James v. Ontario Secondary School Teachers Federation, 2016 HRTO 1099

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anthony James Applicant

-and-

Ontario Secondary School Teachers Federation, Paul Elliott, Pierre Cote, Andy Simpson, Kerri Ferguson, Dale Leckie, Suzette Clark, Cathy Renfrew, Scott Marshall, Florina Ditta, Randi MacDonald, Susan Luft, Jim Spray, Rob Dubyk, Lee Ann Gulyas, Olga De Melo, Nancy Vogal and Sharon Grant Respondents

DECISION

Adjudicator: Keith Brennenstuhl Date: August 17, 2016 Citation: 2016 HRTO 1099 Indexed as: James v. Ontario Secondary School Teachers Federation

APPEARANCES

Anthony James, Applicant Self-represented

Ontario Secondary School Teachers Federation, Paul Elliot, Pierre Cote, Andy Simpson, Kerri Ferguson, Dale Leckie, Suzette Clark, Cathy Renfrew, Scott Marshall, Florina Ditta, Randi MacDonald, susan Luft, Jim Spray, Rob Dubyk, Lee Ann Gulyas, Olga De Melo, Nancy Vogal and Sharon Grant, Respondents Simon Blackstone, Counsel

Introduction

1This Application alleges discrimination with respect to membership in a Vocational Association because of race, colour, ancestry, place of origin, ethnic origin and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The applicant was a teacher with the Toronto District School Board. The Ontario Secondary School Teachers' Federation ("OSSTF") was his bargaining agent. The individual respondents named by the applicant are officers or employees of OSSTF. The applicant is no longer employed by the Board.

3In a Case Assessment Direction ("CAD") issued on February 11, 2016, the Tribunal directed that a preliminary hearing be held to determine whether the Application should be dismissed, in whole or in part, on the basis that:

a. There is no reasonable prospect that the Application, or part of the Application, will succeed; and,

b. It appears that some or all of the allegations may be untimely.

4In addition the CAD directed that the preliminary hearing address whether the named personal respondents should be removed from the Application if it is not dismissed on one of the above bases.

5For the reasons that follow, I find that the Application must be dismissed as having no reasonable prospect of success. Given this finding, it is not necessary to deal with the timeliness issue or address the issue of the removal of personal respondents.

summary hearing process

6The summary hearing process is described in Rule 19A of the Tribunal's Rules of Procedure ("Rules") 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 and usually before the Response is filed, as in this case, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

7The Tribunal cannot address allegations of unfairness that are unrelated to the Code. The Tribunal's jurisdiction is limited to claims of discrimination that are linked to the protections set out in the Code.

8The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he or she experienced. The 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 or the evidence is not disputed by the applicant.

9However, and significantly, accepting the facts alleged by the applicant does not include accepting the applicant's assumptions about why he or she was treated unfairly. The purpose of the summary hearing is to determine if the applicant is able to point to any information which tends to support his or her belief that he or she has experienced discrimination or reprisal under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any evidence, or any evidence that may be reasonably available to the applicant, to connect the unfair treatment allegedly experienced by the applicant with the Code's protections.

10As the Tribunal indicated in Forde v. Elementary Teachers' Federation of Ontario, 2011 HRTO 1389, for an application to continue in the Tribunal's process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show a breach of the Code.

analysis

11The applicant was unable to identify any events in his Application that could give rise to a finding that OSSTF or any of the named respondents have violated his Code rights. The applicant asserts the following:

• On September 28, 2011, the applicant claims that he brought to OSSTF's attention "the fact that I can't see any jobs in the northwest quadrant. The reposting of a job at Brookview because they can't find anyone for the job. I am told about the process. I provided documentation out of the collective agreement and [N.V.] read and agreed with it. Left a letter for [S.T.] at the board office and gave a copy to [N.V.]. No grievance is filed on my behalf.

• In October 2011, the applicant brought to the attention of individuals at OSSTF that he was entitled to additional sick days, that a grievance meeting was held and the applicant "was not given the opportunity to provide evidence to support the grievance. The grievance was abandoned by the Union".

• On October 5, 2011 one of the personal respondents explained to him that paychecks were issued on a two-week basis and that this amounted to a "reprisal of harassment from the TDSB and Nancy is not giving me factual information about the situation. She attempts to confuse me."

