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 Finlayson
Respondents
INTERIM DECISION
Adjudicator: Michelle Flaherty
Date: June 30, 2015
Citation: 2015 HRTO 872
Indexed as: Thomas v. IATSE Local 461
APPEARANCES
Rose Marie Thomas, Applicant ) self-represented
Domenic Marcone, Personal Respondent ) self-represented
William Talbot, Margaret Molokach, ) Ron Lebi and Katherine Ferreira, Douglas Ledingham, David Edwards, ) Counsel and Archie MacKenzie )
Shaw Festival Foundation and ) Julie O’Donnell and Stephanie Brown, Don Finlayson ) Counsel
INTRODUCTION
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination and harassment because of disability and sex. The Application also alleges reprisal or threat of reprisal.
2The applicant alleges discrimination in employment and in respect of her membership in a vocational association. More specifically, she states that Domenic Marcone sexually harassed her at work. She states that the remaining 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also alleges that the respondents reprised against her and that, among other things, her membership in the Union was revoked in retaliation for the complaints she made. The respondents deny all of these allegations.
3The Tribunal has held 16 days of hearing. The applicant is the only witness who has testified to date: she provided extensive evidence about her allegations, she was cross-examined, and she provided additional evidence in re-direct. At the conclusion of the Applicant’s evidence, I invited submissions as to whether Application should be dismissed (in whole or in part) because there was no reasonable prospect it would succeed. In Case Assessment Directions (“CADs”), I provided detailed instructions to the parties concerning the procedure and the applicable legal test: CADs dated April 20, 2015 and April 27, 2015.
4The parties provided submissions on the reasonable prospect of success issue during a full-day telephone conference on May 4, 2015.
5For the reasons that follow, the Application is dismissed in part. I find 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 Finlayson (the “Employer Respondents”) have no reasonable prospect of success.
6The Application may proceed against the personal respondent, Domenic Marcone. At this stage of the proceeding, I make no findings as to the merits of the allegations against Mr. Marcone. I note that Mr. Marcone denies the allegations against him. However, as Mr. Marcone has yet to give evidence or be cross-examined, I cannot determine whether the allegations against him have any reasonable prospect of success.
SUMMARY OF THE ALLEGATIONS
7The Application contains detailed and wide-ranging allegations. At the outset of the telephone conference on May 4th, I summarized the applicant’s allegations as follows:
a. The Employer and Union respondents discriminated against her on the basis of disability because they failed to reasonably enforce a workplace smoking policy (March 2007)
b. The Employer and Union respondents reprised against the applicant because she attempted to assert a right to work in a smoke-free environment.
c. Mr. Marcone sexually harassed the applicant.
d. The Union Respondents knew or ought reasonably to have known about this harassment, but failed to take appropriate steps to protect the Applicant from further harassment.
e. The Employer respondents knew or ought reasonably to have known about the sexual harassment, but failed to take appropriate steps to protect the applicant from further harassment.
f. The Employer Respondents and the Union Respondents reprised against the applicant because she alleged that she had been sexually harassed.
8I invited all parties to comment on, add to or correct this summary of the allegations. The parties accepted the above summary.
THE CREDIBILITY OF THE WITNESS
9At this stage of the proceeding, the Tribunal has heard only the applicant’s evidence. Based on the pleadings, the witness statements, and the questions they posed, it is clear that the respondents vigorously dispute many of the facts alleged by the applicant.
10In some circumstances, it is appropriate to assess the credibility of a witness before determining whether the Application has a reasonable prospect of success: Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777 (“Pellerin”) at 35. In this case, however, it is not necessary for me to do so. Even based on the facts alleged by the applicant, I find that there is no reasonable prospect that most of the applicant’s allegations will succeed.
THE FACTS
11The Shaw Festival Foundation (the “Shaw” or “Employer”) presents theatrical productions at four theatres located in Niagara-on-the-Lake. The applicant worked seasonally for the Shaw from 2005 to 2008. She worked primarily as a wardrobe assistant or supervisor, although she also took on other shifts (also referred to as “calls”) as a stagehand.
