Osei v. Waste Management of Canada, 2016 HRTO 841

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

William Osei

Applicant

-and-

Waste Management of Canada, Declan Palmer and

Teamsters Local Union No. 419

Respondents

DECISION

Adjudicator: Bruce Best

Date: June 23, 2016

Citation: 2016 HRTO 841

Indexed as: Osei v. Waste Management of Canada

APPEARANCES

William Osei, Applicant

Self-represented

Waste Management of Canada and Declan Palmer, Respondents

Marcie Smith, Representative

Teamsters Local Union No. 419, Respondent

Mireille Giroux, Counsel

Introduction

1This Application alleges discrimination with respect to employment, contracts and/or membership in a vocational association because of race and colour contrary to the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”).

2By Case Assessment Direction (“CAD”), the Tribunal directed that a summary hearing be held to address whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed, that some or all of the allegations may be out of time, and/or that the allegations may have been appropriately dealt with through related grievances. A hearing was held by teleconference on February 23, 2016.

3As explained more fully below, I find that the Application must be dismissed against all the respondents.

4The Application against Waste Management of Canada (“the company”) and the individual respondent must be dismissed as the allegations are out of time. The allegations are only with respect to incidents that occurred in 2007, and the applicant has not been able to provide any reason to justify extending that time under the Code.

5The Application against Teamsters Local Union No. 419 (“the union”) must be dismissed on the basis that it has no reasonable prospect of success under the Code. Even if I accept all of the facts alleged by the applicant as true, the applicant has not been able to point to any evidence beyond his own suspicions or beliefs that support his allegations that the union discriminated against him on the basis of his race or colour.

Factual Background

6The applicant claims that he went to apply for a position as a driver with the company when it was conducting interviews in February 2007. He claims that the company hired white applicants directly, but would tell racialized applicants, including himself, that they had to apply through a temporary agency. This allegation is vehemently denied by the company. The applicant did go to the agency and claims he started doing work for the company, as an employee of the agency, in late February 2007.

7The company and the union claim that he did not start work at the company through the agency until May 31, 2007. For the purposes of this decision, however, I will assume without deciding that the applicant’s version of facts is true, and that he worked at the company as an employee of the agency from February to November 2007, at which point he became a direct employee of the company.

8The applicant claims that if he had been hired directly by the company, rather than through the agency, he would have received a higher rate of pay and have been entitled to additional benefits for the period from February to November 2007. He also claims that under the collective agreement he should have become a direct employee of the company after three month’s working through the agency.

9The issues respecting the hiring date and the losses he allegedly suffered as a result were the subject of various grievances, the first of which was filed in 2012, and the last of which was ultimately dropped in 2014. The applicant indicated at the hearing that he strongly believed in the union process, so did not take any steps prior to the grievance being dropped to pursue his rights at the Tribunal. The Application was filed on January 1, 2015.

10The applicant alleges that the union delayed in addressing his grievances, and claims in the Application

Teamster Local 419 has been aware of this problem right from the beginning chose not to do anything about It despite my persistence request through the union for the matter to be resolved. And as the only black African among the group, I could not think of any meaningful reason for this problem to be unsolved beside my colour.

11All the respondents deny the allegations of discrimination.

Analysis and Decision

Allegations against the company

12The main issue with the allegations against the company is that they are out of time. Sections 34(1) and (2) of the Code read as follows:

34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

13The alleged incidents of discrimination against the company are all based on the hiring process and his transfer from agency worker to employee of the company, which occurred in November 2007. These events of 2007 are all clearly outside the one year limitation period under s.34(1).

14The applicant claims that the 2007 delay in his becoming an employee has a continuing adverse effect on him; in particular, since filing the application he has apparently been laid off, and because the date used to calculate his severance pay was November rather than June, he is now entitled to a lower severance payment than he believes he is otherwise entitled to.

