE, that she would give CUPE ten days to respond appropriately to her demand letter and if it did not do so, this Application would be filed.
27There is no indication or evidence in this interaction that the applicant was treated any differently because she was a person with a disability. Similarly, whatever reasons the applicant’s representative had for insisting on communication by letter and deferring a face-to-face meeting, there is no indication that this was required to accommodate a disability and absolutely no evidence that CUPE would have known that this was the issue. Indeed based on the correspondence, CUPE would have reasonably concluded that these requests were motivated by the applicant’s representative’s approach to these issues and her busy work life.
28The applicant’s representative also alleges that some of her communications in relation to these latter discussions about the filing of two grievances were never responded to. So, for example, the applicant’s representative alleges that she asked whether CUPE had an internal legal department and if it did, to provide her with contact information. This communication was never responded to. Having reviewed these allegations I am not satisfied that they can, singly or considered together as part of an alleged pattern, be seen as tending to support an inference that the applicant was being treated differently because she was a person with a disability at the time. It is clear that communication between the applicant’s representative and CUPE became less productive over time, but the mere failure to respond to a small number of emails requesting information, some of which the applicant may even have been reasonably entitled to, does not amount to discrimination in employment by CUPE.
29The applicant alleges that CUPE failed to investigate the workplace accident in August 2011. CUPE argued, and I agree, that CUPE has no power or obligation to investigate workplace accidents despite what some of its internal documents may say. Similar to the discussion above with respect to the alleged failure to provide the applicant with appropriate accommodations, a trade union’s authority and responsibility in the workplace is not co-extensive with that of the employer.
30The applicant also alleges that several provisions of the collective agreement are discriminatory. CUPE argued and I agree that they are not on their face. However it is conceivable that the application of some of them might have discriminatory impacts in some circumstances, but that concern is entirely hypothetical as there is no evidence that any of the impugned provisions had any adverse, or any impact at all, on the applicant.
31The applicant argues that the fact that the collective agreement makes no explicit reference to disability and consequently several provisions of the collective agreement where the inclusion of disability might be appropriate, are discriminatory. The applicant makes the general argument that because disability is not explicitly referenced or prohibited by the collective agreement the collective agreement excludes an individual on disability leave from its protections and benefits. This and the other claims made by the applicant are entirely hypothetical because there is no indication that the lack of an explicit reference to disability had any impact on the applicant. I would also observe, as was argued by CUPE, that the fact that the collective agreement does not contain explicit reference to disability is irrelevant because the agreement also makes clear that nothing in it can be in violation of the Code. Moreover, it is well settled that the parties cannot contract out of the Code even if they sought to do so.
32The applicant also cites several sections of the collective agreement which provide orientation for new employees. The applicant argues that these are discriminatory because they exclude inactive employees such as the applicant who is currently on a medical leave. These submissions are difficult to understand because the applicant is not a new employee and there is no evidence that she sought the benefit of any of these provisions and was denied such service.
33Similarly the applicant argues that a number of other provisions of the collective agreement which appear to assume that an employee is in the workplace are discriminatory because they fail to account for employees on disability leaves. So for example the applicant argues that article 7.05 which contemplates that the first step in any grievance process is a discussion with “their supervisor in the presence of their steward”. Similarly the applicant alleges that article 7.01(a) which provides that “a steward shall assist any employee … in preparing his/her grievance..” is discriminatory because an employee on disability leave is not in the workplace and cannot have access to a steward. These claims are entirely hypothetical as there is no evidence that a literal application of the words of these provisions was ever contemplated or that the applicant suffered any adverse impact as a consequence of the existence of these provisions. It may be that in another case an employee might be disadvantaged by a literal application of some of these provisions but that is not what happened in this case.
34In my view, having reviewed all of the applicant’s allegations and her extensive argument embedded in her narrative of allegations, I am satisfied that in respect of the allegations set out above, considered alone or taken together, do not provide any basis for concluding that the applicant experienced discrimination in employment because of her disability by the actions or inactions of CUPE. Accordingly, for all of these reasons I find that these aspects of the Application must be dismissed as having no reasonable prospect of success.
