Bonnici v. United Food and Commercial Workers Union, Local 1000A, 2016 HRTO 1516

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Emy Bonnici

Applicant

-and-

United Food and Commercial Workers Union, Local 1000A and Carmine Fiore

Respondents

DECISION

Adjudicator: Jo-Anne Pickel

Date: November 28, 2016

Citation: 2016 HRTO 1516

Indexed as: Bonnici v. United Food and Commercial Workers Union, Local 1000A

APPEARANCES

Emy Bonnici, Applicant

Anton Bonnici, Representative

United Food and Commercial Workers Union, Local 1000A and Carmine Fiore, Respondents

Elichai Shaffir, Counsel

1The applicant filed an Application alleging that the respondents discriminated against him because of disability contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”). In his Application, the applicant alleged that the United Food and Commercial Workers Union, Local 1000A (“union”) failed to represent him adequately. He also alleged that the respondents failed to accommodate his cognitive disability by permitting his brother to act as his support person and/or agent in dealings with the union.

2Following a preliminary hearing, I found that all of the allegations that related to the union’s failure to adequately represent the applicant had no reasonable prospect of success under the Code. See Bonnici v. Loblaws Inc., 2015 HRTO 1701. In my Interim Decision, I permitted the applicant’s accommodation allegations to proceed to a hearing on the merits.

3At the merits hearing, I heard testimony from Emy Bonnici and Anton Bonnici on behalf of the applicant. I also heard testimony from Carmine Fiore on behalf of the respondents.

4For the reasons that follow, I find that the Application must be dismissed.

Accommodation allegations

5At the preliminary hearing, I asked the applicant’s representative, his brother, to specify the instances when the union refused to permit him to act as his brother’s support person and/or advocate. He referred to two instances. First, he claimed that the respondents refused to permit him to take part in a meeting held between the union and the employer in January 2014. Second, he referred to the union’s position that he should not be permitted to represent the applicant in regards to one of his duty of fair representation complaints to the Ontario Labour Relations Board (“OLRB”). In addition to these two instances, the applicant’s representative stated that the union has never responded to any of the correspondence he has sent on behalf of the applicant.

6At the hearing, the applicant’s representative abandoned the claim in respect to the union’s alleged failure to respond to correspondence he sent on behalf of the applicant. I heard testimony in relation to the two other instances in which the applicant claimed that the respondents refused to permit the applicant’s brother to act as his support person or advocate.

January 24, 2014 Meeting

Evidence

7The applicant is employed as a part-time grocery clerk by Loblaws. He is a member of a bargaining unit represented by the union. The personal respondent is staff representative for the union.

8The applicant and his brother approached the personal respondent with a number of complaints about how the applicant’s employer was treating him. The parties filed a copy of a telephone recording with the Tribunal in which the personal respondent advised the applicant and his brother that he had scheduled a meeting on January 24, 2014 with the applicant’s employer.

9The applicant testified that his brother always attended meetings held between him and his union. He testified that, when both he and his brother arrived for the meeting on January 24, 2014, he was told that his brother could not attend the meeting with him. The applicant could not remember who told him that his brother could not attend, nor could he remember if he was ever told whether it was the union or the employer who refused to let his brother attend.

10At the hearing, the applicant’s brother testified that the personal respondent told him that the employer did not want him to take part in the meeting. This was in direct contradiction to the allegation in the Application, repeated at the preliminary hearing, that it was the union that refused to let the applicant’s brother attend. At the merits hearing, the applicant’s brother took issue with the fact that the union did not object more forcefully to the employer’s refusal to permit him to attend the meeting. He also objected to the fact that the union did not tell the employer that it was participating in the meeting under protest.

11The personal respondent testified that a representative of the employer, J. M., told him that the employer did not want the applicant’s brother to attend the meeting. This is further corroborated by a telephone recording of a discussion between the applicant and his brother a day or two after the meeting in which the applicant’s brother stated “the company did not want me there” in reference to the January 24, 2014 meeting.

Finding

12Based on the evidence summarized above, it is clear that it was the applicant’s employer that refused to permit his brother to attend the January 24, 2014 meeting and not the respondents. I do not agree that it was a violation of the Code for the union to take part in the meeting with the applicant and not to state that it was doing so under protest. The union is the applicant’s bargaining agent. It was fulfilling its duties by representing the applicant at the meeting. It was not a breach of the Code for the union to attend the meeting despite the employer’s refusal to let the applicant’s brother attend.

13For these reasons, the applicant’s allegation in relation to the January 24, 2014 meeting is dismissed.

Duty of Fair Representation Complaint

Evidence

14In its Response to one of the applicant’s duty of fair representation complaints filed with the OLRB, the union’s former counsel stated:

Anton Bonnici is the Applicant’s brother. We note that Anton is not a lawyer or a paralegal, and he is not licensed to practice law or represent any person’s legal interests in Ontario. He is not a member of the Union, nor an employee of the Employer. Furthermore, Anton is not a guardian nor any other form of legally-recognized decision maker for the Applicant. It is the Union’s position that Anton cannot formally represent the Applicant or seek relief on his behalf.

15The personal respondent testified that this paragraph was a legal position that its former counsel included in its OLRB pleadings. The personal respondent, the applicant and his brother all testified that the union did not pursue this position in the proceeding and that the applicant’s brother was permitted to act on the applicant’s behalf in the OLRB proceeding.

Findings

16I find that the respondents did not discriminate against the applicant in relation to the applicant’s OLRB complaint. First, the statement in the union’s Response is covered by the doctrine of absolute privilege. The doctrine of absolute privilege bars legal claims or allegations that relate to statements or actions taken by a respondent or its legal counsel in a previous legal proceeding. The doctrine of absolute privilege applies to written pleadings filed in a legal proceeding. For a discussion of the Tribunal’s application of this legal doctrine, see for example Cordero v. Hydro One Networks Inc., 2015 HRTO 1312.

17Second, it was not disputed that, despite the position the union took in its pleadings, it did not pursue this position during the OLRB proceeding. All witnesses agreed that the applicant’s brother represented him in the OLRB proceeding without objection from the union.

18For these reasons, the applicant’s allegation in relation to the duty of fair representation complaint is dismissed.

order

19For the reasons set out above, the Application is dismissed in its entirety.