Sanca v. Labourers’ International Union of North America, Local 183, 2016 HRTO 1544

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jose Sanca

Applicant

-and-

Labourers’ International Union of North America, Local 183 and Armando Camara

Respondents

DECISION

Adjudicator: Jo-Anne Pickel

Date: December 1, 2016

Citation: 2016 HRTO 1544

Indexed as: Sanca v. Labourers’ International Union of North America, Local 183

APPEARANCES

Jose Sanca, Applicant

Self-represented

Labourers’ International Union of North America, Local 183 and Armando Camara, Respondents

John Evans, Counsel

Introduction

1In his Application, the applicant alleged that the respondents discriminated against him because of his colour, place of origin, and/or ethnic origin contrary to the Human Rights Code, R.S.O. c. H. 19, as amended (the “Code”). He also alleged that the respondents reprised against him contrary to the Code. The applicant’s main claims appear to relate to dissatisfaction with the representation provided by Labourers’ International Union of North America, Local 183 (“union”). He alleged that the respondents have engaged in reprisal against him for complaining about one of his co-workers who is also a union member.

2By Case Assessment Direction (“CAD”), the Tribunal directed that the matter be scheduled for a summary hearing by teleconference. The parties were directed to address the issue of whether the Tribunal should dismiss the Application on the basis that it has no reasonable prospect of success under the Code. In addition, the Tribunal directed the parties to make submissions in relation to the respondents’ request that the Tribunal remove the personal respondent from the Application.

3The Tribunal held a summary hearing to hear oral submissions on these issues. Having considered the parties’ submissions and the applicable case law, I find that the Application must be dismissed as having no reasonable prospect of success.

Reasonable Prospect of success

Summary Hearing Process

4The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed, in whole or in part, because there is no reasonable prospect that the application will succeed.

5The Tribunal has stated in several decisions that it does not have jurisdiction to address general allegations of unfairness or adverse treatment unrelated to the Code. Many experiences of unfairness, which are not defined as discrimination in the legal sense, can leave a person with significant emotional and financial damage. However, the Tribunal’s jurisdiction is limited to claims of discrimination and reprisal under the Code. Discrimination under the Code generally involves an allegation of adverse treatment because of one or more of the grounds listed in the Code. Adverse treatment is not discriminatory in the legal sense unless there is proof that one or more of the personal characteristics listed in the Code were a factor in the treatment the applicant experienced. In order to establish a claim of reprisal under the Code, applicants must establish that a respondent took actions against them with the intention of retaliating against them for exercising their rights under the Code.

6The 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 or uncontested evidence to the contrary.

7However, 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 supports 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 that may be reasonably available to the applicant to connect the unfair treatment allegedly experienced by the applicant with a ground protected under the Code.

8The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the adverse treatment allegedly experienced by the applicant with the grounds alleged in the application. 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 discrimination on the basis of one of the grounds alleged in the Code.

9Having set out the basic framework for determining whether an application should be dismissed in whole or in part because it has no reasonable prospect of success, I now turn to the facts of this particular case.

Factual Background

10The applicant is a construction worker and member of the respondent union. The allegations in the Application can be summarized as follows:

a. When the applicant complained to the union that a co-worker made a racial slur against him, the respondents told him that the union was not the proper avenue for his complaint and told him he could pursue a complaint to the Tribunal.

b. The union’s business manager did not return the applicant’s e-mails but instead forwarded them to the personal respondent who is a sector coordinator for the union.

c. The union dispatched the applicant to less desirable work assignments after he complained about the racial slur his co-worker made against him.

d. The union did not appropriately deal with the applicant’s complaint that the owner of one of the companies he had been dispatched to yelled at him.

e. The union did not appropriately respond to the applicant’s complaints about the actions of a foreman at one of the sites to which he was dispatched.

11At the summary hearing, the applicant also alleged that he had only worked 14 weeks in 2016 and that he believes this is because the union is reprising against him.

12In the summary hearing, I asked the applicant what evidence he would be in a position to rely upon in a hearing to establish a link between the respondent’s actions and his colour, ethnic origin or place of origin or the Code’s reprisal protections. The applicant responded that he had only worked 14 weeks this year because he had stood up for his rights by complaining about his co-worker. He stated that he does not know why he has only worked 14 weeks but has been told by others that that is what happens when you “go against the union”. In addition, the applicant stated that the matter could have been resolved if the union had told him that the proper step to take was to complain to the employer.

13In the summary hearing, the respondents submitted that the applicant’s allegations are in essence allegations that the respondents failed to represent him fairly. They argued that this is a claim that falls exclusively within the jurisdiction of the Ontario Labour Relations Board. They argued that the applicant failed to put forward any evidence of a link between the respondent’s actions and the Code. Finally, the respondents argued that they conducted an investigation of the racial slur allegedly made against the applicant but could not corroborate it. Based on this investigation, the respondents concluded that there was no reasonable basis for filing a grievance in the matter.

analysis

14The Tribunal has held that it does not have jurisdiction over whether a union has adequately represented a member. The Tribunal has consistently held that even a union’s failure to act on behalf of a member does not by itself amount to a breach of the Code, absent some factual basis to establish discrimination or reprisal. Traversy v. Mississauga Professional Firefighters’ Association, 2009 HRTO 996 at para. 33.

15In the circumstances of this case, I find that the applicant has not pointed to any evidence that could lead the Tribunal to find that the union treated him differently in the representation it provided to him. Even if the applicant had established differential treatment, he has pointed to no evidence that can reasonably link the respondents’ conduct to the grounds of discrimination listed in the Application.

16With respect to the reprisal allegation, I find that the applicant has also not pointed to any evidence that could reasonably establish that the respondents took any of the actions they did as a reprisal for claiming or enforcing his rights under the Code. The instance the applicant pointed to when he claimed his rights under the Code was when he complained to the union about a racial slur made by one of his co-workers. Usually, a claim of reprisal involves a situation where an applicant claimed their rights under the Code against the respondent(s). In this case, the applicant did not make a claim against the union or the personal respondent but instead made an allegation against one of his co-workers. Therefore, it is difficult to see how the applicant was “going against his union”, as he put it, by making his complaint. In any event, the applicant did not point to any evidence, beyond his own suspicions, that could reasonably establish that the respondents took any of the actions it took after June 2015 with the intention of reprising against him for complaining about his co-worker.

17For these reasons, I find that the applicant’s Application has no reasonable prospect of success under the Code. In light of this finding, it is not necessary to address the respondents’ request that the Tribunal remove the personal respondent from the Application.

ORder

18For the reasons set out above, the Application is dismissed.