• On November 1, 2012 in response to a conversation with an OSSTF employee regarding the applicant's allegations of an unsafe work environment, the applicant alleges that "I raise concern about the board investigating the board. She is the health and safety rep for the local union and she's not following health and safety protocol when a work refusal is initiated by a worker".

• With respect to a meeting on March 1, 2013 with an OSSTF representative the applicant alleges: "I have a meeting scheduled with [a representative] of the OSSTF for an hour and once I arrive, I am told the meeting is now 25 to 30 minutes long. He lets me know that temporary employees cannot chose where they are going to work. I am letting him know what is happening to me when it comes to job postings. I am getting calls from the TDSB while I am at home on suspension. I brought to his attention about violations of the collective agreement about job postings not being followed according to board procedures. The TDSB doing job interviews outside the procedures to be followed on the job postings. He told me he would look into it. I brought a complaint to his attention about some [OSSTF employee's] conduct when I provide matters that are grievable. He will do an investigation once he gets emails".

• The applicant alleges that on July 11, 2013 "the local union filed a grievance on the griever's behalf with no input from the griever".

• The applicant alleges that on August 9, 2013 he expressed concerns "of conflict of interest as the law firm that the [OSSFT] uses".

• On September 26, 2013 the applicant allegedly met with the president of the OSSTF. He indicates that "I explained about the treatment that I was getting at the Toronto District School Board. Not being able to see jobs in the North West quadrant and being denied job opportunities. That I was wrongfully terminated and that the board didn't follow the proper protocols and procedures.

• The applicant alleges that on November 11, 2013, he received a phone call from an OSSTF seeking answers to questions about issues related to the applicant's termination to evaluate the merit of a potential grievance. Though the applicant asks to meet with the representative, the representative requires that the applicant first answer the questions in writing before a meeting will be scheduled. The applicant alleges: "six months has passed and now they're coming to ask me to sign a response to questions that the union has of me, but the Toronto District School Board has not put in writing as to what I've done wrong. Here we have the union trying to get me to commit to answers in writing and we haven't followed the procedure to even file for arbitration".

• On January 17, 2014 the applicant has a meeting with OSSTF. The applicant alleges that: "This was an attempt to get me to answer questions and to sign to it as to what I would be saying at the arbitration. [K.F.] is narrowing the time line to May 13, 2013 to June 26, 2013. She's asking me questions and letting me know what an arbitrator would want to know about. While we still haven't filed for arbitration and the timeline is passed, they are now attempting to get information from me so that they can use it against me".

• With respect to a further conversation on February 11, 2014 about getting particulars the applicant alleges: "This is an attempt to trick me into answering questions and then using my answers back against me. The constant psychological harassment that I face in dealing with this situation that is not being handled the proper was. According to the Constitution and bylaws of the organization".

12There is only one reference in the Application to any treatment that is connected to any Code-protected ground. The applicant alleges that on October 30, 2012: "I brought to her attention about being called a Nigger, and being spit on today". However, as he clarified during the hearing, this is the treatment he experienced at the hands of one of the students with whom he was working. Clearly, this example does not demonstrate any act of discrimination on either the part of the OSSTF or any named respondent.

13It is clear from the above allegations that the applicant is complaining about being treated unfairly and although those allegations detail decisions and interactions which the applicant found unsatisfactory, there is no evidence contained in the Application, nor did the applicant point to any evidence that may be reasonably available to him, connecting the unfair treatment with the Code's protections.

14A union cannot be found to have violated the Code merely because it has failed to properly or adequately represent one of its members. 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 Bayle 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.

See also Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 at paras. 16-18.

15Turning to the allegation of reprisal, the applicant explained the reprisal as follows:

I continue to ask questions regarding why I'm not seeing jobs particular area of the Toronto District School Board. I asked my union to file a grievance on my behalf on many different issues and they were reluctant to file grievances on my behalf. So after I did a work refusal, and was off for more than six months. When I returned to work, my employer started to harass me and my union took no action in my defense (sic).

16In my view, these facts do not support a finding of reprisal. The reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one's human rights. See Noble v. York University, 2010 HRTO 878. The applicant did not point to any assertion by him of a Code right. Accordingly, the reprisal allegations in the Application are dismissed as having no reasonable prospect of success.

order

17For the above reasons, the Application is dismissed as having no reasonable prospect of success.