12During the material times, the applicant was a member of IATSE, Local 416 (“Union” or “Local 461”). Pursuant to the Collective Agreement between the Shaw and the Union, the Union operates a hiring call or referral system. In essence, the Shaw contacts the Union when it has an employment opportunity. The Union then refers a production worker (typically one of its members) for that opportunity. The Union decides which member will be referred based on factors such as the nature of the work required by the Shaw and the member’s availability, seniority, and qualifications.
13In 2005, the applicant was a member of different Local of IATSE (Local 822). She learned of an employment opportunity with the Shaw and she applied for membership in Local 461. In August 2005, the applicant became a member of Local 461 and began working for the Shaw.
Smoking
14The applicant states that she has asthma, which is exacerbated by second hand smoke. The applicant says that some of her coworkers smoked in and around the workplace. She testified that, as early as 2006, she raised concerns with the Union about smoking and its impact on her asthma. The issues were not resolved at that time.
15The applicant states that she complained about coworkers’ smoking during a stagehand call in March 2007. She advised Archie MacKenzie that Mr. Marcone and others were smoking in the area where she was working. As I will explain in more detail shortly, the applicant also mentioned to Mr. MacKenzie that her bum had been pinched or grabbed. Mr. MacKenzie is a member of Local 461. Although he was working in a supervisory capacity, he was not a member of Shaw management.
16Andrew Mestern, then technical director and a member of Shaw management, became aware of the applicant’s concerns. Mr. Mestern documented the incident in an email dated March 26, 2007. (This email, which was placed in the applicant’s personnel file, is also referred to in para. 30.)
17The applicant acknowledged that Shaw had a smoking policy in place at the time. She also acknowledged that, after he became aware of her concerns, Mr. Mestern advised workers that no smoking was permitted within a certain distance of the entrances.
18The applicant states that, notwithstanding this, smoking in and around the workplace persisted. She states that she repeatedly raised the issue with Mr. MacKenzie and with the Union business agent. She did not, however, raise the issue again with the Shaw until June 12, 2008.
19On June 12, 2008, the applicant wrote to Diane Gibbs, a member of the Shaw’s human resources team. In the letter, the applicant complains about smoking in the workplace and about Mr. MacKenzie, in particular. The June 12 letter does not contain any allegations of sexual harassment.
20The applicant acknowledged that the Shaw took her concerns about smoking seriously. Ms. Gibbs met with the Applicant the day after she received the applicant’s letter. The applicant acknowledges that the Shaw took some steps to address the situation following the meeting, including removing some smoking receptacles near entrances and reminding managers to enforce the policy.
21The applicant raised the issue of smoking again when she met with Mr. Finlayson in September 2008 to request a leave of absence. Although she raised the issue in September 2008, it is not clear that the applicant identified any new incidents of smoking at that time. In her September 2008 meeting with Mr. Finlayson, she did not ask the Shaw to take any further measures to address smoking.
Allegations of sexual harassment
22The applicant testified that her coworkers were overwhelmingly male, particularly when she was doing stagehand calls. She alleges that she has experienced harassment by coworkers on a number of occasions: they made sexually inappropriate jokes and comments, used profane language, and made other disparaging remarks. The applicant argued that there is systemic discrimination in the workplace and sought to testify about these other alleged incidents of sexual harassment. The applicant acknowledged, however, that these broader allegations were not explicit in the Application. She says they are “implied”.
23I am not satisfied that these additional allegations are contained in the Application. As I explain below, the applicant had an opportunity to amend the Application. She was also asked to clarify the scope and nature of her allegations. The allegation of systemic discrimination was raised for the first time in cross-examination. In my view, these allegations are not properly before the Tribunal and it is not necessary for me to address them.
24The applicant testified that she was sexually harassed by Mr. Marcone in 2005. She stated that harassment resumed in March 2007, when Mr. Marcone invited her out for dinner and told her that she was pretty. Although she explained to him that she was not interested, Mr. Marcone’s behaviour persisted. The applicant stated that Mr. Marcone made sexual comments; looked at her in a way that made her feel uncomfortable; touched her; and treated her in a condescending fashion.
