Wilk v. St. Stanislaus – St. Casimir’s Polish Credit Union, 2015 HRTO 61

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Krystyna Wilk Applicant

-and-

St. Stanislaus – St. Casimir’s Polish Credit Union and Andrzej Pitek Respondents

DECISION

Adjudicator: Naomi Overend Date: January 15, 2015 Citation: 2015 HRTO 61 Indexed as: Wilk v. St. Stanislaus – St. Casimir’s Polish Credit Union

APPEARANCES

Krystyna Wilk, Applicant Self-represented

St. Stanislaus – St. Casimir’s Polish Credit Union and Andzrej Pitak, Respondents Ryan Hanna, Counsel

INTRODUCTION

1This Application alleges that the applicant was reprised against in employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Tribunal sent a Notice of Intent to Dismiss on the basis that the Application appeared not to be within the Tribunal’s jurisdiction. In her submissions in response to that Notice, the applicant alleged that she had also experienced discrimination on the basis of age.

2By Case Assessment Direction dated September 5, 2014, the Tribunal noted that it would schedule a summary hearing to address whether the allegations in the Application, if true, might reasonably amount to a Code violation.

3The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure 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, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

4The 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. In some cases, for example, the applicant will not dispute the respondent’s version of one or more of the facts.

5Having set out the basic framework for determining whether an application should be dismissed in whole or in part for no reasonable prospect of success, I now turn to the facts of this particular case.

FACTUAL BACKGROUND

6The parties both prepared written submissions in advance of the summary hearing. They also made oral submissions at the summary hearing. These submissions were helpful in clarifying the nature of the allegations.

7In her detailed written submissions, the applicant outlines the difficulties she had with the respondent credit union commencing with her active involvement in the negotiations in September through December 2012 for the Collective Agreement between the credit union and the CAW-Canada and its Local 252 (now Unifor Local 252, hereinafter “Local 252”). Local 252 represents the employees of the respondent credit union. The applicant was, at the time, Chairperson of Local 252, as well as an employee of the credit union.

8Shortly after the Collective Agreement was negotiated, the applicant received notice that the branch she was working at would be closing. She asserts that the company and Local 252 interpreted the bumping provisions in the Collective Agreement in a manner that was unfair to her. Moreover, in June and August 2013, she received notice from Local 252 that several employees had signed petitions against her, complaining of her behaviour as Chairperson. Finally, in November 2013, the applicant attended a mediation with respect to a grievance (or grievances) she had filed, and as a result of the settlement, her employment was terminated.

9Many of the applicant’s allegations are directed at the leadership of Local 252, which is not named as a party to her Application. It is unnecessary to deal with these, although I would note parenthetically that they appear to be unconnected to any Code ground. Moreover, the allegations vis-à-vis the petitions appear, on the face of the applicant’s submissions, to relate to her position as Chairperson of Local 252, rather than in her capacity of employee and also cannot be considered.

10The applicant’s allegations with respect to the respondents’ treatment of her – namely the unfair interpretation of the bumping provisions and her ultimate termination – do not appear to be reprisal or age discrimination. With respect to the allegation of reprisal, section 8 of the Code states:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal.

11To successfully make out a claim of reprisal, the applicant must demonstrate that she experienced reprisal for:

• claiming or enforcing a right under the Code;
• instituting or participating in proceedings under the Code:, or
• refusing to infringe the right of another person.

12However, the applicant’s narrative of events (both in her written and oral submissions) makes it clear that, while she was claiming or enforcing a right under the Collective Agreement, she was not doing so with respect to a right under the Code.

13Other than baldly stating in her written submissions that age was a factor in her treatment, the applicant fails to specify on what basis she thought that was so. At the summary hearing, I asked her to describe what evidence she might lead to demonstrate a link to the prohibited ground under the Code. The applicant responded by stating that she was the oldest employee amongst those affected by the layoff, and that the credit union has since hired many younger workers. The mere fact that one has a characteristic protected by the Code, does not establish that there is a link between that characteristic and the treatment.

14I then asked the applicant to explain why she thought that the respondents may have not wanted older workers. She said that older workers may, for example, require more time off work for medical appointments, may have greater joint pain and require special chairs. The difficulty for the applicant is that she said these were not issues for her. Indeed, she was not able to point to any age-related characteristic she had that may have been viewed in a negative fashion by the respondents. In any event, she was able to point to no evidence that the respondents, in fact, held these views.

15The applicant states that her seniority was not properly taken into consideration. However, there was no link between the applicant’s age and her apparent seniority. The applicant provided one document that showed that many of the employees affected by the branch closure had greater or equivalent seniority to the applicant, even though they were apparently younger.

16On their face, the applicant’s allegations suggest she was singled out because of her involvement with Local 252; not because she was close to retirement age. Indeed, her only mention of the CEO of the credit union, who she names as an individual respondent, relates to her “putting him on the hot seat” with she questioned his “ethics” during the collective bargaining process.

17In summary, the applicant has not alleged any act that would constitute differential treatment on the basis of age, nor do her allegations constitute reprisal under the Code. Accordingly, this Application is dismissed as against both respondents on the basis that it has no reasonable prospect of success.