The Human Rights Tribunal of Ontario has gone farther than it needed to in Kacan v. Ontario Public Service Employees Union.

In its concluding remarks in this case, the Tribunal appears to suggest that disabled group home residents might be able to file a discrimination complaint against the employers running these homes on the basis that the homes were being picketed by the employers’ striking unions!

Can you imagine that?

The case originally involved a complaint by the residents against the striking unions, which was dismissed by the Tribunal as having no reasonable chance of success.

As noted by the Tribunal, the residents “argued that the picketers, and therefore the union, are linked to the delivery of services and the occupancy of accommodation because their regular function is to serve the residents, and that this picketing has a differential impact on them as compared with picketing elsewhere because it took place at and disrupted their homes, because their intellectual disabilities made it difficult for them to fully understand what was occurring, and because it drew attention to the group homes, potentially adding to opposition from neighbours.”

Further key elements of the residents’ theory of discrimination were set out in the following:

[8] The claimants state that during the labour disputes, picketers positioned themselves in front of the homes for several hours at a time, during days and evenings. They state that they controlled the coming and going of people into the homes, and were sometimes adversarial with replacement workers.

[9] The picketing, they argue, was distressing to the claimants. Ms. Kacan was afraid and anxious, and she felt strongly that it was unfair that she had to endure this at her home. She wrote a letter asking for the picketing to stop. Mr. Yuill exhibited signs of distress, including seizures. His sister asked more than once for the picketing to stop. Many of the picketers were individuals known to the claimants, but some were not. Both claimants have mobility problems, and could not leave the premises on their own.

[10] The nature of the claimants’ disabilities, it is argued, made it difficult for them to understand and to deal with the presence and conduct of the picketers. The location – at their home – allegedly exacerbated the situation because they could not avoid or leave the site to get away. They did not have any place they could go to live, even temporarily.

[13] Central to the claimants’ argument is the allegation that other locations were available for the unions to conduct their picketing, such as the employers’ offices, and that picketing did take place at those locations. They argue that there is no reason why the picketing could not have been limited to those other locations, to avoid the negative impact on the claimants and other residents in their homes. They state that any impact on the respondent unions and on their ability to convey their message would therefore have been minimal.

The Tribunal ultimately determined that the application had no reasonable prospect of success, such that it could be dismissed without a full hearing, because when unions are in strike mode, they are not engaged in a social activity that gives rise to protection under the Human Rights Code. As the Tribunal put it:

[35] When picketing and on strike, the unions and their members were acting not as service providers or assisting with the occupancy of accommodation. They had expressly withdrawn their services, and were protesting the employer’s failure to reach an agreement with them. They were not, in the words of Braithwaite, offering or providing something of benefit to another. They had no role in providing or regulating services or accommodation but were union members, protesting and expressing their views about their employer’s actions. Although, like a neighbour, passer-by, or other protestor, they could do things to affect the applicants’ services and living requirements, this is, in my view, not a sufficient link to engage the Code.

[36] Moreover, the claim here is against the unions as organizations. The unions have no role as service or accommodation providers at any time. The unions’ role is to represent their members in their workplace interests, not to serve the clients of the homes.

[37] I appreciate that from the claimants’ perspective, picketing by the workers who normally support them in their day-to-day activities may have been perceived differently from that by others, in particular because of their intellectual disabilities. In my view, perception cannot lead to an expansion of social areas into relationships that they do not otherwise govern.

Without getting into questioning this reasoning or the result I will, with the greatest of respect, take issue with the Tribunal’s concluding remarks in this case:

[44] This conclusion does not mean that the claimants have no legal recourse to deal with their concerns about picketing. They may be able to put forward their concerns about the effect on them in other types of legal proceedings, or perhaps make a claim under the Code against the service providers or government. The claims made here against the unions, however, are not covered by any of the social areas in the Code.

Let us recall that what led to this case in the first pace was the residents’ perceived difficulties arising from their group homes being picketed. If that activity cannot ground a Code-based complaint against the striking unions, how could it ground one against the employers who are being struck? Surely that makes no sense.

Of course, during a strike, a group home operator would presumably continue in an active service-and-accommodation-providing relationship with the residents. However, is it not plain from a mile out that an employer’s being struck by a union could not constitute a discriminatory act by the employer against the residents?

I recognize that the Tribunal has a difficult job, sorting out difficult issues. However, let’s hope that if one of the hypotheticals it considers materializes it will give similar consideration to the struck employer as that which benefitted the striking unions in this case.