25The applicant testified that she raised this issue with Mr. MacKenzie during a stagehand call in March 2007. She told him that she did not want her “ass grabbed”. As noted, Mr. Mestern also became aware of the applicant’s comment. At that time, however, the Applicant did not provide particulars or identify Mr. Marcone as the alleged harassor. Mr. Mestern noted (and the applicant acknowledges) that she was advised she could make a harassment complaint and was given some options in this regard.
26The applicant first identified Mr. Marcone as the alleged harassor on April 8, 2007, in a call to the Union’s business agent. The business agent advised the applicant that she could raise the issue with human resources at the Shaw. The business agent also offered to speak to Mr. Marcone himself. The applicant testified that she was content to have the business agent speak to Mr. Marcone and did not (at that time) pursue the matter through a grievance, with human resources, or with Shaw management.
27According to the applicant, a further incident of harassment occurred almost a year later, in May or June of 2008. She states that she was uncomfortable with the way Mr. Marcone looked at her, that he followed her to her car, and spoke to her. The applicant raised this incident with the business agent and, again, he offered to speak to Mr. Marcone. Again, the applicant opted not to pursue her allegations through a grievance, with human resources, or with Shaw management.
28The applicant does not identify any further incidents of alleged harassment. She states that Mr. Marcone spoke to her again in September or August, 2008, but she testified that she did not consider his comments at that time to be harassing.
29The applicant met with Mr. Finlayson in September 2008 and raised allegations of sexual harassment. As discussed in more detail, below, she did this as part of her request to be excused from completing her remaining shifts with the Shaw. While she described to Mr. Finlayson the incidents set out above, she raised no additional allegations of sexual harassment. The applicant acknowledged that, when she met with Mr. Finlayson in September 2008, she asked the Shaw not to investigate her allegations.
Personnel File and Subsequent Meeting
30In September 2008, the applicant requested and was granted access to her personnel file. The applicant took issue with two letters contained in the file. The first is dated March 26, 2007 and it raises issues about the applicant’s work abilities. The second, also dated March 26, 2007, contains the technical director’s summary of the issues the applicant raised during a stagehand call in March 2007 (see para. 16, above).
31The Union arranged a meeting with Mr. Finlayson to discuss the fact that these two letters were in the applicant’s personnel file. That meeting, which took place on September 14 or 15, 2008, is described below (beginning at para. 34).
Prior Claim
32The Union has developed a system that allows members to establish a “prior claim” on a seasonal call. A seasonal call is a full or part-time position that a Union member holds with the Shaw for a full season. An employee who holds a seasonal call has a right of first refusal if the same call becomes available the following season. In certain circumstances, however, a prior claim will not attach to a seasonal call. 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.
33In 2008, the applicant held a part-time seasonal call as a lunch-time supervisor/wardrobe attendant. The position had previously been held by another member, but it was unclear whether that member held a prior claim. In any event, the applicant states that the Union reprised against her because the prior claim should have attached to the applicant’s 2008 seasonal call.
Request to be Excused from Remaining Shifts
34On September 14 or 15 2008, the applicant and the Union business agent met with Don Finlayson of the Shaw. The applicant asked Mr. Finlayson to excuse her from the last two weeks of her seasonal call. She explained that her request was based at least in part on wanting to avoid loading out the theatres, which she thought could bring her into contact with Mr. Marcone.
35By mid-September 2008, the Applicant had secured work in Toronto. Before approaching Mr. Finlayson (and before raising allegations about smoking and sexual harassment with him), she had attempted to make other arrangements to take time off from the Shaw so that she could work in Toronto. In direct examination, she referred to her discussion with Mr. Finlayson as an attempt to “barter”. In notes she took at the time, the applicant writes that she proposed the leave to Mr. Finlayson as “a solution to the harassment situation”.
