HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Joan Holmes
Applicant
-and-
City of Toronto and CUPE Local 79
Respondents
INTERIM DECISION
Adjudicator: David Muir Date: June 9, 2015 Citation: 2015 HRTO 762 Indexed As: Holmes v. Toronto (City)
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment because of disability.
2In a Case Assessment Direction ("CAD") issued April 29, 2015, the Tribunal noted that having reviewed the Application it appeared that the applicant was against certain named respondents: CUPE Local 79, David Kidd and Tim Maguire (the CUPE respondents), may be outside the Tribunal's jurisdiction to decide. The applicant was directed to deliver and file submissions explaining how there were allegations against the CUPE respondents which engaged the Code.
3The applicant provided submissions in response to the CAD. In her submissions the applicant argues that the CUPE respondents should be held accountable for their inadequate representation of her.
4Under the Tribunal's jurisprudence, an Application will only be dismissed at this preliminary stage if it is "plain and obvious" on the face of the Application that it does not fall within its jurisdiction. See, for example, Masood v. Bruce Power, 2008 HRTO 381; Belcastro v. Metrolinx Go Transit, 2012 HRTO 2121.
5In my view it is plain and obvious that the Application makes no allegations of discrimination protected by the Code, by the CUPE respondents. In her Application the applicant alleges discrimination in employment on the basis of disability. There are no allegations of any actions or inactions of the CUPE respondents which weren't informed in any way by the fact that the applicant may have been a person with a disability. Indeed there do not appear to be any allegations at all against any of the CUPE respondents.
6At the end of the day the applicant's complaints about the CUPE respondents are general bald assertions that they gave her false hope which was later dashed. At their highest the applicant's complaint may be that she received inadequate representation from the CUPE respondents. As the Tribunal pointed out in its CAD in Traversy v. Mississauga Firefighters' Association, 2009 HRTO 996, the Tribunal stated as follows at para. 33:
Assuming that the Code also applies to this aspect of a union's relationship with the employees it represents, a claim that the union violates the Code must be based on an assertion of differential treatment, and not simply a failure to act. 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.
7For these reasons the Application as it relates to the CUPE respondents is dismissed because it is plain and obvious that the applicant's complaints about the CUPE respondents do not constitute discrimination under the Code.
Dated at Toronto, this 09th day of June, 2015.
"Signed By"
David Muir Vice-chair
CORRECTION
The Tribunal acknowledges the request of the City of Toronto that the Tribunal's records be corrected to remove two of its employees listed as respondents who were not identified as respondents in the Application.
Similarly, due to administrative error, the Tribunal had listed two officials of the Canadian Union of Public Employees as respondents who were not identified as individual respondents in the Application.
The Tribunal has corrected its records and the title page for this Interim Decision (2015 HRTO 762).
The Tribunal regrets these errors.
Dated at Toronto, this 11th day of August, 2015.
"Signed By"
David Muir Vice-chair