Human Rights Tribunal of Ontario
B E T W E E N:
Mark Gernon
Complainant
-and-
Ontario Human Rights Commission
Commission
-and-
Toronto Police Services Board and Maureen Carey
Respondents
INTERIM DECISION
Adjudicator: Brian Eyolfson
Indexed as: Gernon v. Toronto Police Services Board
APPEARANCES AND WRITTEN SUBMISSIONS BY
Mark Gernon, Complainant ) Vusumzi Msi, Counsel
Toronto Police Services Board and ) Heather Crisp, Counsel
Maureen Carey, Respondents )
INTRODUCTION
1This Interim Decision addresses the respondents’ request that the Tribunal dismiss the Complaint on the basis that the complainant has not established a prima facie case.
2The Complaint alleges discrimination on the basis of race, colour and sex in employment, and reprisal, contrary to sections 5(1), 8 and 9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The complainant, a member of the police auxiliary, applied for a position as a regular member of the Toronto Police Service (the “TPS”). The complainant alleges he was advised that he was not given consideration equal to that given to other applicants because of his status as a white male. He alleges further that, when he complained of discrimination, he was subjected to reprisal in that he was “permanently screened out” from the employment process. The Ontario Human Rights Commission (the “Commission”) referred the subject matter of the complaint, as it relates to the issue of reprisal only, to the Tribunal.
3The respondents deny that the complainant was subjected to reprisal. They submit that the decision to permanently screen out the complainant was based on reasonable grounds related to his application, the recommendation of an Inspector in the Employment Unit (the “EU”) who reviewed his application file, and his own request for a “bottom line” decision.
4On February 26, 2009, the Commission’s request to withdraw from participation in the proceedings was allowed by the Tribunal. On August 13, 2009, upon completion of the complainant’s evidence, the respondents brought the request to dismiss on the basis that the complainant had not demonstrated a prima facie case of reprisal. As agreed, the complainant and the respondents filed supplemental written materials concerning the request to dismiss on August 17 and 19, respectively.
REQUEST TO DISMISS
The parties’ positions
5The respondents submit that there is a very discreet issue before the Tribunal – whether the complainant was discriminated against in employment on the basis of reprisal when he was screened out from the constable hiring process in 2004 because he wrote a letter to the Chief of Police on October 13, 2004. They submit that the complainant testified that he wrote the letter because he thought he had been getting the “run around” from the EU and he said the purpose of writing the letter was that he was trying to achieve an offer of employment. The respondents submit that, in his testimony and in his letter, the complainant criticized members of the EU and said the process was unfair, especially when he was told he was white and male, lived in Guelph and a charge against him had been withdrawn.
6The respondents submit that when the complainant’s letter to the Chief is reviewed in its totality, there is no attempt to enforce the complainant’s human rights and, without an attempt to enforce human rights, there is no basis for reprisal within the meaning of the Code. They submit that none of the complainant’s testimony indicated the complainant was asserting his human rights. The only reference to something that could be potentially construed as a human rights matter is a reference to the complainant being white and male. The respondents submit that if that is construed as an attempt to enforce his human rights, then he was not asserting a right that fell under the Code in accordance with section 8.
7The respondents further submit that they have never taken the position that the complainant was turned down on the basis of race or gender; it is the position of the respondents that he was simply not a good candidate for the job. The respondents submit that if the TPS had allegedly refused the complainant’s employment because he was white and male, they had a perfect right to do so as the TPS has diversity hiring in place and the Commission has recognized the efforts of the TPS as a “special program” under the Code. As I understand it, the respondents submit that, because of a special program, the applicant had no rights under the Code to assert and, therefore, he could not meet the first part of the requirements of section 8 which is the assertion of Code-protected rights.
8The respondents also submit that the complainant admitted that he wanted a “bottom line” answer to his application and he asked the EU to give him one because he wanted to avoid paying for more testing. They submit that the complainant does not seem to have considered that a bottom line answer could be “no”. They submit that simply turning the applicant down as a candidate is not evidence of reprisal; the complainant has to show a prima facie case that he was turned down because he asserted his human rights. The respondents submit that the complainant admitted that his meeting with the respondents (after he wrote the letter to the Chief of Police) was relaxed and cordial and that he has not provided any evidence that they were somehow out to get him because he wrote a letter to the Chief, nor has he provided evidence to show how the personal respondent would have acted in reprisal against him. The respondents submit that the complainant has produced no evidence, including documentary evidence, to establish that he was turned down because he wrote a letter to the Chief.
9The complainant submits that, apart from his oral evidence which has gone unchallenged, documentary evidence establishes that he wrote to the Chief of Police, complaining about the misuse of his self-identification as white and male and the unfairness of the process, and was thereafter permanently screened out. The complainant submits that this evidence alone calls for an explanation from the respondents.
10The complainant submits that there is no evidence to support that it was reasonable to permanently screen him out. He submits that the evidence shows that at every point in the process where he could have been told “yes” or “no”, he was told “yes”. The complainant submits that he could have been told “never” or permanently screened out at any point but he was not permanently screened out until he wrote a letter of complaint.
11With respect to the respondents’ argument in relation to a special program, the complainant submits that it cannot be the case that organizations which are free from the prohibitions of the Code under diversity programs are also free to act in reprisal against persons who complain of discrimination on the part of the members of such organizations. The complainant submits that, even if it was true that the discrimination against the complainant was protected as a program of diversity, the complainant’s good faith complaint about such discrimination is one which he was entitled to make, free from reprisal.
