Rogers v. NABET 700-M, UNIFOR, 2016 HRTO 1051

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Douglas Rogers Applicant

-and-

NABET 700-M, UNIFOR Respondent

DECISION

Adjudicator: Alison Renton Date: August 9, 2016 Citation: 2016 HRTO 1051 Indexed as: Rogers v. NABET 700-M, UNIFOR

APPEARANCES

Douglas Rogers, Applicant Self-represented

NABET 700-M, UNIFOR, Respondent Maeve Biggar, Counsel

1This Application alleges discrimination with respect to employment because of sexual orientation contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The respondent filed a Request for Summary Hearing requesting that the Tribunal dismiss the Application as having no reasonable prospect of success. Along with its Request, the respondent filed a book of documents.

3The Tribunal issued a Case Assessment Direction ("CAD") stating that a summary hearing conference call would be scheduled to hear the parties' arguments about whether all or part of the Application should be dismissed as having no reasonable chance of success. The summary hearing conference call ("the summary hearing") was scheduled for August 5, 2016, by notice dated June 17, 2016.

4On July 18, 2016, an individual on behalf of the applicant emailed the Tribunal requesting an adjournment of the summary hearing. The email said that the applicant would like more time to review the materials received before presenting his complaint. The respondent objected to the adjournment request. The Tribunal issued an Interim Decision, dated July 28, 2016, denying the adjournment request, stating that there were not extraordinary reasons to justify adjourning the hearing.

5The summary hearing was held on August 5, 2016 and both parties participated. The applicant was given the opportunity to make his submissions first (as was indicated in the CAD) and to make further submissions once the respondent's submissions were made.

the applicant's submissions

6The applicant indicated that he was not sure what he was supposed to say during the summary hearing. Until recently, his nephew had been overseeing his Application, but his nephew had been hospitalized, which was the basis for his adjournment request. The information about his nephew was not provided in the adjournment request. The applicant indicated that he had been busy at work and could not speak with a lawyer before the summary hearing.

7The applicant stated that the harassment to which he has been subjected by fellow members of the respondent has been ongoing for approximately 10 years. He provided details of some of the alleged harassment he experienced. He also alleges that he has not been given scenic training, which non-permit individuals are hired to do.

8Upon being told by the Tribunal that it would not be hearing evidence during the summary hearing (as was set out in the CAD), the applicant stated that he called one of the respondent's representatives 40 to 50 times over the years, but did not receive a response. The essence of his allegation was in his Application. In response to information in the respondent's Request that the union responded by email to him to a letter that he submitted to it in December 2015, the applicant admitted that he received the email, but, through frustration, crumpled it up and threw it on the floor. He did not respond to the email as he thought that he would not be taken seriously.

the respondent's submissions

9The respondent acknowledges that the applicant may have a claim of workplace discrimination, but submits that it should be directed against an employer, not it. The respondent submits that it is the applicant's bargaining agent, not employer, and that it has no jurisdiction to discipline employees.

10The applicant has not, the respondent submits, established any facts that would support his position that the respondent discriminated against him on the basis of sexual orientation in employment. The Application is almost devoid of particulars, but at its highest, the respondent submits, the applicant alleges that the respondent failed to respond to a letter he sent it in December 2015. The respondent points out that the applicant now admits that the respondent did respond to that letter by email, but that he has not subsequently responded to the respondent's email.

11As for his allegations that he did not receive scenic training, the respondent submits that the applicant has not been able to establish that the lack of training was connected to a Code ground, specifically sexual orientation.

12For these reasons, the respondent submits, the Tribunal should dismiss the Application as having no reasonable prospect of success.

analysis

13The issue in a summary hearing is whether the Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

14In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 - 10, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

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.

15As the Tribunal stated in Forde v. Elementary Teachers' Federation of Ontario, 2011 HRTO 1389, at para. 17:

The 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 or the intention by a respondent to commit a reprisal for asserting one's Code rights.

16In this Application the applicant has alleged that the respondent has discriminated against him in employment. The respondent has clarified that it was the bargaining agent for the applicant, not his employer, which is not disputed by the applicant. While the applicant may have been subjected to harassment by his co-workers over the years, there is no evidence to which the applicant has pointed to establish that the respondent is statutorily liable for his co-workers' conduct.

17The applicant may be correct that the respondent did not respond to his telephone calls over the years. However, he has not pointed to any evidence that he may have, or that may be reasonably available to him that may establish a link between the respondent's failure to respond and the Code ground of sexual orientation. With respect to his assertion in the Application that the respondent failed to respond to his December 2015 letter, he conceded during the summary hearing that the respondent did respond, by email, but that he ignored it because he was frustrated with the respondent. As for his allegations that non-permit individuals are doing scenic painting, for which he has not been trained, he has not pointed to any evidence upon which he would rely to establish that the respondent failed to provide this because of his sexual orientation.

18The Tribunal has stated that it does not have the power to deal with general allegations of unfair treatment by unions or employee associations. The Tribunal can only deal with allegations of discrimination or harassment which are based on the prohibited grounds set out under the Code. In keeping with this, the Tribunal has found that it is not discrimination for a union or an employee association to decide not to pursue a grievance, or address a member's issues, unless its decision it linked, in whole or in part, to a prohibited ground of discrimination under the Code: see Baylet v. Universal Workers Union, 2009 HRTO 700, at paras. 17 – 19; Traversy v. Mississauga Professional Firefighters Association, 2009 HRTO 996 at para. 33; and Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 at paras. 16-17.

19As stated in In Traversy, above, 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.

20In this Application, the applicant's allegations certainly reflect dissatisfaction with the respondent, and its failure to earlier respond to his concerns and failure to provide training. However, even accepting the applicant's allegations to be true, I do not find that there is any evidence, direct or indirect, that the applicant can point to that demonstrates that the respondent's failure to act, or not provide scenic training, was based upon discriminatory factors. Accordingly, I find that the Application has no reasonable prospect of success and the Application is dismissed.