36When they met in September 2008, the Union’s business agent and Mr. Finlayson proposed a number of options to the applicant, including pursuing the allegation of sexual harassment. Ultimately, however, the Shaw agreed to the Applicant’s request and she was excused from working certain shifts.
37There is a dispute between the parties as to whether the applicant was excused from working a scheduled call on September 30, 2008. The Shaw issued a written warning to her for that missed shift. A grievance was filed, but it was not pursued to arbitration.
38There is a further dispute as to whether the applicant ought to have been scheduled for a shift on October 2, 2008. The Applicant was paid for the shift in question. Again, the matter was grieved, but it was not pursued to arbitration.
Status with the Union
39According to the Union Constitution, applications for membership are voted on by existing members of the Union. The Constitution states that applicants may not be present at meetings when their membership is proposed or voted on.
40According to the Constitution, Union membership has two stages. When they are first voted into the Union, members have junior or apprentice status. Section 6 of the Constitution requires that junior members pass a trades test before being admitted to full membership. The Constitution also imposes other restrictions and obligations on junior members. For example, junior members may not work outside Local 461’s jurisdiction unless they obtain prior authorization from the business agent.
41There is a dispute about the applicant's status within the Union. The applicant states that she was admitted as a senior member when she joined the Union in 2005. The Union Respondents’ position is that she was a junior member. The applicant took the trades test in 2006, shortly after she joined Local 461. She did not receive a passing grade. The applicant submits that she took the test “out of interest,” not because it was a requirement for membership.
42When cross-examined about why she felt she was a senior member (and exempt from the trades test), the applicant referred to statements she said were made to her in 2005 by Union officials. She also mentioned a number of documents, which she says established her full membership.
43I have reviewed those documents carefully. While the applicant interprets these documents to mean that she was a full member, she does so by implication. None of the documents before me establish that, nor do they reasonably lead to the inference the applicant proposes. For example, one of the documents the applicant referred to is an email from her to the Union president, dated August 12, 2008 in which the applicant asserts that she is a full member. She also referred to her Union application form, minutes of Union meetings in which she is noted as having spoken, and the fact that she was able to work at other venues. In essence, she stated that she was “being treated like a senior member”.
44In 2008, the Union advised the applicant that she was required to take the trades test. According to the minutes of a Union meeting in October 2008, at least two other Union members were required to take the test as well.
45The applicant objected to taking the trades test for a number of reasons. First, as noted, she took the position that she was already a senior member. Second, the Union had revised the trades test in 2008 and the applicant felt she was being set up to fail. In particular, the applicant objected to Ms. Molokoch’s involvement in revising the test. Third, by that time, the applicant had moved to Toronto and she did not wish to travel to Niagara to take the test. When the business agent offered to administer the test in Toronto, she objected (among other reasons) because there was not an appropriate space to take the test and she had not had sufficient notice.
46On October 20, 2008, the Union members voted on the applicant’s membership. The applicant was not present at this meeting. The minutes of the meeting suggest that the trades test requirement was debated and ultimately upheld. The minutes report the results of the vote: the applicant and another person who had not passed the trades test were not accepted as senior members. A third member requested and was granted an opportunity to rewrite the test.
Allegations of Reprisal
47Over several days of evidence, the applicant identified numerous and wide-ranging issues, which she says constitute reprisal measures. These incidents include the following:
a. The Applicant was injured at work in March 2008. She states that she was frustrated because her co-workers were smoking that day. She complained to her supervisor (Archie MacKenzie), which she says lead to an argument. The Applicant states the accident was a reprisal measure because it occurred (in part, at least) because she was frustrated, affected by the second hand smoke, and distracted by the argument.
b. She states that she was removed from the Union’s call or referral list from approximately November 2007 to January 2008. She alleges that Mr. MacKenzie convinced then business agent Peter Gracie to not offer calls, at least in part because she had complained about smoking.
c. She was removed from the call list a second time, from the date of a workplace accident (March 27, 2008) to July 1, 2008. She states that the Union did not assign her stagehand work in retaliation for her complaint about smoking in the workplace and/or because of her gender. Even once she was returned to the call list, the Applicant states that she continued to be skipped for calls.
