Nowick v. Unifor Local 222, 2015 HRTO 1190

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Barbara Nowick

Applicant

-and-

Unifor Local 222/ Unifor Canada

Respondent

DECISION

Adjudicator: Colin Johnston

Date: September 9, 2015

Citation: 2015 HRTO 1190

Indexed as: Nowick v. Unifor Local 222

APPEARANCES

Barbara Nowick, Applicant

Barbara Nowick, Self-represented

Unifor Local 222/ Unifor Canada, Respondent

Anthony Dale, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of disability and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant filed this Application against her union, Unifor Local 222/ Unifor Canada. She has also filed a separate Application against her former employer, General Motors of Canada (“GM”).

3By way of a Case Assessment Direction (“CAD”) dated March 10, 2015, the Tribunal directed that a Summary Hearing be held to determine whether the Application has any reasonable prospect to succeed.

4The applicant subsequently filed an amended Application and sought to consolidate this Application with her Application against General Motors of Canada. The applicant also sought to defer this Application pending the outcome of a Duty of Fair Representation complaint before the Ontario Labour Relations Board.

5A second CAD dated July 8, 2015 was issued by the Tribunal directing that the Summary Hearing would deal with the following issues:

a. whether the applicant will be permitted to amend her Application;

b. whether the original and amended versions of the Application have no reasonable prospect of success;

c. whether the Application should be deferred pending the outcome of a duty of fair representation complaint before the Ontario Labour Relations Board; and

d. that the request for consolidation would be considered (at a later date) if the applicant was successful on paragraph b.

6A Summary Hearing was held on August 5, 2015. The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding and usually before any responses are filed, whether an application should be dismissed in whole or in part as there is no reasonable prospect that the application will succeed.

BACKGROUND

7The applicant was employed by General Motors of Canada (“GM”) in Oshawa from 1987 to 2014 in the finishing department. The applicant was a member of the respondent union throughout the course of her employment with GM.

8In September 2012, the applicant went off work due to a repetitive strain injury. She remained off work and received Workplace Safety Insurance Board (“WSIB”) benefits until July 2013. When her WSIB benefits were discontinued, the applicant applied for sickness and accident benefits (“S&A benefits”) which is a negotiated benefit under the collective agreement. The applicant’s claim for S&A benefits was denied on the basis that she did not meet the plan’s definition of total disability. The applicant appealed this decision with the assistance of her union.

9The applicant continued to remain off work. In October 2013, GM identified a job which it believed was consistent with her medical restrictions. The job that was being offer was referred to as a “Tack Off” position. The job involved the use of a handheld buffer used to finish product on the production line. The applicant stated that she had concerns about the appropriateness of the job and submitted that both her doctor and the WSIB stated that the job did not meet her restrictions.

10The applicant, nevertheless, attempted to return to work to this position but reinjured herself after 2 days on the job. The applicant remained off work following her re-injury. It appears that GM disputes the applicant’s position that the Tack Off job was beyond her medical restrictions. The employer also disputes that the applicant re-injured herself.

11In the period that followed, GM wrote to the applicant requesting medical information to support her continued absence from work. The applicant provided further medical information but the employer found this information insufficient to support her absence from work for medical reasons.

12In January 2014, GM wrote to the applicant advising that it was ending her employment through a separation provision under the collective agreement (Article 54(3) of the Master Agreement).

13The union filed a grievance on the applicant’s behalf challenging her separation. It appears that there was some discussion between the union and GM to utilize a provision in the Master Agreement (Article 43), which provides for an independent medical evaluation to resolve disputes over medical evidence. In the end, that provision was never utilized.

14In March 2014, GM advised the union that the Tack Off job was no longer available. The applicant states that she offered to pay for half of the cost of the independent medical evaluation to prove that the Tack Off job was beyond her restrictions but the union rejected her offer.

15In October 2014, the applicant, her husband, local union representatives and GM officials met to discuss a possible settlement of the applicant’s grievance. The settlement proposed that the applicant be reinstated, her seniority credited to September 2014, and that she accept voluntary early retirement. It appears that the applicant had reservations settling her grievance but ultimately signed the settlement.

16At the time of the settlement, the applicant’s appeal of S&A benefits was still outstanding. In February 2015, the national union wrote to the applicant and advised her that it was withdrawing her denial of S&A benefits appeal, due to a lack of medical evidence. The applicant submits that had she known the union was going to withdraw her appeal she would not have signed the grievance settlement or at the very least negotiated a different settlement. The applicant further submits that the local union mislead her about the consequences of accepting early retirement and failed to share pertinent information about the possibility of her receiving disability benefits and maintaining her right to recall.

ANALYSIS

No Reasonable Prospect of Success

17For the purpose of this Summary Hearing, I have considered the pleadings set out in both the original Application and the amended Application to determine whether there is no reasonable prospect of success in this case. The CAD dated July 8, 2015, directed the applicant to submit a summary of all of the allegations that she raises against the respondent union. The applicant complied with the direction and provided a 3 page summary on July 13, 2015.

