Mulu Wondimu v. The Ethiopian Emergency Mutual Relief Association of Toronto Inc., 2014 HRTO 208

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mulu Wondimu Applicant

-and-

The Ethiopian Emergency Mutual Relief Association of Toronto Inc. Respondent

DECISION

Adjudicator: Leslie Reaume
Date: February 14, 2014
Citation: 2014 HRTO 208
Indexed as: Wondimu v. The Ethiopian Emergency Mutual Relief Association of Toronto Inc.

APPEARANCES

Mulu Wondimu, Applicant
Self-represented

The Ethiopian Emergency Mutual Relief Association of Toronto, Inc., Respondent
Self-represented

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging reprisal and discrimination on the basis of sex. A hearing took place over five days in January and August, 2013. The application was dismissed on the final day of hearing, August 16, 2013, with reasons to follow. These are my reasons for dismissing the Application.

2I heard the evidence of the applicant and the witnesses she called in support of her allegations. Where I have found that testimony relevant, I have set it out in my reasons below. Translation between English and Amharic was made available to the parties and witnesses on an as-needed basis. The applicant was permitted considerable flexibility in asking questions of her witnesses to ensure that they fully understood the issues she was attempting to have them address. The respondent was initially represented by counsel for the January hearing dates but self-represented when the hearing resumed in August, 2013. The applicant was self-represented throughout.

3At the conclusion of the applicant’s witnesses I asked to hear submissions from the parties on whether the evidence presented at the hearing supported the applicant’s allegations of discrimination or whether there was no reasonable prospect of success. I concluded that even if I treated the applicant’s allegations as if they were true and then found that the applicant had been treated unfairly, there was insufficient evidence to support a finding that her gender was connected to her treatment. My findings were not based on a lack of credibility on the part of the applicant and her witnesses. The dismissal of the Application was based on the finding that there was no reasonable prospect that the applicant could prove a connection between her treatment and her gender, a critical connection which the applicant is required to make in order to establish a breach of the Code.

4The applicant’s allegations arise from her membership in the respondent association. The respondent is a volunteer association which was formed in 1996. The members pay dues to keep their membership in good standing and in return, the association provides assistance with funeral expenses for its members. The applicant joined in the early days of the association in 1997, and was a member until October, 2011. She was elected by the general assembly (the members of the association) to the executive committee three times, most recently in August, 2010 as a financial officer, and previously as vice-president. The applicant’s allegations of discrimination arise from her involvement as a member of the association and her position on the executive committee following the August, 2010 election. The applicant alleges that she was treated unfairly, expelled from the executive committee and as a member of the association and denied due process because she is a woman.

5The applicant did not initially identify one of the five areas under the Code which is alleged to be engaged by her Application. In response to an inquiry by the Tribunal, the applicant filed a revised Application checking off “vocational association” but crossing out vocational and inserting “community”.

6The association is not a vocational association as that concept is understood under the Code. This section of the Code relates to a person’s right to join and be treated equally in a trade union or professional association. The applicant’s allegations do not arise from her membership in a vocational association but rather her membership in a community association. What the applicant is actually alleging is that she was denied the opportunity to participate in the services provided by the association and therefore the proper area under the Code is “services”.

7In the revised Application, the applicant also clarified that her allegation of reprisal is related to her refusal to infringe on another person’s rights under the Code. She provides two examples in support of this allegation: first, that she objected to the dismissal of another member of the executive committee; and second, she objected to what she describes as unfairness in the manner in which late membership fees were assessed and collected.

8The applicant’s reprisal allegations are based on a broader sense of unfairness than is captured by the legal concept of reprisal under the Code. The applicant testified that she felt she experienced reprisal for standing up for other people who were, in her view, being treated unfairly in a general sense by some of the members of the executive committee. She alleges that she was standing up for the general rights of other members of the community association and against what she perceived as a lack of due process. To establish reprisal under the Code, the applicant would have to prove that she experienced an intentional action or threat related to her attempt to enforce her rights under the Code. The applicant described her experience standing up against unfairness in a general sense and as a result, the allegation that she experienced reprisal under the Code was dismissed.

9The allegations which remain relate to a conflict that emerged after the August 2010 election between the applicant and some members of the executive committee. The conflict led to the applicant being removed from the executive committee and eventually being deemed by the executive committee to have resigned her membership in the association. There were a number of allegations made against the applicant that she was absent from meetings, disclosed confidential information about members and failed to prepare and file financial reports in accordance with the rules. For the most part the applicant denied these allegations, although she admitted during cross-examination that she had not delivered financial reports as she was required to do.

10However, in my view, the core issue in the dispute relates to unpaid membership fees. In 2009, prior to her election to the executive committee in August 2010, the applicant had been involved in an ad hoc committee, the purpose of which was to create an accurate list of overdue membership fees. Mr. Negaye Shibshe Haile, the president of the executive committee after the August 2010 election, and the person whom the applicant holds largely accountable for how she was treated, was also a member of that committee. Mr. Haile was also the president of the association during the period when the applicant served as vice-president. The applicant testified that she had no issues working with Mr. Haile during those periods.

