Abary v. North York Branson Hospital (No. 3)
1989-01-12
Ontario Board of Inquiry Decision under the HUMAN RIGHTS CODE, 1981, S.O. 1981, c. 53
Cezar Abary Complainant
v.
North York Branson Hospital and Edwin Hill Respondents
Date of Decision: January 12, 1989
Before: Ed Ratushny
Comm. Decision No.: 2788
Appearances by: Mr. Roach, Counsel for the Complainant Kim Twohig, Counsel for the Ontario Human Rights Commission Mr. Liswood, Counsel for the Respondents
RACE, COLOUR AND PLACE OF ORIGIN — position denied on the basis of race — SYSTEMIC DISCRIMINATION — pattern of conduct discriminatory on the basis of race — EVIDENCE — credibility of witnesses
Summary: The Board of Inquiry dismisses the complaint of Cezar Abary alleging that he was discriminated against because of his race by North York Branson Hospital.
Cezar Abary was employed by the hospital as a security guard. He alleged that he was refused the position of Chief of Security because of his Philippine origin, that the hospital interfered with his right to pursue his complaint without threats or reprisals, and that the hospital engaged in a pattern and practice of discrimination against those of Philippine extraction and other non-whites.
The Board of Inquiry finds that Mr. Abary was not discriminated against because of his race or origin. It rejects Mr. Abary's evidence, finding that it was characterized by exaggeration, contradiction, and deliberate attempts to deceive. The Board accepts the hospital's testimony that Mr. Abary was not considered for the position of Chief of Security because of his arrogant, deceitful, and bizarre conduct.
The Board of Inquiry also finds no evidence of reprisals against Mr. Abary or of a pattern and practice of discrimination. It finds that Mr. Alcaide, another employee of Philippine extraction, was discriminated against by the hospital, but since there is no complaint of Mr. Alcaide's before the Board, no action is possible.
The complaint is dismissed.
1The complaint of Cezar Abary dated December 12, 1983, alleges that the North York Branson Hospital in Willowdale, Ontario, contravened the Ontario Human Rights Code by:
denying him equal treatment as an employee because of his race, ancestry, place of origin, colour and ethnic origin;
interfering with his right to pursue proceedings under the Code without reprisal or threat of reprisal; and
engaging in a pattern of discrimination against others of Philippine extraction and other non-whites in the employ of the Hospital.
Mr. Abary was represented by his own counsel at the actual hearings who, with the co-operation of counsel for the Ontario Human Rights Commission, led the evidence in support of the complaint.
2These proceedings were also the subject of a second complaint by the Commission itself, alleging that the Hospital contravened the Code by:
denying equal treatment to employees of Filipino origin and ancestry; and
engaging in reprisal action against another employee, Mr. John Alcaide.
However, following the testimony of Mr. Abary, counsel for the Ontario Human Rights Commission informed this Board that its complaint was withdrawn as a result of a satisfactory resolution between the Commission and the Hospital.
3As a result, the scope of this decision is limited to the three allegations in Mr. Abary's complaint against the Hospital. Mr. Hill is not a party to that complaint, although his role on behalf of the Hospital is central to the first two allegations.
4These proceedings followed a tortuous route. When the hearing was first convened, in November 1986, the complainant Abary was not represented by legal counsel. On the consent of counsel for the Commission and the respondents, an adjournment was granted sine die to permit the respondent to seek to enforce an alleged "settlement" in a court of law. Mr. Abary subsequently retained independent counsel, who brought an application to proceed with the hearing of the complaint. The application was granted and further dates were set to proceed. Following the testimony of Mr. Abary, another adjournment was granted to permit Commission counsel to seek further instruction from her client. At the close of the case on behalf of the complainant, the respondent brought a "nonsuit" motion, which was dismissed. Separate written reasons were given in relation to the application to proceed and the "nonsuit" motion.
