Bonnici v. Loblaws Inc., 2015 HRTO 1701

Human Rights Tribunal of Ontario

Between:

Anton Bonnici on behalf of Emy Bonnici Applicant

-and-

Loblaws Inc. Respondent

And Between:

Emy Bonnici Applicant

-and-

United Food and Commercial Workers Union, Local 1000A Respondent

Interim Decision

Adjudicator: Jo-Anne Pickel Date: December 17, 2015 Citation: 2015 HRTO 1701 Indexed as: Bonnici v. Loblaws Inc.

Appearances

Anton Bonnici and Emy Bonnici, Applicants Anton Bonnici, Representative

Loblaws Inc., Respondent Misha Wilson, Counsel

United Food and Commercial Workers Local 1000A, Respondent Elichai Shaffir, Counsel

1The applicants filed two Applications alleging that the respondents discriminated against Emy Bonnici because of disability contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”).

2Emy Bonnici is a part-time grocery clerk who is employed by the respondent employer. He is also a member of the respondent union. For reasons that are unclear, Anton Bonnici filed the Application against Loblaws Inc. (the “employer”) on behalf of his brother, Emy Bonnici pursuant to section 34(5) of the Code, whereas, Emy Bonnici filed the Application against United Food and Commercial Workers, Local 1000A (the “union”) on his own behalf. Anton Bonnici is representing his brother Emy Bonnici with respect to both Applications. The Applications contain numerous wide-ranging allegations, many of which were not very well particularized in terms of providing details regarding exactly what Code violations were being alleged.

3By Case Assessment Direction (“CAD”) dated September 16, 2015, I directed that a preliminary hearing be held to address a number of issues relating to these Applications. Based on the parties’ submissions at the preliminary hearing and the materials filed with the Tribunal, I find that a number of allegations contained in the Applications must be dismissed either on the basis that they fall outside the Tribunal’s jurisdiction or on the basis that they stand no reasonable prospect of making out a violation of the Code. However, as detailed below, two allegations – one against each of the respondents – are not dismissed at this stage.

Procedural Background

4In addition to filing these two Applications, the applicants also have filed several grievances under the collective agreement applicable to Emy Bonnici. They have also filed a duty of fair representation complaint against the union at the Ontario Labour Relations Board (“OLRB”).

5Many of the allegations contained in the Applications appeared to allege violations of statutes other than the Code or violations of the collective agreement. As a result, I issued two CADs in an attempt to seek clarification from the applicants regarding exactly what violations of the Code the applicants intended to allege in their Applications. Based on the applicants’ responses to these CADs as well as my review of the Applications and the Replies filed by the applicants, I determined that it was appropriate to direct a preliminary hearing with respect to the two Applications.

6In my September 16, 2015 CAD, I listed what appeared to be the various allegations contained in the materials filed by the applicants. I listed the following allegations at para. 3 of the CAD:

a. that Loblaws Inc. breached the Minutes of Settlement entered into between Emy Bonnici, the union and the employer on October 16, 2013 by assigning Emy Bonnici work that exceeded his disability-related restrictions. I note that it is unclear whether the applicants are solely alleging a breach of the Minutes of Settlement or a subsequent breach of the Code by Loblaws Inc .

b. that UFCW 1000A failed to adequately represent Emy Bonnici in relation to the above situation by, for example, making misrepresentations, not following up on grievances etc.

c. that UFCW 1000A discriminated against Emy Bonnici by treating him differently due to his disability and failing to accommodate his cognitive disability by permitting his brother to act as his support person and/or agent in dealings with the union.

d. that Loblaws Inc. delayed paying Emy Bonnici for New Year’s day 2015 without providing him with an explanation for the delay.

e. that Loblaws discriminated against Emy Bonnici when his store Manager treated him differently – for example, by not replying to his correspondence and making him feel unwelcomed.

f. that Loblaws provided the applicant (and others) fewer hours than he was entitled to after his store’s conversion, scheduling him to work Sundays and/or with respect to other scheduling decisions identified in Anton Bonnici’s July 9, 2015 email response to my CAD.

g. that Loblaws failed to pay certain required compensation for statutory holidays

h. that Loblaws violated the Employment Standards Act by requiring part-time employees to work 12 shifts within the 30 days before a statutory holiday.

