Thomas v. IATSE Local 461, 2015 HRTO 1425

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rose Marie Thomas

Applicant

-and-

IATSE Local 461, Shaw Festival Foundation, Domenic Marcone, William Talbot, Margaret Molokach, Douglas Ledingham, David Edwards, Archie MacKenzie, and Don Findlayson

Respondents

RECONSIDERATION DECISION

Adjudicator: Michelle Flaherty Date: October 26, 2015 Citation: 2015 HRTO 1425 Indexed as: Thomas v. IATSE Local 461

WRITTEN SUBMISSIONS

Rose Marie Thomas, Applicant ) Self-represented

INTRODUCTION

1This Application under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the ("Code"), concerns allegations of discrimination and harassment because of disability and sex. The applicant alleges that she was sexually harassed at work. She submitted that the respondents failed to provide a harassment-free workplace, failed to respond appropriately to her complaints of sexual harassment, and failed to accommodate her disability by implementing or enforcing an appropriate smoking policy. The Applicant also alleged that the respondents reprised against her and that, among other things, her membership in the Union was revoked in retaliation for the complaints she made.

2In an Interim Decision issued following 15 days of hearing, I dismissed the Application in part: 2015 HRTO 872. I concluded that the allegations against IATSE Local 461, William Talbot, Margaret Molokach, Douglas Ledingham, David Edwards, and Archie MacKenzie (the "Union Respondents") and Shaw Festival Foundation and Don Findlayson (the "Employer Respondents") had no reasonable prospect of success. However, I held that the Application could proceed against the personal respondent, Domenic Marcone. At this stage of the proceeding, it is not possible to assess whether the allegations against Mr. Marcone have any reasonable prospect of success.

3For the reasons that follow, the Request for Reconsideration is dismissed. The applicant has presented no basis under Rule 26.5 to reconsider the conclusions reached in the Interim Decision.

REQUEST FOR RECONSIDERATION

4Pursuant to section 45.7 of the Code, any party to a proceeding before the Tribunal may request that it reconsider its decision. The Rules elaborate on the conditions and requirements of such a request. Rule 26.5 states that a reconsideration will not be granted unless the Tribunal is satisfied that:

a. there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

b. the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

c. the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

d. other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

5The Tribunal's Practice Direction on Reconsideration includes the following statement:

Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Reconsideration is not an appeal or an opportunity for a party to change the way it presented its case.

6Reconsideration is a discretionary remedy in that, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the making of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

7In her Request for Reconsideration, the applicant argues that: (i) the Interim Decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; and (ii) other factors exist that outweigh the public interest in the finality of Tribunal decisions.

8More specifically, the applicant submits:

a. The Tribunal erred by not applying the established legal test relating to the employer's duty to investigate the applicant's complaints of sexual harassment;

b. The Interim Decision is in conflict with the established case law concerning an employer's duty not to directly or indirectly discriminate against an employee on the basis of disability;

c. The Interim Decision is in conflict with established case law around the union's duty to accommodate a member with a disability; and

d. The Tribunal misapprehended some of the facts and evidence.

9I address each of these arguments in turn.

THE DUTY TO INVESTIGATE ALLEGATIONS OF SEXUAL HARASSMENT

10The applicant submits that the Interim Decision fails to apply the established legal test concerning the duty to investigate allegations of sexual harassment. The applicant states that I erred in two ways: first, by concluding that no duty to investigate exists unless a formal complaint is made; and second, in holding that the duty to investigate is not triggered unless the complainant consents to an investigation.

11The applicant submits that I failed to cite and apply the Tribunal's decisions in Laskowska v. Marineland of Canada Inc., 2005 HRTO 30 ("Laskowska"); Zambito v. LIUNA Local 183, 2015 HRTO 605 ("Zambito"); and Islam v. Big Inc., 2013 HRTO 2009. I note that, prior to the Request for Reconsideration, these cases were not before the Tribunal. Although the above-noted cases are not referred to in the Interim Decision, as I explain in more detail below, there is no basis to conclude that the Interim Decision is in conflict with them.

12The duty to investigate is an important obligation and a means of ensuring a discrimination-free environment: Laskowska, para. 53. A respondent does not necessarily require the applicant's consent to investigate allegations of harassment. Similarly, the Code does not require that an applicant file a formal complaint. However, the manner in which the allegations are communicated can be significant.

13The duty to investigate does not require respondents to engage in fishing expeditions. As the Tribunal held in Zambito, the obligation to investigate is triggered when the following two conditions are met:

First, the complaint must be communicated by the applicant, or be otherwise known to the employer, in a manner sufficient to engage this obligation. Second, the substance of the complaint must be about some potential violation of the Code. (para. 25)

14In this case, the employer learned of the applicant's allegations of sexual harassment on two occasions. In each instance, when the applicant communicated her allegations, she declined to identify the alleged harasser, refused to provide particulars or specifically asked that the matter not be pursued.

15In addition, the applicant acknowledged that she raised allegations of harassment in September 2008 as a means of bartering for a leave that she had been otherwise unable to obtain. The applicant leveraged her allegations to achieve favourable conditions of departure from the workplace. She described this arrangement as a "solution to the harassment issue."

16In the circumstances of this case, I am not satisfied that the applicant's allegations were communicated to the employer in a manner that engaged an obligation to investigate her complaints. Accordingly, I cannot conclude that the conditions in Zambito were met.

17Given that that this aspect of the Interim Decision is not in conflict with established jurisprudence, it is not necessary for me to determine whether the proposed reconsideration involves a matter of public importance.