5The delays were compounded by the difficulties in finding hearing dates open to all three counsel as well as the Board. At the close of evidence, it was agreed by all parties that argument would be presented by written submissions. The Board reviewed all of the submissions and evidence in this matter and concluded that no right of the complainant under the Code had been infringed. The parties were informed of this conclusion in late October with an indication that these written reasons would follow as soon as circumstances would permit.
6The allegations of: (1) discriminatory treatment; (2) reprisals and threats; and (3) a pattern of discrimination; each will be addressed in turn.
7Mr. Abary's allegation of discriminatory treatment arises out of his application for promotion from security officer to chief of security. As Mr. Roach points out clearly and succinctly in his submissions on behalf of Mr. Abary, the events which brought this matter to a head commenced with the posting of a memorandum on June 7, 1983. This memorandum invited employees to apply to the personnel office for the position of chief of security. At this time, Mr. Abary had been a security officer at the Hospital for eight years.
8The next day, Mr. Abary called upon the assistant director of personnel, Peter Egan. The versions of this meeting given by these two witnesses were contradictory. The complainant testified that Mr. Egan told him that he was qualified for the position but that Edwin Hill, the director of plant and operations, had responsibility for making the decision. Mr. Egan testified rather forcefully that he told Mr. Abary that he could not recommend him for the position and he attempted to dissuade Mr. Abary from applying.
9Mr. Abary arranged to see Mr. Hill on June 16. There is no dispute that Mr. Abary followed the procedure prescribed in the Hospital's personnel policies handbook in relation to promotions. He made his application in writing to the personnel department and provided a copy to the head of the department concerned. However, when Mr. Abary met with Mr. Hill, the latter did not appear to be interested in reviewing his credentials. Instead, he indicated that he was looking for a person who was capable of giving seminars to groups of two hundred persons and that Mr. Abary's English was not good enough. Mr. Abary concluded from this statement that he was being discriminated against because of his race. On cross-examination, he concluded that this statement by Mr. Hill was the only fact from which he drew this conclusion.
10Mr. Abary was unhappy with this turn of events but in the absence of any grievance procedure decided to express his unhappiness to Mr. Egan and to the hospital chaplain. (The Hospital is one of the very few in Ontario which does not have an employees' union.) When Mr. Hill learned that Mr. Abary was talking to other employees about his alleged discriminatory treatment, he called another meeting with Mr. Abary for July 5. Mr. Egan also attended.
11At this meeting, Mr. Hill reprimanded Mr. Abary for speaking to other employees about this matter. However, Mr. Abary felt that his choice of the personnel department or the office of chaplain were entirely appropriate avenues through which to address his concerns in the absence of any grievance process. He considered his treatment to be an "irregularity" and expressed the view that the problem with the Hospital was that there were irregularities related to stealing and immorality which were being tolerated by the administration. Mr. Abary specifically referred to Mrs. Sokol, who is the former director of the dietary department.
12Mr. Egan then left because of another meeting. Mr. Hill pressed Mr. Abary to be specific about his allegations of immorality. Mr. Abary refused to mention any names until Mr. Hill threatened to charge him with insubordination. At that point Mr. Abary informed him that Mr. Hill, himself, was one of those "who is involved in the immorality business in the hospital." Mr. Hill then indicated that another meeting would be held the next day in the office of Mr. Jack Gallop, the associate administrator of the Hospital.
13Messrs. Abary, Hill, Egan and Gallop were present at this meeting where the discussion of the previous day's meeting was reviewed. Mr. Abary was excused and, the next day, was suspended and relieved of his keys, including the keys to his locker. He alleges that when he later had access to his locker some items were missing, including his notebooks in which he had recorded details of the "irregularities" which he had alleged. On July 14, he received a letter terminating his employment.
14Counsel for Mr. Abary submitted that Mr. Hill's purpose in calling the meeting of July 5 was to harass his client for going to the personnel office and the chaplain after the June 17 meeting. In effect, he "bullied" Mr. Abary into giving specifics about the alleged irregularities. It was a "set-up" by Mr. Hill to make it appear as though Mr. Abary was the one threatening or blackmailing Mr. Hill.
