Bonnici v. United Food and Commercial Workers Local 1006A, 2017 HRTO 1171

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Emy Bonnici

Applicant

-and-

United Food and Commercial Workers Local 1006A

Respondent

DECISION

Adjudicator: Esi Codjoe

Date: September 8, 2017

Citation: 2017 HRTO 1171

Indexed as: Bonnici v. United Food and Commercial Workers Local 1006A

APPEARANCES

Emy Bonnici, Applicant

Anton Bonnici, Representative

United Food and Commercial Workers Local 1006A, Respondent

Elichai Shaffir, Counsel

Introduction

1The applicant filed an Application alleging that the respondent discriminated against him with respect to employment because of disability, 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, in whole or part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

3As outlined below, I find that the Application 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 that the respondent discriminated against him on the basis of disability.

Summary Hearing Process

4The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding and usually before a Response is filed, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

5The Tribunal cannot address allegations of unfairness that are unrelated to the Code. The Tribunal’s jurisdiction is limited to claims of discrimination that are linked to the protections set out in 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 evidence to the contrary or the evidence is not disputed by the applicant.

7The purpose of the summary hearing is to determine if the applicant is able to point to any information which tends to support 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, 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.

8As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 (“Forde”), 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.

FACTUAL BACKGROUND

9The applicant describes himself as a person with a cognitive disability. He works at a Loblaw’s grocery store, a location for which the respondent union holds the bargaining rights for certain employees. The applicant is a member of the respondent’s bargaining unit. On November 29, 2016 he attended a union general meeting for all local members. The purpose of the meeting was to discuss general union business; namely matters of interest to the members of the union’s local. The applicant’s brother, Anton Bonnici, began to speak to issues pertaining to his brother’s employment. One of the union’s directors interrupted Mr. Bonnici and advised him that the meeting was not the appropriate forum to discuss the applicant’s specific concerns.

10The applicant asserts that this conduct constitutes a breach of the Code and the terms of a previous Tribunal decision between the parties; namely Bonnici v. United Food and Commercial Workers Union, Local 1000A (“Bonnici #1”), 2016 HRTO 1516. Bonnici #1 concerns the union’s alleged failure to permit the applicant’s brother to act as his representative in his dealings with the union. The facts in that case relate to an incident in 2014, and a legal position advanced by the respondent in its pleadings in an Ontario Labour Relations Board (“OLRB”) complaint.

11The applicant also asserts that the respondent behaved in a discriminatory manner when it refused to address his concerns at the general meeting. Further, the applicant seeks to revisit the findings in Bonnici #1, and to discuss the facts that were the subject matter of a second Tribunal hearing between him and his employer, Tribunal file number 2015-19906-I (“Bonnici #2”). A merits hearing was conducted for Bonnici # 2 on May 15, 2017 and a decision is pending. In Bonnici #2 the respondent is Loblaw’s and the applicant asserts that Loblaw's failed to accommodate his disability.

12The respondent submits that the only allegation that is properly before me is the November 29, 2016 incident. It describes a union general meeting as one that includes union members from a number of different employers and sectors. As such, the meeting is not specific to a particular store or sector. The respondent submits that a general union meeting is not the place to discuss matters that are specific to one individual, and/or that may be the subject of litigation. The applicant and his representative were advised of this fact at the meeting. The respondent submits that no one told the applicant that he could not speak, just that the meeting was not the appropriate venue to have his desired discussion. The respondent asserts that the applicant has not established that this incident is anything other than a complaint about general unfairness.

13Next, the respondent notes that the applicant cannot re-litigate the issues complained about in Bonnici #1 or Bonnici #2, as each matter has either been finally disposed of (Bonnici #1), or has a decision that is pending (Bonnici #2). Further, it notes that the appropriate forum for complaints about a union’s obligations to its member is the OLRB.

ANALYSIS

No Reasonable Prospect of Success

14Even if I accept the facts put forward by the applicant as true and provable, I must find that the Application stands no reasonable prospect of success under the Code.

15The Tribunal has explained its approach when determining whether an application has a reasonable prospect of success after a summary hearing. In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paragraph 8, the Tribunal reasons as follows:

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.

16The applicant has not been able to point to any evidence he could call in a hearing that could reasonably support an inference that he was subject to discrimination based on disability at the general meeting. He was not able to point to any evidence of discrimination based on disability beyond the fact that he is a person with a disability. Nor was he able to point to any evidence that he could obtain that could suggest a link between the events at the meeting and discrimination based on disability.

17Next, the applicant seeks to revisit the facts articulated in Bonnici #1, by way of a new application based on the same facts. Bonnici #1 has been finally determined. If the applicant wished to dispute that decision, he was free to request a reconsideration of it within 30 days of the decision pursuant to Rule 26 of the Rules. Consequently, I do not have the jurisdiction to reconsider Bonnici #1 in this Application.

18Similarly, I also do not have the jurisdiction to consider the allegations that the applicant has raised in Bonnici #2. That case was recently heard, has a different respondent, and is in the process of being decided. The applicant’s allegations will soon be addressed by way of a decision, and as such there is no principled reason why these allegations should be re-litigated in this Application. In fact, to do so could amount to an abuse of process.

19There is no reasonable prospect that the applicant will be able to establish that he was subject to discrimination on the basis of disability. The mere fact that the applicant has a disability is not enough to establish a link between the respondent’s actions and his disability.

Order

20For the above reasons, the Application is dismissed.