DUTY TO ENFORCE THE SMOKING POLICY

18The applicant submits that established case law requires the employer not only take reasonable steps to enforce its policy, but also to demonstrate "effective" enforcement. The applicant states the employer failed to ensure a discrimination-free workplace because it was not entirely effective in enforcing its policy.

19Although the applicant submits that the Interim Decision breaks from established case law, she fails to cite any jurisprudence in support of her argument.

20Moreover, the evidence establishes that when the employer became aware of alleged violations of its smoking policy, it took the issues seriously and made further attempts to enforce the policy. There is no basis to conclude that, where an employer takes reasonable steps, it should nevertheless be held liable in discrimination for every policy breach committed by its employees. Contrary to the applicant's submissions, this is not the established standard to which respondents are held: see, for example, Baisa v. Skills for Change, 2010 HRTO 1621 at para. 66

THE UNION'S DUTY TO ACCOMMODATE

21The applicant states that the Interim Decision is in conflict with established jurisprudence regarding the Union's duty to accommodate the applicant.

22She argues that the union should not have scheduled two meetings (the membership vote meeting and the meeting about a prior call) when the applicant was unavailable because of a "medical leave reassignment". These arguments are being advanced for the first time in the Request for Reconsideration: see Interim Decision, paras. 7-8 and 47.

23Importantly, a Reconsideration is not an opportunity to relitigate the case or to raise arguments that could have been made at an earlier stage of the proceeding, which is precisely what the applicant is attempting to do. For this reason alone I would dismiss this aspect of the Request for Reconsideration.

24However, even if I were to consider this aspect of the Reconsideration request, I would not allow it because the evidence does not support the applicant's arguments:

a. Regarding the membership vote, the union constitution does not entitle a person to attend the meeting in which her membership is at issue. In addition, I do not accept the applicant's characterization of her status as a "medical leave reassignment". The applicant was not reassigned by the employer of the union. Rather, she elected to leave the workplace and provided no disability-related reason for this departure.

b. The prior claim meeting took place in January 2008, before the applicant negotiated her departure from the workplace. While the applicant testified that she was unable to attend the January 2008 meeting, she did not suggest any disability-related reason for her absence.

25The applicant states that the union made important decisions in her absence, which she says violates principles of procedural fairness. The Tribunal does not have the power to evaluate general claims of unfairness: see, for example, Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 at para. 27. The applicant has not demonstrated a connection between any allegedly unfair treatment by the union and the Code.

26Finally, the applicant argues that the union did not accommodate her disability in its proposed administration of a trades test. Again, the applicant is attempting to relitigate the case and to raise arguments that could have been made earlier in the proceeding. For this reason, this aspect of the Reconsideration Request is dismissed.

27In any event, the applicant's own evidence established that the union went to extraordinary lengths to try to address her needs in the administration of the test. The business agent offered to travel to the applicant's new workplace in Toronto and he gave her a number of options for administering the test. The applicant declined all of the union's proposals in this regard. She raised a number of objections to the trades test, including which version should be administered to her, how much notice she should receive, who designed the test, when she was available to write it, what venue would be used, what materials would be made available to her to prepare for the test, and where it would be administered.

28Taken as a whole, the applicant's evidence showed that she had no intention of taking the trades test, regardless of the union's many attempts to facilitate the process. Given the range of measures proposed by the union, the applicant's allegation that it failed to accommodate her disability-related needs has no reasonable prospect of success.

29The Applicant has provided no basis to reconsider the conclusions concerning the union's duty to accommodate her, nor has she provided any convincing basis for me to reach a different conclusion on the substantive issues.

ALLEGED MISAPPREHENSION OF THE EVIDENCE AND THE LAW

30The Request for Reconsideration identifies a number ways in which the applicant believes I have misapprehended the evidence. For example:

a. At the hearing and in her Request for Reconsideration, the applicant contends that she provided particulars of her allegations to Archie MacKenzie, whom she submits is part of the employer's management team. In the Interim Decision, I concluded that Archie MacKenzie is a member of the union and that, although he was working in a supervisory capacity, he was not a member of Shaw management. While the applicant clearly disagrees with this factual conclusion, she has provided no basis to reconsider it.

b. The Interim Decision finds that the applicant identified no incidents of ongoing harassment when she met with Mr. Findlayson in September 2008. The Request for Reconsideration refers to a document, which the applicant says she read to Mr. Findlayson at that meeting. In this document, the applicant describes the incidents with Mr. Marcone as "still going on". The applicant did not, however, identify any specific incident of ongoing harassment, either during her testimony or in the document she allegedly read to Mr. Findlayson.

c. The Interim Decision states (at para. 32): "For example, no prior claim attaches if a member already holds a prior claim to that position but has taken an authorized leave of absence." The applicant submits that this is a factual error and that a prior claim would, in fact, attach where an employee is on an authorized leave.

31As the applicant states, the record in this case is significant. The Request for Reconsideration takes issue with some of my factual conclusions, but does not establish any material factual errors. Indeed, the applicant does not submit that any alleged errors had a material bearing on the outcome of the case or the conclusions reached in the Interim Decision.

32Finally, the Request for Reconsideration alleges that I have misinterpreted policies, case law, and certain legal arguments. The applicant disagrees with the Interim Decision and is attempting to reargue certain aspects of the case. As noted, a Reconsideration is not an appeal or an opportunity for a party to repair deficiencies or reiterate its case. None of the arguments advanced by the applicant support her Request for Reconsideration within the meaning of Rule 26.

CONCLUSION

33The Request for Reconsideration is dismissed.