15Another security officer, Lorne Russell, was subsequently appointed chief of security. He is a white Canadian. He had not submitted a written application but rather approached Mr. Hill and others directly rather than follow the procedure stated in the job posting and the Hospital's personnel policy handbook. Mr. Russell had less seniority than Mr. Abary and it was argued that he was less qualified. Mr. Russell was not called as a witness by the respondent, nor was Mr. Hill, who was responsible for the hiring.
16In sum, it is alleged that there was unfairness in the promotion process and the person who received the position was less qualified. The person who received the appointment was a white Canadian. The stated reason for not even considering Mr. Abary was the inadequacy of his ability to speak English. However, the requirement of giving seminars to two hundred people was not part of the job description. In the absence of a rational explanation which is non-discriminatory and which is credible on all of the evidence, it would be open to a board of inquiry to draw an inference of racial discrimination, particularly where the person directly responsible for the hiring does not testify.
17Mr. Roach's submission on behalf of Mr. Abary clearly establishes that there were procedural irregularities in the promotion process which would not withstand scrutiny in a labour grievance arbitration. The process was both sloppy and arbitrary. However, the sole issue before this Board is whether there has been a contravention of the Ontario Human Rights Code. Let us assume that the successful candidate was less qualified than Mr. Abary in terms of courses taken or supervisory or other relevant experience. Is there a rational explanation for not considering Mr. Abary for promotion which is non-discriminatory and which precludes any reason which is discriminatory?
18Although the evidence and submissions were contradictory on this point, this Board has no doubt that Mr. Abary never received serious consideration for the position of chief of security at any time after the job posting on June 7. Counsel for the respondent, Mr. Liswood, argued that Mr. Abary only became a "non-candidate" after he attempted to "blackmail" Mr. Hill at the meeting on July 5. However, the Hospital's formal response to the Commission after it received the complaint was unequivocal in stating that one of the purposes of the meeting of July 5 was to advise Mr. Abary ". . . of the decision not to grant him the position." Moreover, a letter written to the Commission by the director of personnel, Mr. Myers, indicates that Mr. Abary was a "non-candidate" even at the time of his June 17 meeting with Mr. Hill:
Mr. Hill's statement concerning the fact that he had ruled Mr. Abary out as a serious contender for the job refers to the time of Mr. Abary's interview on or about June 17. Because Mr. Hill had some prior knowledge of Mr. Abary, and because an informal review had been made of all the security guards currently employed in anticipation that they might apply for the position, Mr. Hill had determined in his own mind that Mr. Abary was an unlikely candidate.
The basic issue, therefore, is why Mr. Abary was not given consideration for promotion. Was his Philippine extraction a factor?
19The reason apparently given by Mr. Hill does not bear scrutiny. No reference was ever made to the requirement of giving seminars to two hundred people until Mr. Hill attempted to justify ignoring Mr. Abary's documentation. In the absence of any other rational explanation, this "reason" for not considering Mr. Abary could well lead to the inference that racial discrimination was a factor in the treatment of Mr. Abary.
20However, in the view of this Board, there clearly existed a rational explanation for not considering Mr. Abary as a realistic candidate for chief of security. That explanation lies in the arrogant, deceitful and often bizarre conduct of Mr. Abary himself. Indeed, it is almost frightening to conceive of Mr. Abary in the role of a chief of security.