15There is a distinction, however, between ongoing discrimination and a continuing effect of an allegedly discriminatory incident. See Garrie v. Janus Joan Inc., 2012 HRTO 1955 at para 39, where the Tribunal stated:

. . . [T]o establish that an occurrence is an incident of discrimination (as opposed to merely the continuing effects of an incident), a party must point to acts of alleged discrimination which could be considered as separate contraventions of the Code. At this stage of the inquiry, the focus is on whether the last conduct complained of could, on its own, support a finding of discrimination.

16And at paragraph 41:

Thus, allegations concerning a discrete, non-continuing violation (such as the imposition of discipline or the failure to promote or hire) may have ongoing consequences but, without more, do not amount to a series of incidents within the meaning of the Code because they do not involve any fresh steps taken past the initial alleged incident of discrimination. Similarly, without more, the fact that a respondent maintains a decision it has already taken does not involve a fresh step, nor does it give rise to a separate breach of the Code.

17Even accepting the applicant’s allegations that there was a discriminatory reason for him being initially referred to the employment agency, the limitation period under the Code began to run on the date he actually became a direct employee of the company. Any events beyond November 2007 are continuing effects of the company’s decision not to hire him directly, and are not further incidents of discrimination that would extend the limitation period.

18Based on the above, I find that the alleged discrimination ended when the applicant became a direct employee of the company in November 2007, and as such the Application was not filed within the one year time period required under s.34(1).

Section 34(2)

19With respect to s.34(2), the applicant’s only explanation for not filing an application sooner was that he had respect for the grievance process, and did not want to “take the case” from the union.

20The Tribunal has consistently held that waiting for other legal proceedings to conclude will not in and of itself constitute a good faith reason to justify the late filing of an application under s.34(2). See Mu v. Cargill Foods, 2011 HRTO 846 at paras. 38-42, Abutalib v. Toronto Police Services Board, 2010 HRTO 1697, at paras.15-20, and Hollett v. Unifor, 2015 HRTO 29, at para. 24. The applicant has not provided any basis on which to depart from the approach in the above decisions.

21For the above reasons, the Application against the company and individual respondent is dismissed.

Allegations against the union

22It is clear that the applicant was unhappy with the representation he received from the union, and felt that the union did not take prompt or appropriate steps to address his allegations of discriminatory conduct against him by the employer. The failure of a union to take action with respect to allegations of discriminatory conduct is, however, not itself a breach of the Code; there must be a factual foundation for the claim that the union’s actions were based on discriminatory factors. See Traversy v. Mississauga, 2009 HRTO 996 at para. 33.

23As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, 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 a breach of the Code.

24The issue, then, is not whether the union took appropriate steps under the collective agreement, but whether there is any basis to find that its decisions to act, or failure to act, were based on discriminatory factors.

25At 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 evidence to the contrary or the evidence is not disputed by the applicant. For the purposes of the present case, this means I will assume without determining that the union, as alleged by the applicant, did not appropriately address his concerns.

26Significantly, however, accepting that the union acted improperly does not include accepting the applicant’s assumptions about why they did so. The purpose of the summary hearing is to determine whether the applicant is able to point to any information which tends to support his belief that he has experienced discrimination under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any evidence, or any evidence that may be reasonably available to the applicant, to connect the unfair treatment allegedly experienced by the applicant with the Code’s protections.

27The allegations against the union are that the delays in pursuing his grievances, and the ultimate decision to withdraw them, were because of racial discrimination. The only basis the applicant claimed for this allegation in the Application was, as set out above, that he could not think of any meaningful reason for this problem to be unsolved beside his colour.

28At the summary hearing, when asked directly on this issue, the applicant was not able to point to any information or evidence, beyond his own feelings and beliefs, that would support his allegations that the delays or difficulties in having his issues addressed through the grievance process were based on his race.

29As noted above, for an application to advance to a full hearing on the merits, an applicant must be able to point to some evidence, beyond his own suspicions, that could make out a link to the Code. The Tribunal has repeatedly said that an applicant’s belief, no matter how strongly held, is not evidence upon which the Tribunal might find that discrimination has occurred. See for example Leong v. Ontario (Attorney General), 2014 HRTO 311.

30For the above reasons, I find that the Application has no reasonable prospect of success against the union, and must be dismissed.

Order

31The Application is dismissed.