The Ontario Human Rights Tribunal has ruled that a disability discrimination and reprisal complaint against Windsor-based Conseil scolaire catholique Providence (CSC) can proceed, while removing individual respondents and the union from the case.
The applicant, M.M., alleges that CSC discriminated against him based on disability and engaged in reprisal contrary to the Human Rights Code. M.M. contends that he has a medical condition and requested workplace accommodation, which the employer did not address. He also alleges that he was subjected to bullying and harassment on March 14, 2019, and that after filing a formal complaint, the individual accused retaliated by making multiple allegations of poor work performance.
M.M. filed a traumatic mental stress claim with the Workplace Safety and Insurance Board (WSIB), which was denied on September 3, 2020. The WSIB concluded that “the events were not traumatic and did not constitute harassment in the workplace.” A reconsideration request was also denied on January 20, 2021.
Additionally, M.M. submitted a complaint to the Ministry of Labour. However, the tribunal noted that “it does not appear that the Ministry of Labour made any orders, decisions or findings in relation to the allegations of harassment in the workplace.”
Through his union, CUPE Local 4299, M.M. filed several grievances related to sick leave, pay, harassment, suspensions, workplace accommodations, and his eventual termination:
- A grievance dated October 2, 2019, concerning sick leave, pay, and harassment, which was withdrawn on June 16, 2020.
- A June 16, 2020, grievance regarding a 10-day suspension that M.M. alleged was reprisal and discriminatory due to his disability.
- A July 29, 2020, grievance about a return-to-work accommodation that allegedly violated the collective agreement and the Human Rights Code.
- Subsequent grievances in 2021 addressing further suspensions, additional tasks assigned, and his termination on May 18, 2021.
These grievances were referred to arbitration, and the parties attempted mediation without success. On October 1, 2021, CUPE withdrew all grievances.
Tribunal removes individual and union respondents
In response to the application before the tribunal, CSC requested a summary hearing to dismiss the case, arguing that M.M. had not shown treatment beyond general dissatisfaction or disagreement. CSC also sought to remove individual respondents—specifically, Robert Roy and St. Thomas Aquinas Catholic Elementary School—from the proceeding. CUPE requested to be removed as a party, contending that there were no particularized allegations against the union beyond general references in the application.
The tribunal considered whether previous proceedings had “appropriately dealt with the substance of the application,” as outlined in section 45.1 of the Code. Regarding the WSIB decision, the tribunal acknowledged that while the board addressed the issue of harassment, it did not cover all allegations, particularly those concerning reprisal and failure to accommodate M.M.’s disability.
“The WSIB has addressed the issue of harassment where they found that general unfairness did not amount to harassment,” the tribunal noted. However, it was “not satisfied that the WSIB has dealt with the substance of all of the allegations in the application.”
Similarly, the tribunal found that the Ministry of Labour had not addressed the substance of the allegations, as there was no final report provided beyond an initial field visit report from May 13, 2019.
Regarding the grievances withdrawn by CUPE, the tribunal concluded that “since the grievances have been withdrawn, I am satisfied that the substance of the allegations has not been addressed through the grievance process.”
In deciding to remove Robert Roy and St. Thomas Aquinas Catholic Elementary School as parties, the tribunal applied factors such as whether a corporate respondent is alleged to be liable for the same conduct and whether any compelling reason exists to continue the proceeding against the personal respondents. The tribunal determined that “any liability that they may have is captured by the respondent CSC” and that “there is no prejudice if they are removed.”
Case proceeds against school board
The tribunal also granted CUPE’s request to be removed as a party. It referenced previous decisions indicating that for a claim against a union for inadequate representation to have a reasonable prospect of success, the applicant must allege material facts showing that the union’s actions were for a discriminatory reason.
“The applicant has failed to provide a link between the grounds of disability and reprisal to how CUPE’s actions amount to inadequate representation or that CUPE’s actions were for a discriminatory reason,” the tribunal stated.
However, the tribunal denied CSC’s request for a summary hearing to dismiss the application. After reviewing written and oral submissions, the adjudicator concluded that “it would be appropriate for the application to proceed to a hearing on the merits with CSC.”
The tribunal noted that under its rules, it “need not give reasons when deciding not to dismiss an application,” and declined to do so.
As a result of the tribunal’s interim decision:
- The application alleging discrimination based on disability and reprisal will proceed against CSC.
- Robert Roy and St. Thomas Aquinas Catholic Elementary School have been removed as parties.
- CUPE Local 4299 has been removed as a party.
The case highlights the tribunal’s careful consideration of whether other proceedings have adequately addressed the substance of human rights allegations and underscores the importance of particularizing claims against unions and individual respondents.
The tribunal’s decision allows M.M. to proceed with his application against CSC, where issues of alleged failure to accommodate and reprisal will be examined in a hearing on the merits.
For more information, see McNeill v. Conseil scholaire catholique Providence, 2024 HRTO 1655 (CanLII).