21It was mentioned earlier that there was conflicting testimony between Mr. Egan and Mr. Abary with respect to their meeting of June 17, when Mr. Abary expressed his interest in the position in question. Mr. Egan's testimony was that he told Mr. Abary that he had some of the qualifications but that he could not recommend Mr. Abary for the position in light of a letter of reprimand which was sent to him a year earlier involving serious misconduct. Mr. Abary's testimony was that Mr. Egan merely informed him that he was qualified for the position. Mr. Abary also denied ever receiving the letter of reprimand until it had been brought to his attention by the Ontario Human Rights Commission long afterwards. However, Mr. Egan testified that he read the letter to Mr. Abary and showed it to him and that Mr. Abary's response was, "Well, that was more than a year ago." According to Mr. Egan, Mr. Abary made no suggestion whatsoever that he had not seen the letter prior to June 17, 1983, let alone much later.
22Mr. Egan was a straightforward and credible witness and this Board accepts his testimony over that of Mr. Abary. Mr. Abary's testimony was characterized by exaggeration, contradiction, evasion and deliberate attempts to deceive. For example, his original job application at the Hospital indicated that he had graduated from university in the Philippines with a degree in commerce. He also testified that he had finished university with a "B.S. in economics." However, after further questioning, he admitted that he was short of credits and never did graduate. Similarly, the application form indicated that he did "graduate" from a course at St. Clair College in Windsor and received a degree in "bookkeeping." However, in his testimony, he conceded that this was a Manpower training program for which no diploma or other document was given. Other clear contradictions in his evidence are found in relation to his employment and income subsequent to his dismissal.
23The letter of reprimand referred to by Mr. Egan was the result of a note written by Mr. Abary entitled "Big Boss." The letter of reprimand is attached as an appendix to this decision1 since it provides a clear illustration of Mr. Abary's aberrant conduct and the reasonable manner in which the Hospital administration reacted to it. It should be noted that, just as Mr. Abary denied receiving the letter of reprimand after it was sent, his first instinct was also to deny that he had written the "Big Boss" note. This was clearly a lie, which he subsequently admitted after persistent questioning. In his testimony he denied that he had placed this note under the door of Mr. Myers where it was found. He stated that he had no intention of letting anyone see the note but merely wrote it in his notebook for his own record. However, the Hospital had run out of notebooks at the time so it happened to be on a separate piece of paper, which he thinks he must have left in the cafeteria and which, presumably, some unknown person placed under the door to Mr. Myers' office. Once again, this explanation is totally lacking in credibility.
24Reference is made in the letter of reprimand to another unsigned note written by Mr. Abary a year prior to the "Big Boss" note alleging theft from the Hospital kitchen and cafeteria by Mrs. Sokol, who was then director of the dietary department. It should be noted that Mr. Abary's wife worked in this department since 1975, and was promoted to the position of dietary supervisor in October 1982. The personnel department made inquiries into the allegations in the note but dismissed it as being frivolous. Nevertheless, in spite of the letter of reprimand, Mr. Abary persisted in raising this issue once more during his July 5 meeting with Messrs. Hill and Egan.
25In addition to the "Big Boss" note in 1982 and the note in relation to Mrs. Sokol in 1981, there were a number of other incidents demonstrating Mr. Abary's unsuitability as a security officer, let alone as chief of security. Mr. Myers testified that he was involved in various confrontations with the public as a result of his "abrasiveness." Mr. Abary was exuberant in applying stickers to the windshields of cars which were not properly parked and, generally, lacked tact in dealing with members of the public.
26One incident in particular illustrates Mr. Abary's attitude toward his superiors as well as to the public. Mr. Abary spoke to a person who was in an ambulance route but who would not move his car. Since the person "ignored our authority," a sticker was place on his windshield, ". . . thinking it will give him a lesson." He then continued on his round but was "beeped" by the administrator, who ordered Mr. Abary to remove the sticker. Although Mr. Abary acknowledged that this was an order from a superior, he "didn't bother" to obey it since: "I also have my rights, sir, to say no, because what he was telling me is wrong." Mr. Abary agreed that he used many more stickers on windshields than anybody else in the security department.
