HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Robin Royeton
Applicant
-and-
Ontario Principals’ Council and Ian McFarlane
Respondents
DECISION
Adjudicator: Brian Cook
Indexed as: Royeton v. Ontario Principals’ Council
APPEARANCES
Robin Royeton, Applicant
Cecil Norman, Paralegal
Ontario Principals’ Council and Ian McFarlane, Respondents
Allyson Otten, Counsel
1This Application alleges discrimination because of ancestry, disability and sexual orientation contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application indicated that the area of the alleged discrimination was services. The applicant has subsequently filed a request to amend the Application to include membership in a vocational association as one of the social areas in which she alleges discrimination.
2The corporate respondent is a vocational association which is recognized as a bargaining agent by school boards, including the applicant's employer. The personal respondent is the Executive Director of the Council.
3The applicant has filed a related Application naming her employer as respondent.
4On review of the instant Application, the Tribunal noted that it appeared to allege that the respondents had not adequately represented her in her dealings with her employer. The Tribunal has consistently held that an allegation that a union or professional association has not provided adequate representation should be dismissed because, even if the allegation is true, it does not establish discrimination contrary to the Code. For example, in Traversy v. Mississauga Professional Firefighters’ Association, 2009 HRTO 996, the Tribunal said, at paragraph 33:
The failure or refusal to take forward a human rights issue, such as accommodation of a disability in the workplace, is not, in and of itself, a breach of the Code. There may be many reasons that have no discriminatory overtones why a union might choose not to pursue a human rights claim on behalf of an employee: see Baylet v. Universal Workers Union, 2009 HRTO 700. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.
5For this reason, the Tribunal scheduled a summary hearing to determine if the Application should be dismissed in whole or in part as having no reasonable prospect of success.
6The summary hearing was held by telephone conference call on August 26, 2015. The applicant was present for the call and was represented by Cecil Norman, a paralegal. The respondents were represented by Allyson Otten, counsel.
7At the hearing, Mr. Norman submitted that this Application is very complex and should not be dismissed at an early stage. He also submitted that this Application is not only based on allegations that the respondents failed to properly represent the applicant. He said that the applicant believes that the reason she was not properly represented was that the organizational respondent and its agents directly discriminated against her.
8Ms. Otten argued that while the other Application to which the employer is the respondent may be complex, the instant Application is not complex. In her submission, the Application consists only of allegations that the respondents failed to properly represent the applicant.
9The narrative that is part of the Application and that explains what the applicant alleges, details some of the issues that have arisen in her dealings with her employer and the Council. As Ms. Otten points out, every allegation about the respondents to this Application is an allegation that the respondents failed to take sufficient action to combat the discrimination that she alleged occurred at the hands of her employer. The narrative indicates that the applicant believes that the inaction by the respondents shows that the respondents condoned the discriminatory actions of the employer.
10The concluding paragraph of the narrative states:
OPC has discriminated against me for failing to provide me with legal support and advice. I have reason to believe that OPC subjected me to differential treatment because I am a woman who self-identifies as a Native, is openly lesbian in a same-sex partnership and has a disability….
11The Application does not make any specific allegation about the personal respondent, or suggest that he was involved in any way with the alleged discriminatory events, other than that as Executive Director, he was aware or should have been aware of what was happening.
12As discussed earlier, failure to provide adequate legal support and advice by a union or professional association is not, in and of itself, a basis for an Application under the Code. For there to be discrimination the applicant must be able to point to evidence to show that the failure to provide adequate representation was for discriminatory reasons.
13During the hearing, Mr. Norman was accordingly asked to explain what evidence the applicant would be able to produce that would support her contention that there is reason to believe that she experienced discrimination by the respondents to this Application.
14Mr. Norman advised that the applicant would be able to call other members of the Council who were satisfied with the service they received from the Council. Since these people are not identified with the Code-protected grounds that the applicant is associated with, he submitted that discrimination would be accordingly established.
15The fact that other members of the Council were satisfied with the service they received is not evidence that would show that the fact that the applicant was not satisfied was because she was discriminated against. To establish discrimination, an