d. The Shaw refused to accept the Applicant on a stagehand call on July 3rd, 2008 (referred to as a “changeover call”) because of an alleged lack of qualifications or competence. The Applicant states that this work refusal was in retaliation for her filing a complaint about smoking with Ms. Gibbs on June 12, 2008. She also alleges that Mr. MacKenzie bears some responsibility for the work refusal, because of his poor evaluations of her work performance.
e. Although she shadowed a co-worker and acquired the skills to do the changeover, the Shaw (and Mr. Finlayson in particular) delayed unreasonably in acknowledging that she was qualified for this shift.
f. The Applicant filed a number of complaints with the Union, about issues ranging from her alleged removal from the call list, to Peter Gracie’s work as business agent, to the July 3, 2008 work refusal, to a written warning and a missed shift in October, 2008. She states that the Union failed to deal with her issues appropriately and that it did this in retaliation for the complaints she raised.
g. The Union offered her a seasonal position as a wardrobe supervisor beginning in June 2008, but it failed to recognize that a prior claim attached to that position.
h. Local 461 insisted that the applicant write a trades test in order to become a senior member of the Union. She states that this was a reprisal measure because she was treated differently from others, who were either exempt from the trades test or were given an easier test. Ultimately, the applicant refused to take the trades test, which was a factor in her being voted out of the Union.
i. The applicant states that Local 461’s decision to vote her out of the Union is also a reprisal measure. She alleges that the Shaw interfered somehow in the membership vote and that it failed to help her be reinstated into the Union, both of which constitute reprisal measures.
THE CODE
48The relevant provisions of the Code are as follows:
- (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
Every person has a right to equal treatment with respect to membership in any trade union, trade or occupational association or self-governing profession without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.
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 for so doing.
THE LEGAL TEST: NO REASONABLE PROSPECT OF SUCCESS
49At this stage of the proceeding, the only issue for me to determine is whether the Application has any reasonable prospect of success. In Pellerin, the Tribunal explained the applicable legal principles as follows (at para 10):
A successful claim of discrimination or harassment requires an applicant to show that one of the prohibited grounds was a factor in disadvantage experienced by the applicant. A successful claim of reprisal requires an applicant to show that it was the intention of a respondent to take actions in reprisal for asserting Code rights. Discrimination or reprisal need not be the only or even the principal factor in a respondent’s decision or actions, but an applicant must show that it was one of the factors.
50To be successful, an Applicant must do more than present bald allegations or unfounded suspicions: Pellerin at para. 14; see also Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389. Indeed, as the Tribunal explained in Pellerin, “Human rights applications should not be an endless search for an unlikely needle in a haystack”: at para. 12.
51In determining whether there is a reasonable prospect the Application can succeed, I must consider whether there is evidence that could be obtained from the respondents and that may lead to a finding of discrimination. However, as the Tribunal explained in Dabic v. Windsor Police Service, 2010 HRTO 1994, when there is no reasonable prospect that any such evidence could allow the applicant to prove her case on a balance of probabilities, the application should be dismissed on a summary basis: at para. 10.
52As noted, it is not necessary for me to make findings of credibility at this stage of the proceeding. Importantly, however, accepting the facts alleged by the applicant does not necessarily include accepting the applicant’s assumptions about those facts. As the Tribunal explained in Armstrong v. Galaxy Car and Pet Wash, 2015 HRTO 22, determining whether an Application has a reasonable prospect of success involves determining “if reasonable inferences likely can be drawn from any facts or evidence the applicant is able to point to which tend to support the applicant’s belief that he or she has experienced discrimination or reprisal within the meaning of the Code”: at para. 7.
53Finally, 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. It is not sufficient for the applicant to allege that she was treated unfairly. To be successful, she must demonstrate a connection between any allegedly unfair treatment and the Code.
