HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Josh Johnson

Applicant

-and-

The Canadian Office and Professional Employees Union Ontario

Respondent

DECISION

Adjudicator: David Muir

Date: June 10, 2014

Citation: 2014 HRTO 854

Indexed as: Johnson v. The Canadian Office and Professional Employees Union Ontario

APPEARANCES

Josh, Johnson, Applicant ) Self-represented

The Canadian Office and Professional ) Glenn Wheeler, Counsel

Employees Union Ontario, Respondent )

[1] This is an Application filed on September 26, 2013 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of family status.

[2] In a Case Assessment Direction issued on October 18, 2013 the Tribunal directed, on its own initiative, that a summary hearing be held in this case to determine whether this Application should be dismissed in whole or in part, on the basis that there is no reasonable prospect that it will succeed or because it was filed beyond the one year time limit set out in section 34 of the Code.

[3] A summary hearing was held on June 4, 2014 by telephone conference call. All parties participated.

[4] For the reasons that follow this Application is dismissed.

[5] Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

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.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

[6] Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, [2010 HRTO 1994](https://www.minicounsel.ca/hrto/2010/1994), at paras. [8 and 9](https://www.minicounsel.ca/hrto/2010/1994):

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.

[7] The applicant was employed as a constituency assistant in the constituency office of an MPP on a series of temporary contracts. His employer was the Ontario NDP caucus. When the MPP resigned his seat the applicant’s spouse was elected as the MPP for the riding on October 6, 2011. It appears that the employer placed the applicant on a leave of absence, although the applicant’s employment status was somewhat unclear at least to the applicant. Although this is not raised in the Application, the applicant claimed at the hearing that he did not receive severance pay and the respondent did not pursue this issue.

[8] The respondent, his bargaining agent, had a collective agreement with the employer which governed the applicant’s terms and conditions of employment. The respondent was advised by the employer that the applicant was paid two months wages in lieu of notice and 4.5 days vacation pay. The employer further advised that the applicant was kept on payroll after the election from October 7 to December 13, 2011 and that he was not paid severance pay because he was not entitled to it. Everyone understood at the time that the applicant was dismissed from employment pursuant to the provisions of the Legislative Assembly Guide for Members (“Guide”), promulgated by the Board of Internal Economy of the Legislative Assembly, that provides that an MPP may not employ a spouse.

[9] The respondent asserts that the issue of the Guide and its effect on the applicant’s employment was discussed with the applicant on several occasions in late 2011 and he was told that the respondent would not grieve his dismissal because it did not believe that the Guide could be successfully challenged because it did not conflict with the collective agreement. Otherwise the respondent asserts that they had limited contact with the applicant until August 2013 when he made enquiries of his rights with respect to posting for jobs outside of the respondent’s bargaining unit.

[10] At the heart of the applicant’s complaints as framed in the Application is the alleged failure of the respondent to challenge the prohibition on MPPs hiring their spouses to work in their constituency offices. At the hearing the applicant re-framed the issue somewhat as an alleged failure to provide representation to him up to and including in August 2013 when the applicant made enquiries of the respondent with respect to a number of job openings in an OPSEU bargaining unit because the applicant alleges, he was married to an MPP, a member of management according to the applicant. This he says is discrimination on the basis of family status – essentially the claim is that the respondent ignored his concerns because he was married to a member of management.

[11] To the extent that this case is really about the initial termination of the applicant’s employment and any attendant failure of the respondent to properly represent him in respect of those issues it is out of time and must be dismissed for that reason. Section 34 (1) and (2) of the Human Rights Code read as follows:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

[12] This Application was filed in September 2013. The Tribunal has interpreted these provisions as being mandatory subject to the provisions of section 34(2) and they require that an applicant file his or her Application within one year of the last incident of alleged discrimination. If the applicant is relying on an alleged “series of incidents” in 34(1)(b), the Tribunal has determined that a putative “series of incidents” must be connected both temporally and in its subject matter. Lengthy gaps in time between alleged incidents of discrimination may be sufficient to interrupt a series of incidents.

[14] I also find that these allegations have no reasonable prospect of success. I find that there is no evidence to which the applicant can point which would tend to establish that a factor in the union’s position was that he was married to a member of the NDP caucus, the employer. The respondent asserts and the applicant does not dispute the fact that the respondent considered the interaction of the Guide and the collective agreement. They claim, without contradiction by the applicant, that they sought legal advice and determined that they could not successfully challenge the Guide. This is perhaps not surprising given section 24(1)(d) of the Code which provides:

(1) The right under section 5 to equal treatment with respect to employment is not infringed where,

(d) an employer grants or withholds employment or advancement in employment to a person who is the spouse, child or parent of the employer or an employee;

[15] The applicant asserts that the respondent took up the issues of other employees in support of their seniority rights but not him. The only difference between him and the other employee, the applicant claims, is that he was a spouse of a caucus member, the employer. In a sense this is not disputed – the respondent agrees that it did not take on the issue of the termination of the applicant’s employment because it felt not unreasonably that it would be unsuccessful in challenging the Guide. The applicant points to no evidence that would tend to support that this conclusion was a ruse to obscure the fact that they did not want to take on the employer because the applicant’s spouse was a member of the employer. As regards the other allegations that the respondent was not sufficiently supportive of the applicant’s attempts to vindicate his recall rights and/or obtain other employment in caucus there are two problems for the applicant. First, it was asserted by the respondent and not contradicted by the applicant that under the collective agreement, seniority attaches to the MPP and their constituency office. Given that, while the applicant had theoretical recall rights and has them still, so long as he was the spouse of the MPP in question those rights could not be exercised because of the no spouse rule. Secondly, to the extent that the applicant continues to have some rights with respect to posting for other positions in the bargaining unit, he acknowledges that he did not attempt to exercise those rights and apply for any other positions in the bargaining unit. His approach to the respondent in August 2013 was about postings outside of his bargaining unit. The applicant has no evidence to support his contention that any shortcomings in the respondent’s dealing with him on those issues, and it is not at all clear that the response was inappropriate, was informed in any way by his being married to a member of the NDP caucus.

[16] For all of these reasons the Application is dismissed.

Dated at Toronto, this 10th day of June, 2014.

“signed by”

David Muir

Vice-chair

Johnson v. The Canadian Office and Professional Employees Union Ontario, 2014 HRTO 854

Case Summary