27Mr. Abary also had strong views about how the security department should be run and frequently expressed these views. He was critical of the reporting relationship and thought that the department should report directly to senior administration or the Hospital president. He also thought that officers should have more powers, such as the authority to search handbags and to issue parking tickets. According to Mr. Egan, he also suggested that the security department should be "more regimentalized, such as a military establishment or battalion or police patrol group." He also suggested that large men should be hired and appropriately dressed so that members of the public would be apprehensive of acting improperly in front of them. His general approach to security ran contrary to the philosophy of the Hospital, which was one of tact and co-operation with the public rather than intimidation.
28Mr. Abary's propensity for threat and innuendo was also illustrated by a series of notes and cartoons including one with four illustrations of a "skull and cross-bones" and the words: "EDWIN HILL QUIT YOUR JOB! NO TECHNICAL KNOWHOW! DUMB." This document which was in the possession of Mr. Myers contains a notation to the effect that it was slipped under a door on October 13–14, 1985. Although all of these documents were not identified and knowledge of some of them were denied by Mr. Abary, some were signed by him and others bore the name of the "Cezar Abary Legal Defence Committee," which he acknowledged directing. On balance, it is difficult to imagine that he was not either aware of or the author of all of these documents.
29In sum, the evidence does not indicate that Mr. Abary was not promoted because of his Philippine extraction. There is overwhelming evidence that he should not have been promoted to the position of chief of security in any circumstances. That evidence also points to the reasonableness of his ultimate dismissal.
30Indeed, Mr. Abary's general approach appears to be to claim discrimination first and to ask questions later. For example, he felt that he was "discriminated" against when Mr. Alcaide was promoted to the position of assistant chief of security. Although Mr. Alcaide is also of Philippine extraction, Mr. Abary felt that he was treated unfairly. He conceded that there was no racial unfairness "but there might be some other kind of discrimination." When pressed, on cross-examination, he was unable to be more specific.
31The second aspect of Mr. Abary's complaint relates to an allegation of interference with Mr. Abary's right to pursue proceedings under the Ontario Human Rights Code without reprisal or threat of reprisal. There is simply no evidence to substantiate this allegation. It was not addressed in the submissions of counsel for Mr. Abary or for the Commission and can be treated as, appropriately, having been abandoned.
32The third aspect of Mr. Abary's complaint alleges that the North York Branson Hospital engaged in a pattern of discrimination against others of Philippine extraction and other non-whites in the employ of the Hospital. In support of this allegation, counsel called three witnesses in addition to Mr. Abary, namely, Moses Henry, Nathanial Frias and John Alcaide. Reference was also made to the situation of Mrs. Poblete.
33Mrs. Poblete is also of Philippine origin. She was certified as a Registered Dietician and worked in the dietary department under Mrs. Sokol, who was the director. It was alleged that when Mrs. Sokol's position became vacant the Hospital denied her promotion to that position and recruited the next two persons who held that position from the United States. However, the director of personnel testified that Mrs. Poblete was not interested in the position at that time because of her family circumstances. When the position became vacant again for the third time, Mrs. Poblete felt that she was in a position to take on that additional responsibility and the job was given to her. Mrs. Poblete was not called as a witness and no evidence was presented to contradict the Hospital's version of her treatment.
34The testimony of Mr. Henry was very general in nature. He referred to dissatisfaction within the maintenance department as a result of John Haley, a white Canadian, being appointed to a particular position. He stated that others in the department had not applied because the wording of the job posting indicated that an engineer was required. Mr. Haley was not an engineer. However, he conceded that the expression "engineer" was not included in the advertisement and the advertisement was not produced. He also conceded that when Mr. Haley left he was replaced by Peter Goh, whose ethnic background is Chinese.