11The list of overdue membership fees was approved by the general membership and when the August 2010 election occurred, the new executive committee took responsibility for implementing a plan to recover the outstanding fees.

12The applicant testified that after the election, she discovered errors in the report and made efforts to correct them. She also believed that some members were receiving preferential treatment while others were treated more harshly with respect to their overdue membership fees. The applicant testified that she advocated that the members be treated fairly in the process of collecting the unpaid dues and that her concerns were ignored.

13The applicant testified that her efforts to correct mistakes in the overdue membership list were met with allegations that she was tampering with the list. The president and other executive committee members accused her of making unilateral changes to the list and ignoring the payment schedule which had been approved by the general assembly.

14For the most part, the applicant testified using general statements that her ideas were undermined or ignored and she was not treated respectfully. When she was asked to be more specific, the applicant testified that when she suggested that her concerns about the issue of the outstanding dues be taken to the general assembly to decide, her suggestion was rejected by all but one member of the executive committee.

15The applicant testified that she was “attacked” by Mr. Haile for trying to help one of the members who was, in her view, treated inappropriately by a member of the executive committee. The applicant testified that this incident undermined her role as a member of the executive committee and her efforts to ensure fairness in the collection process were dismissed and ignored. She did not elaborate on what she meant by “attacked” except to say that she was treated disrespectfully and spoken to in a harsh manner.

16The dispute appears to have escalated to the point of considerable acrimony between the applicant and other members of the executive committee. A letter from the executive committee, dated March 21, 2011 and signed by Mr. Haile, was sent to the applicant advising her that her role in the executive committee was terminated effective that date. She was asked to return items in her possession which were the property of the association. The applicant testified that she did not respond immediately to the letter nor did she return the items in her possession as requested.

17In a second letter dated May 11, 2011, also signed by Mr. Haile, the applicant is accused of failing to respond to the request to return association documents in her possession. The letter advises the applicant that if she does not comply with the conditions set out in the letter she will be considered to have voluntarily withdrawn from membership in the association effective May 23, 2011.

18The applicant sent a letter to the executive committee which is dated May 31, 2011, in which she states that she received the two letters sent by the executive, that she objects to the decision to expel her from the executive committee and expects this issue to be discussed at an upcoming meeting of the general assembly. The applicant acknowledges that she did not return the association property as she was requested to do. She testified that she did not trust the other members of the executive committee because they were falsifying allegations against her to justify expelling her.

19The applicant testified that she was present at a meeting of the general assembly which took place almost five months later on October 2, 2011. The applicant expected to be able to defend herself at this meeting because the association bylaws provide that where the executive committee expels a member, that decision must be confirmed by the general assembly. The general procedure for approving suspensions and expulsions is to have the list of affected members read out at the meeting, and to have the list approved unless there are objections from the members.

20It was unclear from the evidence whether the applicant’s name was read out at the October 2, 2011 meeting as one of the expelled members or whether the general assembly was advised that she had resigned. In any event, the applicant asked to address the general assembly about her expulsion from the executive committee. The applicant testified that her efforts to speak were initially obstructed by the chair until the members of the general assembly urged her to continue. She was concerned that by the time she was permitted to speak the meeting was drawing to a close and people were leaving the hall. She also testified that the secretary of the executive committee attempted to physically take the microphone from her hands. As far as the applicant is aware, no decision was made to confirm her expulsion from either the executive committee or the association. The applicant asked for a neutral investigation of her concerns and efforts were made toward reconciliation, however, at the time of the hearing, the applicant remained estranged from the association.

21To summarize the applicant’s allegations, she testified that her views and suggestions were dismissed and that she was treated disrespectfully as a member of the executive committee. She advocated for fairness in the collection of unpaid membership fees and believes that she was punished for attempting to take action to ensure that members were treated equally. She testified that the members of the executive committee, who did not agree with her ideas, falsified allegations against her and deemed her to have resigned when in fact she had been expelled. She also testified to her belief that the reason that the executive committee deemed her to have resigned was to get around the rules requiring them to justify her expulsion to the general assembly. The applicant testified that she was denied due process and that even while she was attempting to speak at the October 2, 2011 meeting, there were efforts made to take the microphone away from her.

22The applicant testified that she attributes this treatment to the fact that she was the only female member of the executive committee. She testified that she was punished because she is a woman and because she did not agree with the views of the other executive committee members.

23The applicant’s evidence that she was treated disrespectfully was supported in some respects by the evidence of other witnesses.

24Mr. Wolde Senbet testified that he was elected as the treasurer of the executive committee in the August 2010 election and that he worked alongside the applicant in her role as a financial officer. The applicant testified that Mr. Senbet was also treated disrespectfully by the executive board and she attributed this treatment to the fact that Mr. Senbet often agreed with her ideas. Mr. Senbet testified that he agreed with that evidence.

25Mr. Senbet resigned in February 2011, and as a result, was not part of the executive committee when the applicant was expelled. However, he testified that the applicant was not treated with respect by the other members of the executive committee. When he was asked to provide an example, Mr. Senbet testified that the applicant’s suggestions were not accepted. Mr. Senbet testified that in his experience, the members of the executive committee were also against him because he shared the same views as the applicant, particularly with respect to the collection of unpaid membership dues.