35The applicant also alleges that a union official made comments in a return to work meeting in February 2012 which she perceived as discriminatory. The respondent CUPE denies the version of the conversation it acknowledges took place between the applicant and the union official. The applicant alleges that the CUPE official purported to compare her injuries to the applicant’s and that she did not let her pain interfere with her work because she was loyal to the employer. Assuming that these comments were made in the way the applicant alleges, I find that they might have been perceived as insensitive by the applicant but on their own are not discriminatory as claimed by the applicant.
36For all of these reasons the Application as against CUPE must be dismissed because in my view there is no reasonable prospect that this Application can succeed as against CUPE.
37Having determined the issues on this basis there is no need to consider the potential delay issues that arose with respect to a number of the applicant’s allegations.
Other Matters
38Subsequent to the summary hearing on December 2, 2014, the applicant filed a Request for Order During Proceeding (“Production Request”) seeking the production of documents from CUPE. The applicant argues that in order to respond to the CAD establishing the summary hearing and to the no reasonable prospect of success issue, she requires the production of documents which CUPE may possess. CUPE opposes the Production Request.
39The applicant argues that the evidence of discrimination is often times uniquely in the possession of the respondent and that she should have an opportunity to access all of the respondent’s documents in order to make that enquiry and determine whether there is any evidence to support her claims of discrimination as against CUPE.
40The Production Request is denied. To begin with, the Production Request is untimely. The summary hearing was scheduled several months ago and any request for documents should have been made prior to the hearing. Although the Tribunal does not normally grant such requests prior to a summary hearing, it will almost never consider them after it has concluded. The Tribunal is sensitive to the fact that evidence of discrimination is often largely in the possession of a respondent. However, the fact that this is often the case does not require that the Tribunal authorize a search of respondent’s documents in every case because something might be revealed as a result. There must be reason to believe that such documentation exists. As indicated above, the applicant’s theory of this case as against CUPE assumes an active role in the workplace for CUPE that few if any trade unions actually possess. Reduced to its essence the applicant’s claims are that CUPE did little or nothing to assist her, and most of the alleged failures relate to issues over which CUPE does not have control. This is not a case where the respondent had the authority to make a decision and did so in a way that raises significant questions about why the decision was made. There is, in the end, no basis to the applicant’s claims of discrimination in employment by CUPE, and in my view there is therefore no reasonable basis to conclude that there are any materials in the possession of CUPE that would cast any further light on the issue of its liability. For these reasons the Production Request is denied.
Amendment Request
41Largely in response to the CAD establishing the summary hearing, the applicant filed a Request to amend her Application through which she seeks the addition of further particulars of her allegations. The result is a very lengthy document including many repetitions and extensive editorial comment and argument, which is not appropriate in the narrative of the who, what, when and where of an Application.
42The respondents Community Living St. Catharines, Organizational Solutions and Catherine Humphrey (the “Community Living respondents”) did not object to the Request as such but argued that the amendments to the narrative of the Application may result in the complicating of what they argue is a fairly straightforward dispute about the extent to which the respondents appropriately accommodated the applicant in the workplace.
43No Reponses have been filed in this case although the Application was filed on March 3, 2014. Much of the delay can be attributed to the applicant’s approach which has been, as suggested by the Community Living respondents, to complicate the issues by filing voluminous pleadings replete with editorial comment and argument. However, the content of a Response is not entirely determined by the narrative of an Application and accordingly, I see no reason why the respondents are unable to respond to the Application as amended and accordingly, subject to further directions with respect to the contents of the Application, the Request to amend is granted.
44The Community Living respondents will deliver and file their Response to the Application, as amended, within 35 days of the date of this Direction.
45I am not seized.
Dated at Toronto, this 18^th^ day of December, 2014.
“Signed by”
David Muir
Vice-chair