Thomas v IATSE Local 461, Shaw Festival Foundation, et al, 2015 HRTO 1425

This is a Request for Reconsideration of an Interim Decision of the Human Rights Tribunal of Ontario (HRTO). The applicant had filed an Application under the Human Rights Code (the “Code“) with respect to allegations of sexual harassment, a failure to respond properly to the allegations of sexual harassment, a failure to accommodate her disability by enforcing an anti-smoking policy, and reprisal. The applicant named multiple respondents, including IATSE Local 461 and several of its representatives (the Union Respondents), Shaw Festival Foundation and one of its representatives (the Employer Respondents) and a personal respondent, Domenic Marcone. After 15 days of hearing, the HRTO issued an Interim Decision in which it dismissed the application against the Union Respondents and the Employer Respondents on the basis that they had no reasonable prospect of success. The Interim Decision did not dismiss the application against Marcone.

In her Request for Reconsideration, the applicant presented four grounds for reconsideration:

    1. The HRTO erred by not applying the established legal test relating to the Employer’s duty to investigate the applicant’s complaints of sexual harassment;
    2. The Interim Decision was in conflict with the established case law concerning the Employer’s duty not to discriminate against an employee on the basis of disability;
    3. The Interim Decision was in conflict with the established case law concerning the Union’s duty to accommodate a member with a disability; and
    4. The HRTO misapprehended some of the facts and evidence.

The HRTO concluded as follows:

    1. The manner in which the applicant communicated the sexual harassment allegations to the Employer did not engage an obligation to investigate her complaints, because the applicant declined to identify the alleged harasser, refused to provide particulars and/or specifically asked that the matter not be pursued. In addition, the applicant acknowledged that she raised the allegations as a means of bartering for a leave that she had been otherwise unable to obtain.
    2. The evidence establishes that when the Employer became aware of alleged violations of its smoking policy, it took them seriously and made further steps to enforce the policy.
    3. The Union did not did not violate the Code when it “unfairly” scheduled two meetings that the applicant was unable to attend. The Union’s constitution did not entitle a person to attend a meeting in which her membership was at issue, and the applicant provided no disability-related reason for her absence from the meetings. The HRTO does not have the power to evaluate general claims of unfairness and the applicant did not demonstrate a connection between this alleged unfairness and the Code. Furthermore, the Union did not fail to accommodate the applicant’s disability in its proposed administration of a trades test. In fact, the Union went to extraordinary lengths to try to address her needs. In addition, these arguments against the Union were raised for the first time in the Request for Reconsideration and could be dismissed on that basis alone.
    4. The applicant failed to establish any factual errors in the Interim Decision, and in any event, she did not submit that any of the alleged errors had a material bearing on the conclusions reached in the Interim Decision.

As a result of these determinations, the HRTO dismissed the Request for Reconsideration.

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English (Canada)