Fred Sadori v. UNIFOR Local 2025, 2016 HRTO 760

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Fred Sadori Applicant

-and-

UNIFOR Local 2025 Respondent

DECISION

Adjudicator: Laurie Letheren Date: June 3, 2016 Citation: 2016 HRTO 760 Indexed as: Sadori v Unifor Local 2025

APPEARANCES

Fred Sadori, Applicant Sherry Tingley, Representative

UNIFOR Local 2025, Respondent Christine Johnson, Counsel

BACKGROUND

1The applicant alleges he experienced discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The respondent named in his Application is his former union.

2At the time relevant to the allegations made in this Application, the applicant was working 3 days a week as a form of disability-related accommodation. The applicant alleges that on or about July 8, 2014, the applicant had a meeting with his supervisor and it was agreed that the applicant would travel to an out of town convention on July 14, 2014.

3The applicant alleges that in the morning of July 14, 2014, he received an email, which was confirmed in a letter received the same day, from his employer’s operations manager which advised him that he needed to provide the employer with a note from his doctor to confirm that attending the convention was within his medical restrictions. He states that the union advised him that he should obtain such a note.

4The applicant provided the medical note, re-arranged his travel plans and attended the convention. During the convention, the applicant was promoted to the position of Senior Labour Relations Officer which meant he was no longer a member of the respondent union.

5The applicant alleges he later found emails between the employer and his union representatives that he claims demonstrate the respondent collaborated to discriminate against him. He claims that the emails demonstrate the respondent took the position that the employer’s actions were reasonable and facilitated the discrimination by helping to formulate the letter that was sent to him on July 14, 2014.

6The applicant further alleges that on December 8, 2014, he and his employer reached a settlement of a grievance he had filed on July 10, 2014 alleging he had experienced a human rights violation. He claims that the respondent’s representative was creating barriers to the settlement, was not representing his best interests and was a party to the discrimination by the employer.

7The respondent has made a Request for Order During Proceedings (Request) to dismiss the Application on the basis that the applicant had no reasonable prospect of demonstrating its actions are a breach of the Code.

ANALYSIS

8Rule 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. 8-10:

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 respondent also submits that this Application is essentially a complaint that it breached its duty to fairly represent the applicant and that the Tribunal does not have the jurisdiction to address such a complaint. 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.

11The respondent submits that the applicant has not presented any facts that could be found to demonstrate that it caused or contributed to the alleged discrimination. The respondent claims that in encouraging the applicant to comply with the request for the doctor’s note, it was acting in good faith and supporting the applicant in facilitating the employer’s efforts to meet its obligations to accommodate him. The respondent claims that it was fulfilling its obligation to ensure that the employer understood the applicant’s restrictions and ensuring that his attending the convention would be within the restrictions.

12The respondent submits that sections 74, 96, and 114 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A give the Ontario Labour Relations Board (OLRB) jurisdiction over the allegations made in this Application. The respondent referenced the Ontario Court of Appeal’s decision in Myrtezaj v. Cintas Canada Limited, 2008 ONCA 277 at paragraph 33, to support its position that the OLRB has exclusive jurisdiction over all questions of fact and law relating to union representation of its members.

13The applicant cites Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970, to support his claim that in assisting in the drafting and the delivery of the letter on July 14, 2014 the respondent contributed to the discrimination. In Renaud, the Supreme Court explains that a union may become a party to discrimination in two ways:

a. it may cause or contribute to the discrimination by participating in the formulation of the work rule that has the discriminatory effect on the complainant.

b. it may be liable if it impedes the reasonable efforts of an employer to accommodate.

14The applicant referred to Thompson v. 1552754 Ontario Inc., 2013 HRTO 716 (“Thompson”); and Black v. Etobicoke Ironworks, 2010 HRTO 2082 (“Black”) to support his claim that it was discriminatory to ask him to provide the medical note and to advise that he would not be able to attend the convention until he had such a note.

15The respondent submits, and I agree, that this Application can be distinguished from the situations in Thompson and Black, above. In those Applications, it was the employer who was the respondent found to be liable for the discrimination.

16In this Application, it was not the respondent who was requesting the medical letter or advising the applicant that he could not attend the convention until he had medical clearance. The evidence that the applicant has to support his allegations of discrimination could, at most, demonstrate that the respondent assisted in communicating the employer’s demands. The decisions or actions cannot be attributed to the respondent.

17The applicant argues that even if the respondent had not supported the requirement of additional medical documentation, it should have taken steps to remove or alleviate the discriminatory effect of this requirement. Again I find that this could not amount to a finding of discrimination under the Code, but is an allegation of failure to fairly represent him.

18In my view, based on the facts as alleged by the applicant, he has no reasonable prospect of demonstrating that the actions of the respondent were a breach of his Code rights. In order to find a breach of the Code, there must be a demonstration of differential treatment. I do not find that assisting in communicating the employer’s demands is differential treatment. The respondent did not participate in the formulation of a discriminatory work rule as the applicant claims.

19The applicant further alleges that the respondent’s representative put up barriers to the agreement he reached with the employer in the grievance filed on July 10, 2014. He alleges that the representative said he “felt dirty” upon signing the agreement. Again, I do not find that if proven this would amount to discrimination under the Code. There must be facts presented that could demonstrate the link between the respondent’s actions during the signing of the agreement and the applicant’s 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.

20For these reasons, the Application is dismissed.

Removal of personal respondent

21The respondent had also made a Request for removal of the personal respondents. Having determined that the Application is dismissed, there is no need for the Tribunal to address this Request.

ORDER

22The Application is dismissed.