HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jean Binette
Applicant
-and-
Unifor (formerly Canadian Auto Workers) Local 4270 and R.A. Centre
Respondents
INTERIM DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Binette v. Unifor (formerly Canadian Auto Workers) Local 4270
APPEARANCES
Jean Binette, Applicant
Elizabeth Heenan, Representative
Unifor (formerly Canadian Auto Workers) Local 4270, Respondent
Mike Armstrong, Representative
R.A. Centre, Respondent
Andrew Lister, Counsel
Introduction
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that both respondents discriminated against him with respect to employment because of his disability, and that the R.A. Centre (the “corporate respondent”) failed to properly address his complaint that a co-worker had subjected him to sexual gestures.
2The purpose of this Decision is to decide whether the Application against Unifor (formerly Canadian Auto Workers) Local 4270 (the “union respondent”) should be dismissed on a preliminary basis because it is has no reasonable prospect of success. The parties attended a summary hearing where they had the opportunity to make oral submissions and present documents and cases, which addressed this issue. I have decided to dismiss the Application against the union respondent. The following are my reasons.
BACKGROUND
3The applicant was employed as a maintenance worker by the corporate respondent, and was a member of the union respondent. In November 2012, he was injured in the workplace when he fell backwards and hit his head and injured his shoulder. He went off work, and did not return until January 2013.
4Following the applicant’s return to work, the corporate respondent received complaints from his co-workers about his behaviour. In March 2013, the corporate respondent placed him on a non-disciplinary, paid leave pending an investigation into the complaints.
5In April 2013, the corporate respondent sent the applicant a letter, which indicated that it had completed its investigation and found that he had behaved inappropriately in the workplace. The letter also informed him that he would not be able to return to work until his doctor answered a number of questions, including whether his behaviour was related to a medical condition, and if so, how his needs could be accommodated in a return to work process.
6In June 2013, the applicant’s doctor sent the corporate respondent a letter, which indicated that he had been unable to fully assess the applicant, that the applicant denied the claims that had been made against him, and that a consultation with a therapist was not feasible because of financial considerations.
7In December 2013, the corporate respondent sent the applicant a letter, which stated that if it did not receive a response from his doctor to its questions by January 17, 2014, it would conclude that he was unable to perform his job duties, and terminate his employment.
8The corporate respondent did not receive a response from the applicant’s doctor by January 17, 2014. On January 24, 2014, it sent the applicant a letter, which confirmed that his employment had ended.
9The applicant never asked the union respondent to file a grievance on his behalf with respect to how the corporate respondent treated him.
10On January 29, 2014, the applicant filed an Application with this Tribunal. I understand his allegation of discrimination against the union respondent to be the following. The corporate respondent failed to accommodate his disability-related needs after his return to work, manufactured incidents about his behaviour, suspended him based on these manufactured incidents, and fired him. The union respondent knew that he had a head injury, but turned a blind eye and was complacent in response to the corporate respondent’s discriminatory actions against him. As a result, the union respondent contributed to the discrimination.
11On February 28, 2014, the Tribunal issued a Case Assessment Direction, which directed that a summary hearing be held to address whether the Application against the union respondent should be dismissed on the basis that it has no reasonable prospect of success.
12The summary hearing took place on November 10, 2014. I heard the parties’ oral submissions and reserved my Decision.
ANALYSIS
13Rule 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 (“Dabic”) 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.
14The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17.
15The 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
16The focus at the summary hearing was on the second branch of the Dabic test, namely, whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that the union respondent discriminated against him with respect to employment because of his disability.
17In his submissions, the applicant stated that his Application against the union respondent has a reasonable prospect of success because whenever he complained to the union respondent that the corporate respondent was not accommodating his disability-related needs or was harassing him, the union respondent told him not to make waves, and did not take any action. He also stated that he never asked the union respondent to file a grievance on his behalf because he had given up on expecting the union respondent to act on his behalf.
18In my view, the Application against the union respondent does not have a reasonable prospect of success. The applicant’s factual allegations about the union respondent’s failure to act on his behalf in response to the corporate respondent’s actions are general and lacking in details, and he never asked the union respondent to file a grievance on his behalf. More importantly, however, beyond making a bald assertion, he pointed to very little evidence that he has or that is reasonably available to him that can show that the union respondent’s failure to act on his behalf was linked to his disability.
19The Application against the union respondent is therefore dismissed as having no reasonable prospect of success. The title of proceeding shall be amended accordingly.
20In view of the fact that the applicant failed to attend a scheduled mediation with the corporate respondent, and the latter is not willing to attend a rescheduled mediation, the Application against the corporate respondent will proceed to a two-day merits hearing.
21The union is no longer a party to the proceeding. If it wants to intervene, it shall file a Notice of Intervention by Bargaining Agent (Form 28).
ORDER
22The Tribunal makes the following orders and directions:
The Application against the union respondent is dismissed.
The Application against the corporate respondent will proceed to a two-day merits hearing.
If the union wants to intervene in the proceeding, it shall file a Notice of Intervention by Bargaining Agent (Form 28).
Dated at Toronto, this 24th day of April, 2015.
“Signed by”
Ken Bhattacharjee
Vice-chair