26Mr. Melesse H. Mariam testified that he was in attendance at the October 2, 2011 meeting of the general assembly. He testified to his recollection that the final agenda item was the list of members who were expelled or had resigned. The names were read out, including the applicant’s, at which point, she rose to speak. He testified that the applicant appealed to the general assembly about her expulsion from the executive committee and wanted to have a chance to be heard. He testified that the chairman and the secretary attempted to stop the applicant but the general assembly permitted her to continue. He testified that the applicant spoke about what had happened to her and that the meeting was adjourned without a decision or further discussion. He testified that he expected the applicant’s issues to appear on the next agenda since there was no vote taken confirming her expulsion. He confirmed the applicant’s recollection that the secretary had attempted to take the microphone from her hand. He testified that in his view the applicant’s rights had been violated and that he felt she should have been treated with more respect given her long-standing service to the association. He did not raise a concern with the executive committee or the general assembly after the meeting because he trusted that the issue would be resolved.

27Mr. Alemu Zena testified that he recalled the applicant reading her concerns at the meeting of October 2, 2011. He recalled that the general assembly wanted to hear her and wanted her to be permitted to finish what she had to say. He recalled people saying “let her finish”.

28Mr. Getu Hailu testified that he also recalled the secretary trying the grab the microphone from the applicant and the members of the general assembly shouting to him to stop. He testified that it was his understanding that the executive committee could not expel a member unless that decision was confirmed by a vote of the general assembly. He recalled that the applicant was speaking at the end of the meeting and at the same time people were leaving the hall. In his view, no decision had been made about the applicant’s membership in the association. He supported the applicant’s testimony that the rules had not been followed and she had been denied due process by the executive committee. He testified that he stayed after the meeting to speak with the chair. He testified that he was concerned that the applicant had not completed her statement, there had been no chance to discuss the applicant’s issues and people were leaving the meeting. He also testified that he recalled a similar situation involving a male member of the executive committee which occurred prior to the applicant. He testified that this person was treated in the same manner by the executive committee but was kicked out of a meeting before he could speak about his experience. He testified that he appreciated the applicant for bringing forward what he described as an injustice to the general assembly.

29Mr. Mulugeta Belete testified that he was also in attendance at the meeting of October 2, 2011. He recalled the secretary attempting to remove the microphone from the applicant. He testified that there was chaos when the applicant was speaking and people started leaving the meeting. He was also of the view that no discussion or decision had taken place with respect to the applicant’s status on the executive committee or her membership in the association. He also testified that he was not happy to testify about this incident and that it should have been resolved because the main purpose of the association is to cooperate and help one another when a member has passed away.

30There was evidence which I would say does not assist the applicant in proving that her gender was a factor in the treatment she experienced. For example, the applicant did not dispute that the person who took her place on the executive committee was a woman or that a female member was elected to the executive committee in the next election, or that the association has had a woman president in the past. She also testified that she had worked with Mr. Haile, the person she holds largely responsible for how she was treated, when she was vice-president of the executive committee, on the 2009 audit committee and on several other occasions without incident. In addition, Mr. Senbet testified that he had been similarly treated and although he felt the applicant had been treated more harshly, he not could provide any further details beyond the suggestion that her ideas were not accepted. Mr. Hailu testified about his view that a male member of the executive committee had been treated similarly and denied due process prior to the applicant.

31None of this evidence is conclusive that gender discrimination was not a factor in what the applicant experienced. However, the burden is on the applicant to prove the connection between her experiences and her gender. I concluded that there was no direct evidence and there was insufficient circumstantial evidence from which I could draw an appropriate inference that gender was a factor in the applicant’s treatment even if I accepted that she had been treated unfairly.

32In coming to this conclusion, I have been very careful to ensure that this Application is not dismissed simply because the respondent has an alternative explanation of the events. I have been mindful of the fact that in some cases an application must proceed further in the hearing process because the respondent is the party who has control over the evidence which could favour the applicant’s case. At an earlier point in the hearing I reviewed all of the disclosure and directed that the respondent produce documents which were arguably relevant but had not been disclosed, including the minutes of various meetings, for the applicant to rely on as part of her case.

33The Tribunal is not empowered to remedy general allegations of unfairness. Discrimination in the legal sense requires proof that unfair treatment is based, at least in part, on a prohibited ground under the Code. In other words, the prohibited ground of discrimination must somehow be a factor in the adverse treatment.

34The applicant testified that when these events occurred, she requested that the circumstances surrounding her removal from the executive committee and the association be investigated by a neutral committee. The applicant testified that when she filed her Application with this Tribunal she was seeking an independent, neutral, third-party investigation into the conduct of the members of the executive committee who supported her removal from the committee and the association. I have no reason to question the sincerity of the applicant’s perception that her gender was a factor in the treatment she experienced. However, where there is insufficient evidence to support a person’s perception that they have experienced discrimination, the application must be dismissed.

35Accordingly, the Application is dismissed.