James Watt v. The Corporation of the City of Cambridge, 2014 HRTO 218

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

James Watt

Applicant

-and-

The Corporation of the City of Cambridge

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: February 18, 2014 Citation: 2014 HRTO 218 Indexed as: Watt v. Cambridge (City)

APPEARANCES

James Watt, Applicant Self-represented

Canadian Union of Public Employees, Local 32, Respondent Paul O’Ryan, Counsel

The Corporation of the City of Cambridge, Respondent Steve Matheson, 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”), alleging discrimination with respect to disability because of employment.

Backround

2The applicant is an employee of the respondent City and is represented by the respondent Canadian Union of Public Employees, Local 32 (the “union”). The applicant states in the Application that he injured his right shoulder in a workplace injury and the City accommodated him by creating a position within his restrictions in which he worked for several years. The applicant alleges that the City is no longer willing to accommodate him and that the union declined to assist him and stated that he was lucky to have a job.

Summary Hearing

3By Case Assessment Direction dated July 5, 2013, the Tribunal directed that a summary hearing by teleconference be held to determine whether the Application should be dismissed, in whole or part, as against the union because it has no reasonable prospect of success. The Tribunal held the summary by teleconference on November 27, 2013.

Analysis and Decision

4Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

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.

5In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments with respect to summary hearings at paragraphs 8-9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

6The Tribunal has stated on many occasions that it does not have a general power to deal with allegations of unfairness. See for example: Szabo v. Office of a Member of Parliament of Canada, 2011 HRTO 2201 and Badvi v. Voyageur Transportation, 2011 HRTO 1319. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as race, gender or disability. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics was a factor in the treatment the applicant experienced. At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment they experienced. Indeed, many experiences of unfairness, which are not defined as discrimination in the legal sense, can cause significant financial and emotional damage.

7At a summary hearing, the test the Tribunal applies is that of no reasonable prospect of success, which is determined by assuming the applicant’s version of events is true, unless there is some clear evidence to the contrary. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The mere fact that a person identified by a prohibited ground of discrimination experiences some kind of disagreeable or unfair treatment is not generally sufficient to support an inference of discrimination. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any or sufficient direct or indirect evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics. However, if the applicant is unable to point to circumstances beyond his or her own assumptions or belief, the application may be found to have no reasonable prospect of success.

8The Tribunal has found that inadequate representation by a union, such as failing to file a grievance, is not, in and of itself, a violation of the Code. Rather, a claim that a union violated the Code must be based on an assertion of differential treatment because of a prohibited ground of discrimination and that an applicant must provide a factual basis that could support a finding of discrimination by his or her Union. See: Traversy v. Mississauga Professional Firefighters’ Association, 2009 HRTO 996 and Baylet v. Universal Workers Union, 2009 HRTO 700.

9In his submissions during the summary hearing, the applicant submitted that he believed that the City discriminated against him by discontinuing the accommodation it adopted several years ago after he injured his shoulder. The applicant stated that the union “blew him off” and did not assist him, although one union official initially agreed with the applicant’s view.

10While the applicant did not receive the union’s assistance regarding his disability, the applicant made no submissions that his disability was a factor in the union’s decision not to assist him. Consequently, the applicant presented no evidence that he has or has reasonably available to him that would link the union’s actions to a prohibited ground of discrimination. Accordingly, the Application has no reasonable prospect of success as against the union and is dismissed.

Order

11The Tribunal orders as follows:

1. The Application is dismissed as against the union and the style of cause amended accordingly; and,
2. The Application as against the City shall be returned to the Registrar for processing.

12I am not seized.