ANALYSIS
Smoking
54The applicant raised concerns about smoking with the Shaw on three occasions: on or about March 26, 2007 (through Mr. Mestern); on June 12, 2008 (in a letter to Ms. Gibbs); and in September 2008 (in a meeting with Mr. Finlayson). Even if I assume, without finding, that there is a connection between workplace smoking and a disability (the applicant’s asthma) and even if I assume that the Shaw was aware of that connection, I am not satisfied that this aspect of the Application has a reasonable prospect of success. The evidence establishes that, each time it was alerted to workplace smoking, the Shaw took the applicant’s concerns seriously and took reasonable steps to address any of her disability-related needs.
55It is significant that the first two complaints to the Shaw are over one year apart. The manner in which the applicant raised the issue with Mr. Finlayson is also significant. In September 2008, the applicant was not seeking better enforcement of the smoking policy as an accommodation for a disability-related need. Rather, she was seeking to “barter” her complaints to obtain a leave of absence, which she had been unable to obtain otherwise. Ultimately, Shaw granted her request for a leave.
56There is no basis to conclude that the Employer Respondents breached the Code in relation to the smoking allegations. This aspect of the Application has no reasonable prospect of success.
57The applicant complained about smoking to Union members (including supervisors) and Union officials. She urged me to conclude that, as a result of these discussions within the Union, the Shaw knew or ought to have known about ongoing smoking issues. Importantly, however, the applicant has not provided or identified any evidence that would support this contention. This inference is nothing more than speculation on the applicant’s part.
58The applicant cites Central Okanagan School District No. 23 v. Renaud, [1992] 2 SCR 970, 1992 CanLII 81 for the proposition that the Union has an obligation to ensure that the workplace is free of harassment or discrimination. In that case, the Supreme Court explains that a union may become a party to discrimination in two ways:
a. it may cause or contribute to the discrimination by participating in the formulation of the work rule that has the discriminatory effect on the complainant.
b. it may be liable if it impedes the reasonable efforts of an employer to accommodate.
59In this case, the main issue is whether the smoking policy was reasonably enforced. There are no allegations that the policy, itself, was discriminatory. Although the applicant argues that Union members did not always comply with the smoking policy, she has not identified or provided any evidence to suggest that the Union impeded the Shaw’s efforts to address the issue. Renaud does not contemplate Union liability because of members’ occasional non-compliance with employer policies or directives. A finding of Union liability must be based on evidence that the Union obstructed or interfered with the Employer’s attempts to enforce the policy. The applicant in this case offered no such evidence.
60The applicant submits that the Union Respondents failed to take appropriate steps to protect her from workplace smoking and that this failure constitutes discrimination. This is a misapprehension of the scope of Union’s obligations under the Code.
61In Traversy v. Mississauga Professional Firefighters’ Association, 2009 HRTO 996, the Tribunal stated: “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 Union has no obligation to manage the workplace or to direct or discipline employees concerning work-related issues. Those responsibilities lie with the employer. In any event, while the applicant raises a number of allegations of reprisal, she makes no assertion that the Union treated her differently from other employees in handling her allegations of workplace smoking and sexual harassment.
62For these reasons, there is no basis to conclude that the Union Respondents discriminated against the applicant or breached the Code in regards to her smoking concerns. This aspect of the Application has no reasonable prospect of success.
Sexual harassment
63The Shaw learned of the applicant’s allegations of sexual harassment on or about March 24, 2007 (through Mr. Mestern) and, again, in mid-September 2008, when the Applicant met with Mr. Finlayson. In each case, the Applicant declined to provide particulars, elected not to pursue a complaint, or specifically asked that the matter not be pursued.
64The applicant submits that the Employer ought nevertheless to have done more to ensure that her workplace was free from harassment. It is not clear how the Employer might have done this, in the absence of particulars and/or against the applicant’s will, as it was then expressed. Again, the manner in which the applicant raised the issue with Mr. Finlayson is significant. When she met with him in September 2008, she referred to incidents that had occurred at least six months earlier and she did not allege any new or ongoing harassment. As noted, she presented the leave of absence as a “solution to the harassment issue” and a means of bartering for a leave that she had been otherwise unable to obtain. Her request to be excused from shifts was granted. In these circumstances, there is no reasonable prospect of establishing that the Employer Respondents failed to take appropriate steps to address the allegations of sexual harassment.
