Valentino v. FCA Canada Inc., 2016 HRTO 122

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Angele Valentino Applicant

-and-

FCA Canada Inc. Respondent

INTERIM DECISION

Adjudicator: Laurie Letheren Date: January 26, 2016 Citation: 2016 HRTO 122 Indexed as: Valentino v. FCA Canada Inc.

APPEARANCES

Angele Valentino, Applicant Self-represented

FCA Canada Inc., Respondent Clifford Hart, Counsel

Unifor, Ardis Snow and Leon Rideout, Respondents Catherine Bell, Student-at-law

Introduction

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondents discriminated against her with respect to employment because of her disability.

2This Interim Decision determines the issues of whether the Application should be dismissed on the basis that a grievance appropriately dealt with its substance or whether it has no reasonable prospect of success as against the respondent Unifor and the individual respondents (the “Union respondents”). A teleconference hearing was held where the parties had the opportunity to make oral submissions and present documents and cases which addressed these issues.

3I have determined that the Application against the Union respondents should be dismissed. The Application against FCA Canada Inc. (“FCA”) will proceed.

Background

4At all material times, the applicant was an employee of FCA at its Brampton Assembly plant. The terms and conditions of her employment were subject to the collective agreement between FCA and Unifor and its Local 1285. Ardis Snow was a Local 1285 Plant Chairperson. Leon Rideout was the Local 1285 President.

5The applicant was off work from FCA from June 2012 to June 2013. She alleges that during that period of time she experienced discrimination by FCA and the Union respondents for keeping her on work layoff and not awarding her jobs for which she was fit and qualified.

6The applicant alleges that sometime after June 2012, she posted for a job for which she was qualified and fit to work but this job was given to an employee with less seniority.

7On February 11, 2013, Unifor filed a grievance on behalf of the applicant against FCA with respect to its failure to award her the position in question. The grievance was settled at a third step meeting. A document created to reflect the settlement states:

Resolved: In full and final resolution of the grievance, the Company agrees to pay the Grievor Eighty (80) hours at straight time without prejudice to any matters between the parties.

8The Union respondents ask the Tribunal to dismiss the Application as against them on the basis that the applicant had no reasonable prospect of demonstrating that the actions of the Union are a breach of the Code and another proceeding has appropriately dealt with the substance of the Application. The respondent FCA took no position on the Request in its response (Form 11) although, in oral submissions at the summary hearing, it agreed the Application should be dismissed, at least in part, on the basis of another proceeding having appropriately dealt with the substance of the Application.

ANALYSIS

Application against the Union Respondents

9Rule 19A of the Tribunal’s Rules provides for a summary hearing, following which an application may be dismissed, in whole or in part, if the Tribunal finds that there is no reasonable prospect that the application or part of the application will succeed. The approach to deciding whether an application has a reasonable prospect of success following a summary hearing was explained as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8-9:

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.

10The 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. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17.

11In her Application, the applicant alleged that Unifor did not assist her when FCA determined that she was not capable of doing a job and advised her that her only option was to go on category layoff. The applicant alleges that Unifor did not explain her rights to have the job reviewed by physicians.

12The applicant also alleges that there is discrimination in the distinction that is made between employees who are injured and are receiving benefits from the Workplace Safety and Insurance Board (WSIB) and those who are injured and whose WSIB claims are denied. She alleges that when WSIB claims are denied, employees are put on layoff while those whose WSIB claims are granted will be accommodated by FCA. The applicant alleges that Unifor is breaching her Code rights as a person with a disability by allowing this to happen.

13The Union respondents submit that even if the applicant were to prove the facts she has alleged, they could prove no more than a failure to adequately represent her and that is not a breach of the Code nor is it something that the Tribunal has the jurisdiction to address. A breach of the Code by a union could only arise if the union causes or contributes to the discrimination such as by blocking an employer’s efforts to remove the discrimination.

14The Union respondents submit that the applicant has not presented any facts that could be found to demonstrate that they caused or contributed to the alleged discrimination. They do not have authority to accommodate an employee. The facts alleged against them can only demonstrate that she is dissatisfied with their representation of her.

