Anti-Black Racism and Racial Harassment in the RCMP Hearings continues in 2004 - clink on lik for detailsIn Toronto Board of Education, a case where an African Canadian worker alleged that he has been subjected to racism, unsafe working conditions, lack of training, lack of personal protective equipment, defective machinery and reprisal actions in contravention of section 50 of the OHSA, the Labour Board has refused to hear factual and opinion evidence about the health and safety effects of racism in the workplace and has deferred the case to the Ontario Human Rights Commission in keeping with Meridian.
The applicant in Toronto Board of Education had filed an application for reconsideration and a Notice of Constitutional Question in effect arguing that the OLRB exercised its discretion under subsection 50 (3) of the OHSA in a manner which denied him his right to equal protection and benefit of the law, contrary to section 15 (1) of the Charter of Rights and Freedoms.
This reconsideration hearing took place on Tuesday September 23, 1997 at 9:30 a.m., at 400 University Avenue, 6th Floor, Toronto, Ontario. On January 15, 1998, the Ontario Labour Relations Board has released its reconsideration decision in Toronto Board of Education dismissing the applicantion for reconsideration on the basis that "racialized" complainants whose complaints are prinicpally about racial discrimination is not "similarly situated" as "other" "non-racialized" complainants. The Board then concluded that its exercise of discretion is not in violation of section 15 of the Charter of Rights and Freedoms or sections 1, 9, and 11 of the Ontario Human Rights Code.
An Application for Judicial Review of the OLRB decision was filed on May 15, 1998.
On September 22, 2000, Justice Susan Lang of the Divisional Court heard a motion brought by the Toronto Board of Education and supported by the Ontario Labour Relations Board that the Application for Judicial Review by quashed on the basis of the 28 month delay in perfecting it. After hearing arguments on the motion Justice Lang dismissed the motion and reserved on cost to the panel which will hear the application on the merits.
The hearing on the merits of the Application for Judicial Review took place on Thursday November 06, 2000, at 10 a.m. at the Divisional Court, Courtroom 3, 60 Queen Street West, Toronto and on November 10, 2000 the Divisional Court released its decision upholding the decision of the OLRB
[See, Pieters v. Toronto Board of Education(1997) OLRB Rep. May/June 541 Board declining to inquire into application under OHSA| Pieters v. Toronto Board of Education(1998) OLRB Rep. Jan/Feb. 104 Request for reconsideration dismissed | Pieters v. Toronto Board of Education[2000] O.J. No. 3913 Motion to dismiss applicant’s judicial review application for delay dismissed by Divisional Court | Pieters v. Toronto Board of Education[2000] O.J. No. 4314 Application for judicial review dismissed by Divisional Court | Pieters v. Toronto Board of EducationApplication for Leave to Appeal to the Ontario Court of Appeal].
In the case Helen Lee v. Toronto Hydro, a case of an employee of Chinese origin who alleges that she has been subjected to racism and reprisal actions under section 50 of the OHSA, the Labour Board has directed her to "file written submissions showing cause why the Board should in this case not defer to the Commission in keeping with Meridian and Toronto Board of Education. The Board has released its decision in this matter. In dismissing Ms. Lee's application, Vice-Chair Whitaker issued the following reasons:
Should the Board exercise its discretion to inquire into this matter where it would not otherwise, only because the Ontario Human Rights Commission has deferred to the arbitration process and the applicant has abondoned her attempts to proceed to arbitration? In my view it should not. It is difficult on any reading of the application, to see how the Commission could have concluded that the matter is dealt with more appropriately by arbitration, particularly when CUPE who had carriage of the grievances, had decided not to proceed with them at the time that the Commission dealt with the issue of deferral. Right or wrong, the Commission's decision in this regard is not binding on the Board. If the Board were to proceed with the present application on this point, it would in fact be permitting the Commission to decided how the discretion to inquire under section 50(3) of the OHSA should be exercised. In other words, the decision as to whether the Board should inquire or not, would be depended only upon whether the Commission would proceed with the complaint before it....For these reasons, the matter is dismissed.Notwithstanding the decisions of the Ontario Labour Relations Board, refusing to take jurisdiction of Ms. Lee complaint on the basis that the Human Rights Commission is the more appropriate forum, the Commission dismissed Ms. Lee's human rights complaint under section 34 of the Code claiming that an arbitrator under the Labour Relations Act is the more appropriate forum to deal with her complaint.