65The applicant submits that the Union Respondents failed to protect her from workplace harassment and that this failure constitutes discrimination under the Code. For the reasons provided earlier, this is a misapprehension of the scope of Union’s obligations under the Code: Traversy v. Mississauga Professional Firefighters’ Association, 2009 HRTO 996.
66For these reasons, I find there that the applicant’s allegations of sexual harassment against the Employer Respondents and the Union Respondents have no reasonable prospect of success. As noted, at this stage of the proceeding, I make no finding as to the allegations of sexual harassment against Mr. Marcone.
Reprisals
67The applicant’s allegations of reprisal have no reasonable prospect of success. This conclusion is based on the following factors: the breadth of the allegations of reprisal and the fact that significant interpersonal issues pre-dated any Code-related complaints; the absence of evidence or prospective evidence that establishes a link between the allegations of reprisal and the Code; the fact that the evidence does not support the inferences drawn by the applicant; and the fact that much of the applicant’s evidence was purely speculative. Although I have not referred to each and every allegation of reprisal brought by the applicant, I have addressed the common issue of whether these allegations have a reasonable prospect of being linked to the Code.
68First, the applicant has claimed that much if not all of the respondents’ behaviour from 2007 to 2008 was a form of reprisal against her. It is significant, that from the outset of her employment with the Shaw, the applicant had a difficult relationship with many of co-workers, supervisors, and Union officials. She complained repeatedly of poor treatment within the workplace, well before March 2007, when she first raised Code-related issues. It is clear that the applicant feels the respondents treated her unfairly. It is also very clear that she disagrees and disputes most of the respondents’ decisions and actions. The breadth of the allegations and the scope interpersonal difficulties experienced by the applicant (both before and after she made Code-related complaints) are considerable. Having regard to the whole of these allegations, I find there is no reasonable prospect that the applicant can show that these interactions – whether taken as a whole or individually -- relate to the Code.
69Second, although she was questioned extensively about this, the applicant has not provided evidence establishing a link between her allegations and an intention to reprise against her because she asserted her human rights: Noble v. York University, 2010 HRTO 878; and Pellerin, at 10. The speculative nature of the applicant’s allegations was apparent from answers she provided during her testimony. When she was asked why she believed a particular measure was intentional or in retaliation for her assertion of Code rights, the applicant responded: “There is no reason to believe that it isn’t.” In other instances, she acknowledged that her allegation was based merely on suspicion, but suggested that her suspicions (which are extensive) should trigger an exploration of the issue with the respondents’ witnesses.
70The fundamental problem with the applicant’s position is that it is based on a misapprehension of who bears the burden of proof. Ultimately, it is the applicant who must prove her allegations on a balance of probabilities. There is no requirement (as the applicant seems to suggest) that the respondents disprove a series of suspicions and bald allegations: Pellerin, para. 14; see also Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389. Indeed, this is precisely the type of proceeding the Tribunal in Pellerin sought to avoid: the applicant has made broad and wide-ranging allegations of reprisal, she has provided no basis to conclude that these allegations are connected to the Code, yet she submits that the matter ought to proceed so that she can search for some foundation in the respondents’ evidence. In my view, to proceed with the reprisal allegations beyond this stage would be very much akin to searching for an unlikely needle in a haystack.