7In the September 16, 2015 CAD, I also set out the following four preliminary issues that would be addressed in the preliminary hearing:

1. whether any allegations against either or both respondents should be dismissed as outside the Tribunal’s jurisdiction

2. whether any allegations against either or both respondents should be dismissed as having no reasonable prospect of making out a violation of the Code.

3. if the Applications proceed before the Tribunal, in whole or in part, whether it is appropriate to defer consideration of these applications pending the outcome of any outstanding grievances.

4. if both Applications proceed before the Tribunal, in whole or in part, whether the Applications should be consolidated and/or heard together.

8At the hearing, I confirmed with the applicants that the list of allegations contained in the CAD represented a complete list of the allegations that they intended to make in their Applications. Anton Bonnici confirmed that the list was complete except for an additional allegation that the employer had failed to schedule his brother for shifts he was entitled to work. After some discussion, it was agreed that this allegation fell within the scope of the allegation set out at subpara. 6(f) above in regards to scheduling. With respect to the allegations set out in subpara. 6(a), Mr. Bonnici also confirmed that he was alleging that Loblaws assigned Emy Bonnici work that exceeded his disability-related restrictions both before and after the signing of the Minutes of Settlement entered into by between Emy Bonnici, the union and the employer on October 16, 2013.

Should any of the allegations be dismissed because they fall outside the Tribunal’s jurisdiction?

9As noted in my September 16, 2015 CAD, the Tribunal does not have jurisdiction (in other words, authority) to enforce any laws other than the Code. The Tribunal’s jurisdiction arises from the Code and it only has the jurisdiction that is set out in the Code. The Tribunal does not have jurisdiction, for example, to enforce protections found in the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”) the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (“LRA”) or any laws other than the Code. The Tribunal also does not have the jurisdiction to enforce any rights set out in the collective agreement that covers Emy Bonnici’s terms and conditions of employment.

10Several of the allegations contained in the Applications and listed in my September 16, 2015 CAD claimed violations of the collective agreement and/or laws other than the Code. At the hearing, Anton Bonnici acknowledged that the following allegations fell outside the Tribunal’s jurisdiction as they are allegations of a breach of the ESA and/or the collective agreement:

a. that Loblaws failed to pay certain required compensation for statutory holidays

b. that Loblaws violated the Employment Standards Act by requiring part-time employees to work 12 shifts within the 30 days before a statutory holiday.

11This acknowledgment was appropriate. Therefore, these allegations must be dismissed as outside the Tribunal’s jurisdiction.

12I also find that the applicants’ claim, set out in subpara. 6(a) above, that the employer breached the October 16, 2013 Minutes of Settlement falls outside the Tribunal’s jurisdiction because the Tribunal does not have the power to enforce Minutes of Settlement entered into in other forums. However, as discussed below, the Tribunal does have jurisdiction over any alleged assignment of work that exceeded Emy Bonnici’s disability-related restrictions following the date of the Minutes of Settlement.

13For the above reasons, the allegations contained in subpara. 6(g) and (h) above are dismissed. The allegations contained in subpara. 6(a) are dismissed in part only.

Should any of the allegations be dismissed on the basis that they stand no reasonable prospect of success?

Tribunal’s power to dismiss allegations that have no reasonable prospect of success

14It was clear from the outset of the preliminary hearing that Mr. Bonnici holds a very expansive view of the equality rights he believed were protected under the Code. He quoted from the equality rights clause contained in the Canadian Charter of Rights and Freedoms and also quoted from a statue outside the Law Society of Upper Canada which refers to all persons being equal before the law. While I agree with the principles contained within these quotes, as noted above, the Tribunal’s jurisdiction is limited to enforcing the anti-discrimination protections contained in the Code. The Tribunal has consistently held that it does not have jurisdiction over all instances of unfairness or all differential treatment. Its jurisdiction is specific to alleged discrimination based on the grounds protected under the Code.

15Under Rule 19A of the Tribunal’s Rules of Procedure (“Rules”), the Tribunal has the power to dismiss Applications, in whole in or in part, on the basis that they have no reasonable prospect of success under the Code.

16In determining whether an Application should be dismissed as having no reasonable prospect of success, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he or she experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary or the evidence is not disputed by the applicant.