35Quite apart from specific examples, Mr. Henry expressed his general impression that the department showed preference for white people with a Canadian accent without regard to qualifications. That view is in contrast to the view of the assistant director of personnel, Peter Egan, who was born in India and who viewed his own appointment as evidence that discriminatory practices did not occur at the Hospital. He estimated that from 40 to 50 percent of the Hospital's twelve hundred employees were from "visible minority" groups. If the category were expanded to "identifiable minority groups" through language or accent, the percentage would increase to 60. He also estimated that approximately 50 percent of the management positions were held by members of visible minorities. The director of personnel, Mr. Myers, estimated that this figure would be "in excess of 50 percent" and furnished a list of management positions identified by "race/origin." The first person listed was the director of finance, identified as "Black-Barbados," and the list includes Mrs. Abary. He stated unequivocally that the policy of the Hospital is to hire and promote the most qualified people. There is nothing in the testimony of Mr. Henry to refute that position apart from his general impression.
36Counsel for Mr. Abary argued that Mr. Frias worked as a part-time security guard for a period of five years before being given a position on permanent staff while other security guards were promoted to permanent positions. He also suggested that in 1983, Mr. Frias was harassed in the allocation of duties and shift schedules and in diminishing his hours of part-time work and income.
37However, the evidence indicates that during the period that Mr. Frias was working part time, the only other part-time security guard, Max da Costa, received a permanent position. At the time, Mr. da Costa had twelve months of "seniority" as a part-time employee, while Mr. Frias had sixteen months. When he complained, Mr. Frias was told that Mr. da Costa received preference because he spoke better English but that he would be considered for the next available permanent position. Budgetary constraints precluded the creation of another permanent position, but, in 1984, the next permanent position became available and Mr. Frias was appointed to it.
38While Mr. Frias contested the view that his English was not as good as that of Mr. da Costa, the advice which he received at the time from another permanent security officer, Mr. Alcaide, was to take courses to improve his English (which he did). No complaint or concern was expressed by Mr. Frias that the preference given to Mr. da Costa was racially motivated. In addition, the small margin of "seniority" involved does not point to more than a "judgment call." The core of the frustration experienced by Mr. Frias appears to have been more closely related to the long delay before another permanent position became available. The evidence simply does not support the allegation of harassment.
39The remaining element advanced by the complainant in support of the allegation of a pattern of discrimination was the treatment of John Alcaide. It should be noted that we are not addressing a direct complaint of discriminatory treatment of Mr. Alcaide. No complaint was ever made on his behalf. Rather, it is alleged that the discriminatory treatment which he encountered was one element of a pattern of discrimination practised by the Hospital. Since no other elements have been established to support such a pattern, it is difficult to see how such a pattern could be found, even if Mr. Alcaide's treatment could be found to constitute a specific contravention of the Code.
40Mr. Alcaide commenced employment at the Hospital in January 1973. In January 1977, he was appointed by the chief of security to transfer to the security department, which he did. In December 1979, he was called into the office of the plant director, Mr. Roland Pedder at the time, and asked to assume the role of assistant chief. No such position existed prior to that time. Mr. Alcaide expressed shock and surprise at this invitation but was told that his record was excellent and that he was doing a very good job. He accepted. Mr. Alcaide received no documentary confirmation of this promotion but a hand-written note was addressed by Mr. Pedder to all security personnel informing them that Mr. Alcaide would assume this position. Mr. Alcaide assumed additional supervisory responsibilities in this new role but received no extra remuneration.
41It was not until after Mr. Russell became chief of security in 1983 that Mr. Alcaide raised the problem. The Hospital records indicate that on November 18, 1983, Mr. Alcaide's title officially was changed to that of "Assistant Chief" with a wage change from $1,483.55 to $1,536.81 effective September 5, 1983, and that the reason for the change was to "recognize additional responsibilities." Counsel for Mr. Abary and for the Commission did not argue that the circumstances of Mr. Alcaide's promotion constituted discriminatory treatment. It simply appears that Mr. Pedder had informally initiated the change of status without approval by the personnel department. The director of personnel, Mr. Myers, testified that Mr. Pedder had, on several occasions, attempted to secure a budget for an assistant chief of security but the request was repeatedly denied. Finally, when Mr. Alcaide himself raised the issue in 1983, his de facto change in status was formally recognized and accompanied by an increase in wages.