71Third, the evidence often does not support the inferences the applicant seeks to draw. Although the applicant’s evidence contained numerous examples of unsupported inferences, I will point to three, by way of example:
a. The applicant states that the Union reprised against her when it required her to take the trades test and then voted to reject her membership. The documentary evidence, however, suggests that in October 2008, she was not the only member who was required to take the trades test, nor was she the only person expelled from the Union because she had not passed it. As noted, the documents the applicant relies on to show that she was a full member (and therefore exempt from the trades test requirement) do not support this inference.
b. The applicant states that the Shaw interfered in the Union’s decision to deny the applicant’s application for full membership. However, except to say that the trades test was based on training received from the Employer, she provided no evidentiary basis to support this inference.
c. The applicant states that the Union reprised against her by removing her from the call list in 2007. The applicant’s own evidence establishes, however, that (to the extent that she was removed from the list) this could reasonably be explained in a series of ways that are entirely unconnected to the Code. For example, Union member Peter Gracie was responsible for referring calls when the applicant says she was removed from the call list. There appears to have been considerable personal animosity between the applicant and Mr. Gracie: they had had a personal relationship; the applicant had specifically asked Mr. Gracie not to contact her; and she had complained to the Union about Mr. Gracie, raising issues about his competence. Moreover, at the material times, the applicant was also working at another venue. As noted, there is a dispute about the applicant’s membership status. Under the Union Constitution, however, a junior member’s work at another venue can be a basis for removal from the call list.
72For all of these reasons, I find that the allegations of reprisal against the Employer and the Union Respondents have no reasonable prospect of success.
THE CONDUCT OF THE HEARING
73The Tribunal has issued five interim decisions and 13 case assessment directions in this matter. While much of the procedure followed is set out in those documents, it is helpful to summarize some of the procedural aspects of the case that are not specifically addressed.
74The Application is very detailed and it contains broad and wide-ranging allegations. The applicant sought and obtained leave to amend the Application: 2010 HRTO 1748. However, her requests to add parties and her further requests to amend the Application were denied: 2010 HRTO 1748 and 2011 HRTO 1737. The applicant has since filed an additional Application, which raises allegations that are related to those contained in this Application.
75The Application is lengthy and detailed, but it is difficult to follow. Based on the Application, it was difficult to make out the nature and scope of the applicant’s allegations. In advance of the hearing, I directed the applicant to summarize and clarify certain aspects of her claim: CAD dated March 24, 2011. Although I appreciate that the applicant made best efforts to comply with my direction, her efforts did little to actually clarify her claims.
76At the outset of the hearing, the respondents objected to proceeding on the basis that they could not make out the case against them. I overruled their objection and directed that the hearing begin with the applicant’s evidence. So the respondents could adequately prepare, I indicated that I would adjourn the hearing at the close of the applicant’s evidence in-chief: CADs dated April 23, 2012 and November 13, 2012.
77I proposed (and the parties agreed) that I begin by posing questions of the applicant. After I had posed my questions, I gave the applicant an opportunity to provide additional evidence. After the applicant’s cross-examination and redirect, I invited submissions on May 4, 2015 as to whether the Application should be dismissed (in whole or in part) because it has no reasonable prospect of success.
78The applicant asked for an adjournment of the May 4th hearing because she wanted to obtain additional documents and because she wished to have additional time to prepare. I denied this request, but invited parties to raise any objections or potential prejudice at the May 4th hearing. I gave the parties an opportunity to raise issues and pose questions at the outset of the May 4th telephone conference. None of the parties objected to proceeding at that time.
CONCLUSION AND NEXT STEPS
79For the reasons set out above, the Application is dismissed against the Employer Respondents and the Union Respondents because it has no reasonable prospect of success. The Application may proceed against the personal respondent, Domenic Marcone.
80The Tribunal will schedule two additional days of hearing. Within one week of the date of this Interim Decision, the applicant and Mr. Marcone must write to each other and to the Tribunal to provide their availability for a further two days of hearing.
81On the next hearing day, Mr. Marcone should be prepared to provide his evidence to the Tribunal. The applicant should be prepared to cross-examine Mr. Marcone.
82Thousands of pages of documents have been filed with the Tribunal and, throughout the hearing, it has been difficult for the parties to locate proposed documentary evidence. If either the applicant or Mr. Marcone intend to file additional documents into evidence, they must have three copies of each document readily available at the hearing.
Dated at Toronto, this 30th day of June, 2015.
“signed by”
Michelle Flaherty
Member
