Smith v. Canpar Ltd., 2014 HRTO 1844

Human Rights Tribunal of Ontario

B E T W E E N:

Carlton Smith Applicant

-and-

Canpar Ltd. and United Steelworkers District 6 Respondents

INTERIM DECISION

Adjudicator: Naomi Overend Date: December 31, 2014 Citation: 2014 HRTO 1844 Indexed as: Smith v. Canpar Ltd.

1This Application alleges discrimination with respect to employment because of disability, race, colour and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application names both the applicant’s employer and his union, the United Steelworkers District 6 (the “union”) as respondents.

2In the narrative of the Application, the applicant alleges that he was subject to unfair work assignments, given inadequate training, unfairly criticized and slapped, and subject to a racially-charged remark by a co-worker, which was reported to management but not addressed. He further alleges that after suffering a heart attack, he was not given light duties, but instead forced to work a demanding physical job. His employment was ultimately terminated.

3The narrative primarily focusses on the employer’s actions. The only allegation about his union is with respect to the criticism and slap, an incident which the applicant recalls happening in 2011. He alleges that the incident was reported to the union rep, but that no follow-up occurred.

4On October 24, 2014, the Tribunal sent a Notice of Intent to Dismiss Against Certain Respondents (NOID) on the basis that the allegations against the union in the Application appeared to be outside the Tribunal’s jurisdiction (power to decide) on the following basis:

a review of the Application and the narrative setting out the incidents of alleged discrimination fails to identify any specific acts of discrimination within the meaning of the Code allegedly committed by this organization.

5The applicant was directed to file written submissions in response to the NOID by November 23, 2014. He has not filed any submissions to date and the time for so-doing has now passed.

6Prior to the Tribunal sending the NOID, the applicant was asked about a grievance by the union and, in response, he sent a letter from the Staff Representative declining to pursue the grievance of the termination of his employment. In that letter, the union notes its opinion that the grievance was unlikely to be successful. The applicant does not allege that this decision was discriminatory, nor, on the face of the letter, is there any suggestion that the decision was taken for discriminatory reasons.

7There is a lengthy line of decisions from the Tribunal that a union’s failure to act on allegations of discriminatory conduct is not, in and of itself, an act of discrimination:

The applicant has not adduced any facts in support of his Application against the Union other than the fact that the Union did not act on the human rights issues.

The failure to represent an employee on a human rights claim is not, in and of itself, a breach of the Code, nor does it automatically make the Union a party to the alleged discrimination by the Employer. To found a claim against the Union, the applicant must provide a factual basis that could give rise to a finding that it discriminated against him. For example, the applicant could allege that the Union interfered with the accommodation process or made its decision not to represent the applicant because of discriminatory factors. Both of these assertions would require a factual underpinning.

One cannot presume that a union’s failure to act was based on discriminatory beliefs. There may be many reasons why a union might choose not to pursue a human rights claim on behalf of an employee that have no discriminatory overtones. As such, it is essential that a factual basis for the alleged discriminatory conduct be established. A claim of discrimination must go beyond the mere fact that a particular union did not act.

In this case, there are no allegations against the Union apart from the fact that it did not complain about the Employer’s conduct. The applicant concedes that this is the sole reason for his Application against this Union. This is not a sufficient basis upon which to file an Application under the Code. Accordingly, I find that the applicant has failed to establish a prima facie case against the Union and as such, the Application against the Union is dismissed.

Baylet v. Universal Workers Union, 2009 HRTO 700, at para. 16-19; see also Traversy v. Mississauga Professional Firefighters’ Association, 2009 HRTO 996

8The applicant has failed to establish that the alleged failure to act by the union was related to a ground under the Code. In the absence of an allegation of discrimination, the Tribunal has no jurisdiction over this respondent. Accordingly, the Application is dismissed against the union.