17However, and significantly, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he or she was treated unfairly. The Tribunal must determine whether the applicant is able to point to any information which tends to support his or her belief that he or she has experienced discrimination within the meaning of the Code. The question that the Tribunal must decide is whether there is likely to be any evidence, or any evidence that may be reasonably available to the applicant to connect the unfair treatment allegedly experienced by the applicant with the Code’s protections.

18As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 (“Forde”), for an Application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show a breach of the Code.

19At the preliminary hearing, I asked Anton Bonnici to tell me what evidence the applicants would be in a position to advance at a full hearing on the merits to support the various allegations contained in the Applications and listed in my September 16, 2015 CAD. In particular, I asked him to focus on what evidence the applicants intended to advance at a full hearing in order to support a link between the respondents’ alleged conduct and Emy Bonnici’s disability(ies). In other words, I asked Mr. Bonnici what evidence the applicants intended to advance to show that the respondents’ conduct was carried out, at least in part, because of Emy Bonnici’s disability(ies).

Allegations that are dismissed

20Based on the information provided by the applicants, the following allegations from para. 6 above must be dismissed on the grounds that they have no reasonable prospect of success under the Code:

a. that UFCW 1000A failed to adequately represent Emy Bonnici in relation to the above situation [that is, the situation described in subpara. 6(a)] by, for example, making misrepresentations, not following up on grievances etc.

b. that Loblaws Inc. delayed paying Emy Bonnici for New Year’s day 2015 without providing him with an explanation for the delay.

c. that Loblaws discriminated against Emy Bonnici when his store Manager treated him differently – for example, by not replying to his correspondence and making him feel unwelcomed.

d. that Loblaws provided the applicant (and others) fewer hours than he was entitled to after his store’s conversion, scheduling him to work Sundays and/or with respect to other scheduling decisions identified in Anton Bonnici’s July 9, 2015 email response to my CAD.

21With respect to the allegation set out in subpara. 6(b), Anton Bonnici stated that the applicants felt like the union was not doing enough to support Emy Bonnici in his claims against his employer. The applicants did not allege that the union was not providing enough assistance to them because of Emy Bonnici’s disability. Their claim was in essence the same claim they made against the union in the duty of fair representation complaint they filed with the OLRB. The applicants’ claim is that the union did not provide Emy Bonnici with enough support and assistance in general and in following up on grievances. They also allege that the union did not live up to its Code of Conduct. The Tribunal has consistently held that it is not discrimination for a union to decide not to file or pursue a grievance, unless the reason for doing so was based on one of the grounds in the Code. See, for example, Traversy v. Mississauga Professional Firefighters’ Association, 2009 HRTO 996. Therefore, the allegation set out in subpara. 6(b) must be dismissed on the basis that it has no reasonable prospect of success.

22With respect to the allegation in subpara. 6(d), Anton Bonnici stated that the employer had not paid his brother for New Year’s Day in 2015, and possibly also in 2014 until he contacted the payroll office in Winnipeg. Mr. Bonnici stated that the issue would not have been sorted out if he had not advocated for his brother. When I asked Mr. Bonnici whether he was alleging that his brother’s disability was a factor in why he was not paid, he said he did not know why he was not paid but that another employee did get paid for the shift(s) in question. Even if I accept all of the facts relating to this allegation as they have been put forward by the applicants, the allegation has no reasonable prospect of success in terms of making out discrimination under the Code. At most, the applicants are alleging unfairness in relation to the failure to pay Emy Bonnici for the News Year’s Day shift(s). However, they did not provide information from which it could be inferred that this failure to pay Emy Bonnici was related to his disability.

23With respect to the allegation in subpara. 6(e), Anton Bonnici stated that he suspected that the source of the problem with the employer was the manager of the story where Emy Bonnici works. He alleged that since this individual became store manager, his brother has only been permitted to work in certain areas of the store. He also stated his belief that the store manager takes advantage of his brother’s good nature and gets upset with his brother if he takes it upon himself to do work that he has not been assigned to do. Even if I accept all of the facts relating to these allegations as they have been put forward by the applicants, the allegations have no reasonable prospect of success in terms of making out discrimination under the Code. At most, the applicants are alleging unfairness in relation to the manner in which the store manager treats Emy Bonnici. They have not provided information from which it could be inferred that the store manager is treating the applicant differently, even in part, because of his disability.