42However, the failure to consider Mr. Alcaide for appointment to the position of chief raises serious suspicions. He had been serving de facto as assistant chief and he was obviously well qualified. When Mr. Alcaide saw the job posting for the position of chief, he went to see Mr. Hill, who referred him to the personnel department. Mr. Alcaide testified that he then met with Mr. Egan, who informed him that he was a prime contender for the position but that he would have to be interviewed by a committee. No such interview ever occurred and he learned in September that Mr. Russell had been hired.
43The only explanation given, according to Mr. Alcaide, occurred when Mr. Hill called him into his office and stated bluntly that he was not promoted because of a personal "grudge" which Mr. Hill had against him. Two events were mentioned which occurred shortly before that time in which Mr. Hill was upset with Mr. Alcaide. However, as described by Mr. Alcaide, they were trivial in nature and hardly warranted rejecting Mr. Alcaide's application out of hand. Finally, after Mr. Russell was appointed as chief, Mr. Alcaide assisted in his orientation and training.
44Mr. Alcaide also testified that his employment conditions became increasingly difficult in 1984. In March 1985, he was transferred to another department because of alleged sexual indiscretion and harassment which the personnel department considered to be substantiated. He attributed this chain of events to his refusal to agree to testify in these proceedings on behalf of the Hospital and against Mr. Abary.
45Mr. Alcaide clearly was treated unfairly by the North York Branson Hospital. He was not considered fairly for promotion to the position of chief of security and was told that the reason was based on a personal grudge which the person making the decision had against him. He alleged difficulties in his work environment under the new chief and the Hospital provided no explanation for these. At the time of his transfer from the security department, he was told that the reason was his misconduct but he never received specific allegations or opportunities to refute them. During cross-examination a number of specific allegations of sexual harassment were put to him, including the names of the women involved. However, each was denied and the Hospital declined to produce any evidence whatsoever in support of these allegations.
46In the view of this Board of Inquiry, the evidence would support a contravention of the Ontario Human Rights Code by North York Branson Hospital in relation to Mr. Alcaide. However, there is no complaint before this Board on behalf of Mr. Alcaide. Unlike Mr. Abary, Mr. Alcaide did not file a complaint with respect to his treatment in relation to his application for promotion, his working conditions in 1984, his transfer in 1985 or his participation in these hearings. The submissions of the Ontario Human Rights Commission describe him as "a similar fact witness." In these circumstances it would be a denial of the administrative law principles of fairness to make a finding of a contravention of the Code in the Hospital's treatment of Mr. Alcaide. No application was made during the course of the proceedings to amend the complaint to deal specifically with the treatment of Mr. Alcaide.
47However, Mr. Alcaide's treatment is being considered in relation to an aspect of Mr. Abary's complaint, namely, his allegation that:
The Hospital has also engaged in a pattern of discrimination against Philippines and other non-whites in the employ of the Hospital . . .
The treatment of Mr. Alcaide is the only evidence before this Board which would tend to support this allegation. Even if the facts support discriminatory treatment against Mr. Alcaide, they do not constitute a "pattern of discrimination." On the contrary, the percentages of non-white employees generally, and in management positions which were discussed earlier, point to the opposite conclusion.
The complaint of Cezar Abary against the North York Branson Hospital is dismissed.
48There is one other matter to be addressed. In the submissions of the respondents it is stated that, in the event that the complaint of Cezar Abary is dismissed, "the respondents wish an opportunity to make oral submissions with respect to costs." At the final day of the hearings, on May 10, 1988, counsel for the respondent specifically asked whether the written submissions should include submissions with respect to the appropriate order on the issue of costs. The Board specifically indicated that the issue of costs should be addressed in the written submissions. Counsel for the respondent specifically indicated that costs would be addressed in the written submissions. In these circumstances, the request for an opportunity to make oral submissions with respect to costs is denied.
1 Ed. note: Not published here.