18During the Summary Hearing, I asked the applicant to elaborate on and clarify the allegations set out in her summary. Her allegations can be summarized as follows:

a. The local union failed to pursue her grievance to arbitration in order to secure her full reinstatement;

b. The local union was simply a bystander in the accommodation process and took no steps to challenge the employer’s position that the Tack Off position met her medical restrictions;

c. The local union failed to invoke Article 38 of the collective agreement to resolve the dispute over the medical evidence. The union also rejected the applicant’s offer to pay for half of the cost of the independent medical report. As a result, the applicant was deemed to be on non-disability related leave which ultimately lead to her separation of employment;

d. The local union failed to explain the implications of settling her grievance and accepting a voluntary early retirement. The local union failed to disclose at the settlement meeting that the applicant may be entitled to other benefits such as retirement disability benefits which included possible recall rights;

e. Article 38 is itself discriminatory in nature, in that it presents a barrier to disabled workers getting back to work. As a party to the collective agreement, the union is liable for promulgating a work rule, which discriminates against disabled workers; and

f. The national union withdrew her appeal of S&A benefits without her input. The decision to withdraw her appeal was based on discriminatory considerations, namely, that the national union accepted the employer’s position that the applicant was offered appropriate modified work and accepted that there was no medical information supporting her ongoing absence.

19The respondent union submitted that the allegations raised by the applicant are matters properly before the Ontario Labour Relations Board as a duty of fair representation complaint and are not within jurisdiction of the Tribunal to decide.

20The union submitted that the applicant has failed to raise any allegation that she was treated differently by the union because of her disability or age. The union maintained that the applicant is simply not happy with the nature of her union representation but that unto itself is not a breach of the Code.

ANALYSIS

21Rule 19A of the Tribunal’s Rules of Procedure provides for a summary hearing, following which an application may be dismissed, in whole or in part, if the Tribunal finds that there is no reasonable prospect that the application or part of the application will succeed. The approach to deciding whether an application has a reasonable prospect of success following a summary hearing was explained as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8-10:

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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

22The Tribunal has consistently held that a union’s refusal or failure to act on behalf of a member cannot be discriminatory unless it is linked to a Code ground. See for example, Traversy v. Mississauga Professional Firefighters’ Association, 2009 HRTO 996 at para. 33.

23It appears that all of the allegations raised by the applicant, save and except the reference to Article 38 of the collective agreement, involve complaints about the union’s handling of the applicant’s grievance and S&A appeal. There is no evidence in the original or amended Application, or any evidence that may be reasonably available to the applicant which establish a link between the union’s actions or inactions and the applicant’s disability or age. The applicant is simply not happy with the quality of her union representation. As stated in numerous Tribunal decisions, the issues raised by the applicant that she was unfairly treated by her union are not matters which fall within the Tribunal’s jurisdiction to decide.

24As to the allegation that the union is liable under the Code for promulgating a work rule (Article 38 of the collective agreement) which discriminates against disabled workers, I fail to see how the applicant makes this connection. The Supreme Court of Canada stated in Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970, that a union may be found liable for discrimination if it participated in a rule which has a discriminatory effect on the applicant, or if it impedes the employer’s efforts to accommodate the worker.

25The applicant can point to no evidence, or any evidence that may be reasonably available to her, to suggest that the union sought to impede GM’s efforts to accommodate the applicant. The Application alleges that GM made one offer to accommodate the applicant and that offer was beyond her restrictions. The fact that the union did not ultimately challenge GM’s position on this point is not evidence that the union impeded the accommodation process.

26The applicant has failed to explain how Article 38, or the application of that article, is a work rule which has a discriminatory effect on her as a disabled worker. The purpose of Article 38 of the collective agreement is to provide a mechanism for the union and employer to resolve disputes over competing medical evidence between an employee’s and the company’s doctor. The procedure may be used to resolve disputes regarding the appropriateness of modified work. It is not a “work rule” but rather a mechanism to resolve workplace disputes. There is nothing in the language of this provision or in the evidence proposed by the applicant to suggest that this provision presents a barrier to accommodating disabled workers or had any discriminatory effect on the applicant.

27The applicant’s dispute is not with the language or application of Article 38, but rather her complaint is that the union did not utilize this provision on her behalf. Again, this is a complaint about the quality of the union representative. There is nothing in the applicant’s proposed evidence to indicate that the union’s decision, not to invoke Article 38, was influenced in any way, by discriminatory considerations.

28Accordingly, I find that both the original and the amended Applications in this case have no reasonable prospect of success were they to proceed to a full hearing.

29Given this finding, there is no need to determine whether the applicant is permitted to amend her Application, as both the original and the amended Applications are hereby dismissed.

30Furthermore, given this result, there is no need to determine the applicant’s request for deferral and her request to consolidate this Application with her Application against GM.

ORDER

31The Application in both its original and amended forms are hereby dismissed for having no reasonable prospect of success.