24With respect to the allegation in subpara. 6(f), Anton Bonnici stated that the employer provided the applicant and other part-time employees fewer hours following their store’s conversion from one collective agreement to another. He also alleged that his brother was not being paid for all of his shifts and that he was being scheduled to work Sundays when he should not be.

25The issue of the treatment of part-time employees, as compared to full-time employees, following the store’s conversion was the subject of a policy grievance filed by the union on behalf of all part-time employees. Mr. Bonnici stated that the employer has too many employees and that part-time workers are not being treated as well as full-time employees. At most, any differential treatment with respect to the store conversion is based on part-time vs. full-time status and not based on disability or any ground protected under the Code.

26When I asked Mr. Bonnici what evidence the applicants intended to bring to connect the other scheduling and pay issues he raised amounted to a violation of the Code, he said he had all of his brother’s pay slips. When I asked what evidence he would be able to rely upon to link any scheduling or payment problems to his brother’s disability, he reiterated that he would rely on the pay slips. Based on the information provided at the hearing, I find that the scheduling and payment allegations set out in subpara. 6(f) must be dismissed as having no reasonable prospect of success in terms of making out a violation of the Code. At most, the applicants are alleging unfairness in relation to these scheduling and payment matters. However, they failed to provide sufficient information from which it could be inferred that these scheduling and pay issues occurred, even in part, because of Emy Bonnici’s disability.

Allegations that will proceed to a full hearing on the merits

Portion of allegations in Subpara. 6(a)

27I find that it is not appropriate to dismiss, at this stage, the portion of the allegations contained in subpara. 6(a) relating to the employer’s alleged assignment of work that exceeded Emy Bonnici’s disability-related restrictions subsequent to the October 16, 2013 Minutes of Settlement.

28I find that any allegations relating to the assignment of work that exceeded Emy Bonnici’s disability-related restrictions prior to the October 16, 2013 Minutes of Settlement were resolved by those Minutes of Settlement which were signed by the applicant. In my view, it would be an abuse of process to permit the applicants to relitigate those allegations again. For the Tribunal’s approach to attempts to relitigate allegations that have been the subject of a settlement see, for example, Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655 and Nolan v. Royal Ottawa Health Care Group, 2014 HRTO 1604.

29However, in my view, the applicant’s allegation that the employer continued to assign Emy Bonnici work that exceeded his disability-related restrictions following the October 16, 2013 Minutes of Settlement is one over which this Tribunal has jurisdiction and one that should proceed to a full hearing on the merits.

30The preliminary hearing did not involve the calling of evidence. It was focused on determining which allegations should be dismissed on jurisdictional grounds or on the basis that they stand no reasonable prospect of success under the Code. In order to address the allegation that the employer assigned Emy Bonnici work that exceeded his disability-related restrictions following the October 16, 2013 Minutes of Settlement, and the employer’s refutation of it, a hearing on the merits must be held in which the parties call actual evidence in relation to this allegation. In order to proceed with this allegation, it will be necessary for the applicants to provide particulars of the exact times and circumstances in which they allege that the employer assigned Emy Bonnici work that exceeded his disability-related work restrictions. I provide directions for the provision of these particulars at the end of this Interim Decision.

Allegations in subpara. 6(c)

31Likewise, I find that it is not appropriate to dismiss the allegation contained in subpara. 6(c) regarding the union’s alleged failure to accommodate Emy Bonnici’s alleged cognitive disability by permitting his brother to act as his support person and/or agent in dealings with the union. At the preliminary hearing, I asked Mr. Bonnici to specify the instances when the union refused to permit him to act as his brother’s support person and/or advocate. He referred to two instances. First, he referred to the union’s position that Anton Bonnici should not be permitted to represent his brother in regards to his duty of fair representation complaint. Second, Anton Bonnici referred to his not being permitted to take part in a meeting held between the union and the employer in January 2014. In addition to these two instances, he stated that the union has never responded to any of the correspondence he has sent on behalf of his brother. From this lack of response, he believed that the union has refused to permit him to act as a support person/agent for his brother. At the hearing, counsel for the union asserted that the union accepts that Anton Bonnici may act as his brother’s support person/agent. The union denied ever refusing to permit Anton Bonnici to act as his brother’s support person/agent.

