Gonzales v. Bombardier Transportation Canada Inc., 2016 HRTO 1340

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Gonzales Applicant

-and-

Bombardier Transportation Canada Inc. and Teamsters Canada Rail Conference – Division 660 Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee Date: October 14, 2016 Citation: 2016 HRTO 1340 Indexed as: Gonzales v. Bombardier Transportation Canada Inc.

APPEARANCES

John Gonzales, Applicant Patricia Teslenko, Representative

Bombardier Transportation Canada Inc., Respondent Michael Horvat, Counsel

Teamsters Canada Rail Conference – Division 660, Respondent Laura Reaume, Representative

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 Bombardier Transportation Canada Inc. (the “corporate respondent”) discriminated against him with respect to employment, and Teamsters Canada Rail Conference – Division 660 (the “union respondent”) discriminated against him with respect to membership in a trade union, because of his race, colour, ethnic origin, family status, and marital status.

2The purpose of this Decision is to decide whether the Application against the union respondent should be dismissed on a preliminary basis because it is has no reasonable prospect of success. The parties attended a summary hearing where they had the opportunity to make oral submissions and present documents and cases which addressed this issue. I have decided to dismiss the Application against the union respondent. The following are my reasons.

BACKGROUND

3The applicant was employed by the corporate respondent, and was a member of the union respondent. Between June 2013 and January 2014, the corporate respondent disciplined the applicant on several occasions for being late for and absent from work. On January 21, 2014, the corporate respondent terminated the applicant’s employment.

4The union respondent subsequently filed a grievance on the applicant’s behalf. The corporate respondent denied the grievance. The union respondent did not refer the grievance to arbitration.

5On May 25, 2015, the applicant filed an Application with this Tribunal. He made the following allegations against the union respondent:

• He told his union representative that other employees were also late, but the representative never raised this with the corporate respondent.
• His union representative did not attend the meeting with the corporate respondent where his employment was terminated.
• The union respondent did not refer his grievance to arbitration.

6On June 16, 2015, the Tribunal issued a Case Assessment Direction, which directed that a summary hearing be held to address whether the Application against the union respondent should be dismissed on the basis that it has no reasonable prospect of success.

7The summary hearing took place on November 26, 2015.

ANALYSIS

8Rule 19A of the Tribunal’s Rules of Procedure 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.

9The 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.

10The Tribunal has consistently held that a union’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.

11In his submissions, the applicant simply repeated the allegations that were in his Application. He did not allege, or point to evidence that he has or that is reasonably available to him that can show, that the union respondent’s failure to act on his behalf was linked to his race, colour, ethnic origin, family status, and marital status.

12The Application against the union respondent is therefore dismissed as having no reasonable prospect of success. The title of proceeding shall be amended accordingly.

13With respect to next steps, I have noted that the applicant never filed a Reply to the corporate respondent’s Response to his Application. In its Response, the corporate respondent requested that the Application be dismissed on a preliminary basis because it is untimely.

14On July 23, 2015, the Tribunal sent a Delivery of Response letter to the applicant, which attached the Response, and directed him as follows:

Rule 9.1 of the Human Rights Tribunal of Ontario’s (HRTO) Rules of Procedure requires an applicant who intends to prove a version of the facts different from those set out in a Response to include those facts in the Reply, unless that version of facts is already set out in the Application. An applicant may also file a Reply to respond to new matters raised in the Response.

The Reply (Form 3) must be delivered to the other parties and any organization or other person identified as an affected person in the Application or Response, and filed with the HRTO, along with a completed Statement of Delivery (Form 23), not later than August 6, 2015.

[Emphasis added]

15To date, the applicant has not filed a Reply. Therefore, as things stand, despite the direction in the Tribunal’s Delivery of Response letter, the applicant has not disputed the corporate respondent’s version of facts and submissions that the Application is untimely.

16In the circumstances, within two weeks of the date of this Interim Decision, the applicant shall file written submissions which address the corporate respondent’s request that the Application be dismissed on a preliminary basis because it is untimely.

17If the applicant fails to file submissions, the Tribunal may decide the timeliness issue based on the corporate respondent’s version of facts and submissions, or dismiss the Application as abandoned.

ORDER

18The Tribunal makes the following order and direction:

1. The Application against the union respondent is dismissed.
2. Within two weeks of the date of this Interim Decision, the applicant shall file written submissions, which address the corporate respondent’s request that the Application be dismissed on a preliminary basis because it is untimely.