Helen Lee's application for judicial review of the OHRC decision was dismissed by MacFarland J.
An application for leave to appeal in Lee, Helen Fung Man v. Ontario Leave Human Rights Commission et al, M26541 was heard in writing on January 15, 2001 before Justice George Finlayson, Justice Rosalie Abella and Justice Kathryn Feldman.
In a 27 page decision dated December 22, 1999, in the matter of Nicole Curling v. Alexander Torimiro, Katherine Laird, sitting as a Board of Inquiry, under the Human Rights Code, found “that Torimiro engaged in a course of conduct in respect to the complainant which included sexual touching and kissing and the persistent pursuit of a sexual relationship.” The Board found that “Torimiro created a workplace atmosphere which was uncomfortable for the complainant by, for example, commenting frequently on her clothing and body; by making excessive demands on her to spend time with him at work and outside the office; by repeatedly discussing his own sexual relationships and those of Curling’s co-workers; and by asking her personal questions, including whether or not she was dating. (Decision No. 99-016, p. 18 - 19) The Board also found that “Torimiro served Curling with a Statement of Claim seeking $1.5 million for damages to reputation arising out of this complaint and did so in a manner that was intended to intimidate her.” Further the Board found that Torimiro “made threatening statements in correspondence, which statements were intended to discourage Curling, and her witnesses, from participating in this hearing.” (Decision No. 99-016, p. 19)
On October 20th, 1996 the Ontario Labour Relations Board ruled in Au v. Lindhurst Hospital, that sexual harassment can constitute a hazard under the Occupational Health and Safety Act, for the purposes of a s. 50(1) application where there was reprisal against an employee for seeking enforcement of the Act.
Pauline Au's case was completed on February 03, 1996 and a decision in this matter has now been rendered. It has been established that Ms. Au was subjected to sexual harassment in the workplace. However, a nexus between her dismissal and the claims of sexual harassment was not established. The Board dismissed Au's complaint on the basis that her dismissal by the employer was not motivated by a anti-health and safety animus.
In another case, Patricia Musty v. Meridian Magnesium Products Limited, brought by Patricia Musty against her employer, the Ontario Labour Relations Board declined to enquire into Musty's complaint of sexual harassment and deferred the matter to the Ontario Human Rights Commission (as Ms. Musty had filed a complaint on the same facts before the OHRC). This case is now the subject of a Judicial Review Application
[See, Musty v. Meridian Magnesium Products Ltd.[1998] O.H.R.B.I.D. No. 20| Musty v. Meridian Magnesium Products Ltd.[1998] O.H.R.B.I.D. No. 5 | Musty v. Meridian Magnesium Products Ltd.[1998] O.H.R.B.I.D. No. 2 |]
In Roza Radin v. Local 181, Bakery Workers' Union the Ontario Labour Relations Board will hold a hearing on Wednesday February 4, 1998 in this matter. In Roza's case, the sexual harassment she allegedly experienced was part of a larger pattern of harassment which included being yelled at and screamed at, being criticized in front of other persons in the office, being subjected to false accusations of incompetence, being overworked and manipulated and finally being dismissed on trumped-up charges. The dismissal took place after Radin decided to stand up to the employer and refused to agree to withdraw allegations against him.
The Bakery Workers' Union has brought a motion to block the hearing on the merits and will seek to have the case referred to the Human Rights Commission, Since the cash-starved Commission holds hearings in less than 3% of its cases, this would relegate Roza's complaint to oblivion. The OLRB has dismissed Ms. Radin case for the same reasons enunciated in the Meridian decision.