32A noted above, the preliminary hearing did not involve the calling of evidence. In order to address the allegation in subpara. 6(c), and the union’s refutation of it, a hearing on the merits must be held in which the parties call actual evidence in relation to the allegation.

Deferral

33The employer took the position that, in the event that any allegations were not dismissed after the preliminary hearing, the Tribunal should defer consideration of these allegations until the completion of ongoing grievances filed by the union. The employer also made a general submission that grievance arbitration is the more appropriate forum for the applicant’s allegations.

34With respect to the employer’s general submission that arbitration is a more appropriate forum for the applicants’ allegations, I cannot accept this submission. The Tribunal and the courts have found that the Tribunal has concurrent jurisdiction with arbitrators over discrimination claims made by unionized employees: Ford Motor Co. v. Ontario (Human Rights Commission) (2001), 2001 CanLII 21234 (ON CA), 209 D.L.R (4th) 465 (Ont. C.A.).

35The Tribunal does have a general practice of deferring consideration of Applications if they overlap with ongoing grievances. However, that is only the case if there is an overlap between an application and an ongoing grievance. Based on information provided by the union, it is evident that none of the grievances filed on behalf of the applicant remain ongoing.

36More specifically, there is no outstanding grievance relating to the employer’s alleged assignment of work to Emy Bonnici that exceeded his disability-related work restrictions following the October 16, 2013 Minutes of Settlement. Therefore, it is not appropriate to defer consideration of this sole allegation against the employer that will proceed to a hearing on the merits.

37As for the allegation that the union discriminated against Emy Bonnici by failing to permit his brother to act as his support person/agent, there appears to be no ongoing proceeding in relation to this allegation. Although the applicants raised this allegation in their duty of fair representation complaint against the union, that complaint does not appear to be ongoing at this point. Therefore, I find that it is not appropriate to defer consideration of this sole allegation against the union that will proceed to a hearing on the merits.

Consolidation

38The applicants requested that the Tribunal consolidate the two applications and hear them together. The respondents both opposed this request. In light of the fact that only two allegations will proceed to a hearing on the merits, I do not consider it appropriate to consolidate the Applications or to hear them together, as there is no factual or legal overlap between the two allegations that will proceed to a hearing.

Order and directions regarding next steps

39For the reasons set out above, all of the allegations set out in the Applications are dismissed except for the following:

a. The allegation set out in subpara. 6(a) that the employer discriminated against Emy Bonnici by assigning him work that exceeded his disability-related restrictions following the October 16, 2013 Minutes of Settlement.

b. The allegation set out in subpara. 6(c) that the union discriminated against Emy Bonnici by failing to accommodate Emy Bonnici’s alleged cognitive disability by permitting his brother to act as his support person and/or agent in dealings with the union.

40The employer’s request to defer consideration of the Application is denied.

41The applicants’ request to consolidate the two Applications and hear them together is denied.

42The applicants are directed to provide details regarding their allegation that the employer assigned Emy Bonnici work that exceeded his disability-related work restrictions between October 16, 2013 and the date on which the Application against the employer was filed. They must file with the Tribunal, and copy to the employer, a detailed list of the dates and times when the employer assigned work to Emy Bonnici that exceeded his disability-related work restrictions. The applicants are not permitted to file any further materials at this time other than a summary of the precise dates/times/shifts in which they allege that the employer assigned Emy Bonnici work that exceeded his disability-related work restrictions. The applicants must file this summary no later than January 8, 2016. If the applicants are unable to provide details regarding their allegation that the employer assigned Emy Bonnici work that exceeded his disability-related work restrictions following the October 16, 2013 Minutes of Settlement, the Tribunal may seek submissions from the parties as to whether this allegation should be dismissed on the basis that it has no reasonable prospect of success under the Code.

43If and when the applicants file their summary of the dates/times/shifts in which they allege that the employer assigned Emy Bonnici work that exceeded his disability-related work restrictions, the Tribunal will provide further directions for the filing of a substantive Response by the employer.

44The Registrar will schedule a one day merits hearing into the sole allegation in Application 2014-18539-I against the union that has not been dismissed (that is, the allegation contained in subpara. 39(b) above.)

45The hearing into the sole allegation in Application 2015-19906-I against the employer that has not been dismissed (that is, the allegation contained in subpara. 39(a) above) will be only be scheduled once sufficient particulars/details are provided by the applicants regarding this allegation.