15In my view, based on the facts as alleged by the applicant, she has no reasonable prospect of demonstrating that the actions of the Union respondents were a breach of her Code rights. She has provided no facts that could demonstrate that the Union respondents refused to assist her because of her disability or because her WSIB claim had been denied. In order to find a breach of the Code, there must be a demonstration of differential treatment, and not simply a failure to act. There must be facts presented that could demonstrate the link between the Union respondents’ actions and her disability. The Tribunal has consistently held that a union or an employee association’s refusal or failure to act on behalf of a member cannot be discriminatory unless it is linked to a Code ground. See for example, Traversy v. Mississauga Professional Firefighters’ Association, 2009 HRTO 996 at para. 33.

16Since the personal respondents were acting in their capacity as representatives of Unifor, their actions cannot be found to be a breach of the Code for the same reasons.

17Accordingly, the Application against Unifor, Mr. Snow and Mr. Rideout is dismissed.

Application against the FCA Canada Inc.

18Section 45.1 of the Code and Rule 22 of the Tribunal’s Rules of Procedure provide that the Tribunal may dismiss an Application, in whole or in part, if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the Application.

19Section 45.1 of the Code requires a two-part analysis: (1) whether there was another proceeding and, if so, (2) whether it appropriately dealt with the substance of the Application.

20Given that the grievance proceeding at issue was resolved by settlement between the parties rather than in a decision, the principle of abuse of process is also applicable. As noted by the Supreme Court of Canada in British Columbia (Workers’ Compensation Board) v. Figliola, [2011] S.C.R. 422 at paragraph 24, abuse of process is a principle underlying statutory provisions like section 45.1 of the Code.

21Section 23(1) of the Statutory Powers and Procedure Act, R.S.O. 1990, c. S.22, provides that a tribunal may make such orders or given such directions in proceedings before it as it considers proper to prevent abuse of its processes. The doctrine of “abuse of process” can apply in a variety of circumstances in which the Tribunal determines that it would be unfair to permit an application to continue. The circumstances that can give rise to an abuse of process include circumstances such as re-litigation and a previous settlement.

22It is settled law that a settlement reached in a grievance is a “proceeding” within the meaning of section 45.1. See, for example, Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, and Healey v. McMaster University, 2010 HRTO 1874.

23In Dunn, the Tribunal held that a grievance settlement constitutes a “proceeding” that comes within the ambit of section 45.1:

I find that s. 45.1 may apply to settlements of proceedings under other statutory schemes. This conclusion is supported by both the wording and purposes of s. 45.1. The provision refers to a “proceeding” having “dealt with” the matter, rather than using narrower words that would only encompass adjudication like “decision” or “reasons”. More important, the purpose of avoiding the duplication of proceedings and ensuring finality in litigation would be severely undercut if the section applied only to decisions. Most litigation ends in settlement. To be effective, settlements must be final, since otherwise the parties would have no incentive to make an agreement to end litigation. An interpretation of s. 45.1 that did not cover settlements would discourage parties from working to resolve human rights proceeding without recourse to litigation.

24The next question is whether that earlier proceeding appropriately dealt with the substance of the Application: See, for example, Sawnhey v. Law Society of Upper Canada, 2014 HRTO 129. This requires examining whether the same facts and issues were at considered in both proceedings.

25According to the documents filed in relation to grievance and the submissions of the parties, the settlement only covered the period of time from November 12, 2012 to December 2012, which is described as the period of time when the applicant provided medical documentation that supported that she was fit to work at the job posted and the time when she would have been bumped from the job posted by a more senior employee. The facts alleged in the Application cover a period of time beyond that covered by the settlement. The applicant is alleging she experienced discrimination from June 2012 to June 2013. As a result, it could not be found that this proceeding appropriately dealt with the entire substance of this Application.

26For all of these reasons, the request for dismissal of the Application pursuant to s. 45.1 of the Code is denied. The part of the Application against FCA Canada Inc. that is not covered by the settlement shall proceed.

ORDER

27The Application as against Unifor, Ardis Snow and Leon Rideout is dismissed.

28The Request to dismiss the whole Application pursuant to s. 45.1 of the Code is denied. The part of the Application against FCA Canada Inc. that is outside the time period between November 12, 2012 and the date when the applicant would have been bumped from the job for which she had posted shall proceed.

29As the applicant and FCA have agreed to attempt mediation, the Registrar will schedule a date for mediation.

30I am not seized.