Davidson v. Ottawa Carleton Association for Persons with Developmental Disabilities, 2017 HRTO 1578

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Laura Davidson

Applicant

-and-

Ottawa Carleton Association for Persons with Developmental Disabilities and CUPE Local 1521

Respondents

INTERIM DECISION

Adjudicator: Romona Gananathan

Date: November 29, 2017

Citation: 2017 HRTO 1578

Indexed as: Davidson v. Ottawa Carleton Association for Persons with Developmental Disabilities

APPEARANCES

Laura Davidson, Applicant

Self-represented

Ottawa Carleton Association for Persons with Developmental Disabilities, Respondent

Leanne Fisher, Counsel

CUPE Local 1521, Respondent

Sue Lott, Counsel

Introduction

1The applicant filed an Application on February 8, 2017 alleging that the respondents discriminated and reprised against her with respect to employment because of her family status, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2By Case Assessment Direction (“CAD”) issued on July 25, 2017, the Tribunal directed that a summary hearing be held to address whether the Application against the respondent CUPE Local 1521 (the “union”) should be dismissed on the basis that there is no reasonable prospect that it will succeed. I note that the respondent Ottawa Carleton Association for Persons with Developmental Disabilities’ (“OCAPDD”) request for dismissal was denied in the same CAD. The matter before me is solely the request by the union requesting a summary dismissal.

3A summary hearing was held by teleconference on October 31, 2017.

4For the reasons set out below, I find that the Application against the union must be dismissed on the basis that it has no reasonable prospect of success.

Summary Hearing Process

5The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) as well as the 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.

6The 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.

7The 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.

8However, and significantly, 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 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. See for example, Dabic v. Windsor Police Service, 2010 HRTO 1994.

9As 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.

10Having set out the basic framework for determining whether an application should be dismissed because it has no reasonable prospect of success, I now turn to the facts of this particular case.

The Applicant’s SUBMISSIONS

11The applicant took an employer-approved family medical leave of absence to care for her father beginning in April 2016. OCAPDD subsequently terminated her employment. She was later reinstated but a non-disciplinary letter of expectation was placed on her file for 18 months.

12The applicant alleges that the union’s actions, in particular its refusal to pursue a grievance on her behalf, amounts to discrimination based on family status.

13At the hearing, the applicant described a number of interactions, including email and text communication with her union representatives, which she alleged were discriminatory. For example, the union asked her to apologize to her employer for not communicating with it earlier, because she was “busy with her dad”. The union's Vice President also emailed her suggesting she tell her employer she did not follow through with her documentation because of her father.

14The applicant considers the union's refusal to pursue her grievance as evidence of hostility or ill will based on family status. The applicant feels unions should be fair in their representation and should not distinguish between grievances. One grievance should not be more important than another. However, the applicant did not dispute the union’s assertions that it continued to represent her with the employer and this resulted in her reinstatement.

15With respect to reprisal, the applicant felt that the union's suggestion she apologize for taking a family medical leave constitutes reprisal for exercising her Code rights.

analysis and Findings

16The applicant’s allegations involve two issues. The first issue relates to the union representatives’ suggestions to provide an apology or explanation to the employer that the applicant had been unable to file her medical documentation due to being busy with her father. The second issue involves the union’s failure to pursue a grievance with respect to the letter of expectation placed in her file.

17In my view, the applicant was not able to point to the evidence she would rely on, beyond her own feelings and suspicions, to establish that the union subjected her to differential treatment because of her family status.

18When asked for specific evidence that she may have that could link the union’s actions to a Code violation, the applicant argued that the union representatives’ suggestions to apologize to the employer were discriminatory because she was asked to explain that she was busy with her father. It seems that the union was acting in the applicant’s interests and, by her own admission, the union was able to secure her reinstatement in her former position. It appears that the union was assisting the applicant to communicate her family status accommodation needs to the employer by providing an explanation for her delay in providing the required medical documentation. These suggestions made by the union do not in my view form the basis of any differential treatment or discrimination under the Code.

19When questioned about what evidence she had with respect to the union’s failure to file a grievance, the applicant was vague and not specific. She argued that there should be no ill will or implied hostility amongst possible grievance issues. She felt there was some reason why her issues related to family status were being treated differently as she felt there was something different about her matter. She contends that everyone else was being treated fairly and with integrity by the union but she was not.

20The applicant’s allegation that the union did not file a grievance is not in and of itself evidence of discrimination contrary to the Code, absent any evidence establishing differential treatment. In Traversy v. Mississauga Professional Fire Fighters’ Association, 2009 HRTO 996, the Tribunal stated as follows at paragraph 33:

Assuming that the Code also applies to this aspect of a union’s relationship with the employees it represents, a claim that the union violates the Code must be based on an assertion of differential treatment, and not simply a failure to act. The failure or refusal to take forward a human rights issue, such as accommodation of a disability in the workplace, is not, in and of itself, a breach of the Code. There may be many reasons that have no discriminatory overtones why a union might choose not to pursue a human rights claim on behalf of an employee: see Baylet v. Universal Workers Union, 2009 HRTO 700. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.

21The union’s position is that the letter of expectation placed in the applicant’s file is not disciplinary in nature and therefore not a grievable issue. Even if it were possible for the union to file a grievance in this matter, the union’s failure to pursue a grievance in this case cannot be construed as a violation of the Code.

22There has to be a factual basis for the claim, and the applicant has not pointed to evidence she could bring forward in a merits hearing to prove a link between the union’s actions and her family status. She has also not pointed to evidence beyond her feelings or suspicions that she could bring in a hearing to prove that the union refused to file a grievance as a reprisal for claiming her rights under the Code. Simply asserting that her potential grievance was not advanced because it was related to her family medical leave is not evidence upon which the Tribunal might find that her family status was a factor on the union’s decision not to file a grievance.

23As noted above, for an application to advance to a full hearing on the merits with respect to a respondent, an applicant must be able to point to some evidence, beyond his or her 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.

24It is clear, based on the facts of this case, that the applicant disagreed with decisions and actions of the respondent union. However, she has not pointed to any evidence upon which she could rely to establish that the union treated her differently because of her family status or a reprisal for claiming her rights under the Code. Consequently, the Application as against the union respondent is dismissed as having no reasonable prospect of success.

Order

25The Tribunal orders the Application as against CUPE Local 1521 is dismissed, and the style of cause amended accordingly.