Leading Cases – Unions or occupational associations (section 14)
- Section 14
- Complaints against unions
- Complaints against occupational associations
- Bona fide and reasonable justification
Discrimination by unions and associations
14 A trade union, employers’ organization or occupational association must not
- exclude any person from membership,
- expel or suspend any member, or
- discriminate against any person or member
because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or member, or because that person or member has been convicted of a criminal or summary conviction offence that is unrelated to the membership or intended membership.
A union can discriminate against a member in two ways:
- The union can affect the member’s employment if it negotiates a discriminatory provision in the collective agreement or gets in the way of an accommodation. This type of discrimination falls under section 13 of the Human Rights Code. Central Okanagan School District No. 23 v. Renaud,  2 SCR 970.
- The union can discriminate against a member in the services that it provides. This type of discrimination falls under section 14 of the Human Rights Code. Ferris v. Office and Technical Employees Union, Local 15, 1999 BCHRT 55
Ferris v. Office and Technical Employees Union, Local 15, 1999 BCHRT 55. Ms. Ferris was a transgender woman. A union shop steward complained about her using the women’s washroom. Then the union assigned that same shop steward to represent Ms. Ferris at a meeting with the employer to talk about her using the washroom. The Tribunal found that the union had discriminated against Ms. Ferris. This case explains when complaints against a union should be brought under s. 13 (employment) or 14 (membership in an organization) of the Human Rights Code (see paras. 79-80).
Graham v. Richmond School District No. 38, 2005 BCHRT 520 and Waters v. Coca-Cola Bottling Co., 2005 BCHRT 557. In most cases, an allegation that a union represented a member poorly will not be discrimination. The proper place to make that kind of complaint is the Labour Relations Board. A union’s poor representation can only be discrimination if there are facts to show it is related to a protected characteristic like race or disability.
“Occupational associations” are defined in s. 1 of the Human Rights Code to mean “an organization, other than a trade union or employers’ organization, in which membership is a prerequisite to carrying on a trade, occupation or profession”.
Bitonti et al v. The College of Physicians and Surgeons of BC et al, 1999 BCHRT 63. The complainants were all foreign-trained doctors. The College of Physicians and Surgeons had a rule that made foreign-trained doctors do a year of internship in Canada. However, this was not a requirement for doctors from Canada, the US, Great Britain, Ireland, Australia, New Zealand or South Africa. The requirement was almost impossible for the complainants to meet. The Tribunal found that it discriminated against the complainants on the basis of their place of origin.
Fossum v. Society of Notaries Public of British Columbia, 2011 BCHRT 310. Mr. Fossum had an alcohol use disorder. After he finished a treatment program, the Society of Notaries issued a Notice of Inquiry against him. The Notice “charged” him with “self-induced alcohol abuse” that put his clients at risk. Mr. Fossum had to make a “solemn promise” that he would not have another relapse. This was discrimination on the basis of disability.
Gichuru v. The Law Society of British Columbia, 2009 BCHRT 360. Mr. Gichuru wanted to be a lawyer. To do that, he had to article with a law firm. The Law Society had to approve his articles. When he applied to article, the Law Society asked him questions about his mental health. Mr. Gichuru told them he had a history of depression. The Law Society then asked intrusive and irrelevant questions about his mental health to see if he was “fit” to become a lawyer. It made Mr. Gichuru do an Independent Psychiatric Assessment with a psychiatrist he could not choose. It also told him that he would have to do on-going consulting with a doctor about his psychiatric assessments. This treatment was discrimination on the basis of his mental disability.
Brar and others v. B.C. Veterinary Medical Association (No. 22), 2015 BCHRT 151. The BC Veterinary Medical Association (BCVMA) discriminated against Indo-Canadian veterinarians for about eight years. It relied on racial stereotypes about Indo-Canadian veterinarians. It was involved in rumours that the veterinarians were incompetent and more likely to act unethically. The BCVMA also set a standard for English language that was too high and put Indo-Canadians at a disadvantage. It unfairly targeted Indo-Canadian veterinary clinics for unscheduled inspections. It dealt with disciplinary complaints in a way tainted by racism.
Fossum v. Society of Notaries Public of British Columbia, 2011 BCHRT 310. Even though section 14 of the Human Rights Code does not say that a respondent can defend itself with a bona fide and reasonable justification, the Human Rights Tribunal will still consider that defence (see para. 290).