In A. Simon v. Ministry of the Solicitor General and Correctional Services, Toronto Jail Mr. Anthony Simon is a Correctional Officer with the Ministry of the Solicitor General and Correctional Services filed a complaint with the Ontario Labour Relations Board because of the continued presence of "KKK" signs at the Toronto (Don)Jail, the negative effects on his health and safety including high blood pressure, anxiety attacks and reprisal action from management after he objected to the health and safety hazards at the Toronto Jail. The OLRB has convened a hearing which is scheduled for December 16th and 17th, 1998 at 9:30 a.m., at 400 University Avenue, 6th Floor, Toronto, Ontario
In Jacklyn Silveira-Griffiths v. Ontario Human Rights Commission the applicant, a Human Rights Officer with the Commission, filed a section 50 application alleging that the Commission engaged in a course of reprisal conduct under the OHSA because she complained to her employer about racial discrimination and harassment, which she stated constituted a hazard to her health and safety in the workplace. The Human Rights Commission, a body, which has statutory responsibility under the Ontario Human Rights Code has not yet responded to this complaint - however, it is proceeding through the normal course at the OLRB. Readers will be updated on any new developments.
On Thursday November 13, 1997, the Labour Board heard preliminary arguments from the Human Rights Commission seeking an order that Ms. Silveira-Griffiths case against the Human Rights Commission, alleging health and safety reprisals in her employment as a Human Rights Officer at the Toronto West Office, be dismissed on the basis of (1) delay in filing the application; (2) a lack of particulars; and (3) deferral to the Human Rights Commission as the applicant had already filed a complaint in that forum. The Ontario Labour Relations Board has reserved itself on a decision - and in due course will issue its decision in writing - subject to one caveat, the Board has indicated that it will not be necessary to issue a decision in this matter if the parties can negotiate a settlement before March 1998. The Parties in this case has agreed to a settlement.
In the case of Margaret Chan v. Ontario Hydro the Ontario Labour Relations Board has refused to look into her complaint alleging harassment and reprisal actions in violation of the OHSA on the basis that the employer and Chan's bargaining unit are engaged in greviance arbitration process. The Labour Board stated that it will not look into Chan's allegations until the position of the employer and the Union is made clear to the Board. The Union and the Employer has settled Ms. Chan's grievance, without her participation in the settlement discussions. Having regard to this new development, the Legal Representative of Ms. Chan, and Counsel for Ontario Hydro requested that the Ontario Labour Relations Board rule on the outstanding issues remaining in the Chan case. On August 29, 1997, the Board dismissed Chan's application and in effect deferred it to the Commission in keeping with Meridian
In P. Duggan and Corporation for the City of Scarborough the responding party brought a preliminary motion to dismiss Ms. Duggan's section 50 Application on four grounds. The primary ground of the responding party was that the applicant failed to demonstrate a prima facie case. The responding party took the position that "based on the allegations outlined in the applicant's own pleadings (if accepted only for purposes of the argument) it did not appear that the applicant had not raised a health and safety concern during the course of her employment, notwithstanding that for a period of time, she was represented by counsel. The issue of an alleged breach of the OHSA was raised for the first time by her agent, in May 1997, in the pleadings filed with the OLRB, notwithstanding that events complained of allegedly occurred between Dec 1995 and May 1996." The Ontario Labour Relations Board has released a decision on December 15, 1997 dismissing this matter on the basis that it is more appropriately before the Ontario Human Rights Commission.
While in the case of Ruth Kidane v. Centro Donne Inc. where Ms. Kidane a counsellor in a health clinic alleged that excessie workload and/or work-related stress should be construed as a hazard under the OHSA. Ms. Kidane alleged that she was dismissed for engaging in a work refusal. The OLRB concluded that Ms. Kidane had no right to refuse to wrok under the OHSA and the the decision to terminate her employment was not motiated in any way by haing engaged in work refusal. Board felt action of employer in this case was justifiable and did not modify the penalty.
In Teresita Lanuza v. Toronto Hospital the applicant filed a s. 50 application alleging "a course of reprisal", including discharge, as a result of her complaints to her employer about racial discrimination and harassment, which she stated constituted a hazard to her health and safety in the workplace. The Ontario Labour Relations Board conducted a hearing on preliminary motions by the employer, in the result dismissing the applicant's complaint on the basis that she had already made an election to proceed through the grievance and arbitration process - provided for under the Collective Agreement. In addition, the OLRB also dismissed the complaint because of "undue delay" in filing the application.
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