12In my view, whether or not there is a special program does not assist the respondents with their request to dismiss. In de Pelham v. Mytrak Health Systems, 2009 HRTO 172, the Tribunal dismissed a portion of the Application that alleged discrimination on the basis of record of offences, ruling that “record of offences” covers persons convicted of an offence and not those who have been charged but not convicted. The Tribunal went on to order that the balance of the Application which involved allegations of reprisal could proceed. Subsequently, the respondents sought dismissal of the Application, arguing that the balance of the Application focused on the ground of reprisal and that alleged reprisal must be connected to an attempt to enforce Code-protected rights. The respondents argued that since the earlier decision of the Tribunal confirmed that persons charged but not convicted do not fall within the ground of “record of offences”, the applicant could not be seen to have been attempting to enforce Code-protected rights and, therefore, the Application did not fall within the jurisdiction of the Tribunal. In denying the respondents’ request to dismiss the Application, the Tribunal held as follows:
In this Application, the facts are that the applicant had a sincere, and not unreasonable, belief that he was covered by the Code. He instituted proceedings under the Code by filing an Application and a determination was made, after hearing submissions from the parties and the Ontario Human Rights Commission on a point of statutory interpretation, that the Code did not cover his circumstances. The Tribunal’s Interim Decision clarified the law in Ontario on this point. In such a situation, the Tribunal is satisfied that the protection against reprisals in section 8 applies. (see de Pelham v. Ricoh Canada, 2009 HRTO 813)
13In light of the above decision and the appropriate tests set out in the decisions that follow, I am of the view that the existence of a special program as asserted by the respondents would not assist the respondents with their request to dismiss the Complaint for failing to establish a prima facie case of reprisal. As the respondents correctly assert, the issue before the Tribunal is not whether the complainant was subjected to discrimination on the basis of race and/or gender, but whether or not he was subjected to reprisal.
The test to be applied on a request to dismiss
14In Jagait v. IN TECH Risk Management, 2009 HRTO 779, the Tribunal described the test to be considered in the context of a request to dismiss for failure to establish a prima facie case of discrimination as follows (see also: Traversy v. Mississauga Professional Firefighters’ Association, 2009 HRTO 996):
[18] The onus is on the applicant to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant's favour in the absence of an answer from the respondent: see Ontario Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (S.C.C.), at para. 28. Upon establishing a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that its actions were not discriminatory.
[19] It is well-established that the threshold for establishing a prima facie case of discrimination is not high, discrimination is often not overt, the employer may have knowledge of facts or possess evidence of discrimination that is not accessible to an employee whose employment is terminated, and that in many, if not most, cases the burden will shift to the respondent to provide a non-discriminatory reason for its actions. On the other hand, where the applicant has failed to establish a prima facie case, it is neither legally correct nor, in my view, fair, just and expeditious to shift the burden to the respondent to provide a non-discriminatory reason for its actions…
15In Potocnik v. Thunder Bay (City), [1996] O.H.R.B.I.D. No. 29, the Board of Inquiry described the test, as follows:
In simple terms, there must be something that would make a reasonable person say that the employer has some explaining to do… This is not a question of weighing the evidence, but simply of making a sensible determination of whether there is enough evidence that a respondent can reasonably be expected to have to answer.
16Lastly, in Modi v. Paradise Fine Foods, 2005 HRTO 24, the respondents brought a motion to dismiss the complaint, at the conclusion of the Commission’s case, submitting that the evidence tendered had not made out a prima facie case. The Tribunal held that it was required to determine whether, on the evidence adduced in support of the complaint, a prima facie case had been established as to the existence of a nexus between the acts complained of and a prohibited ground of discrimination. The Tribunal referred to the role of the adjudicator in considering such a motion, as articulated by the Nova Scotia Board of Inquiry in Gerin v. I.M.P. Group Ltd. (No. 1) (1994), 1994 CanLII 18459 (NS HRC), 24 C.H.R.R. D/449, as follows:
[23] (…)On a motion for a non-suit, the most that may be said is whether there is evidence from which one could reasonably conclude the complaints have been made out. This does not require a full assessment of the evidence; a board should not attempt to conclude whether the complaint has in fact been made out. This means that the board should not attempt to weigh and assess credibility and reliability of witnesses and should only reject evidence if clearly convinced without deep reflection and analysis that it is untrustworthy.
[24] Since the evidence is not weighed and assessed, the rejection of the motion does not mean that the complainants will succeed if no further evidence is brought forward. It simply means that this conclusion could be made, not that it ought to or will be made. On the other hand, the “any evidence” standard is probably too low; there must be some reasonable basis on which a conclusion in the complainant’s favour could be reached.
17Having considered the parties’ submissions and the materials filed, and without weighing and assessing the evidence, I find that there is sufficient evidence to establish a prima facie case of discrimination on the basis of reprisal. The complainant testified that he wrote a letter to the Chief of Police advising that he felt that the treatment of him was unfair, particularly when he was advised inter alia that he was white and male. A five-page letter dated October 13, 2004, which was entered as an exhibit at the hearing, contained the following statements:
I did as instructed, and during my conversation with the officer, I was advised that the charge that had been laid against me goes against my moral character. As does my residency, my gender, and my “colour”…(“you are a white male and we are of course pushing to hire minorities’)
...
And I have serious concerns of those additional comments, with respect to gender and colour.
…
On May 20, 2004 I again attempted to obtain my file status. I was advised: “the file is on the Sergeant’s desk – but as I am not a minority, that I am a white male” … “it does not look good, and again there are issues in the file that go against your moral character…but be patient”.
18The complainant testified that he met with the personal respondent and a Staff Sergeant on November 9, 2004. He understood that the meeting was for the purpose of talking about what was in his letter and his application and, among other things, they talked about the comments that he was white and male. He testified that on December 3, 2004 he received a telephone call from the personal respondent advising him “that they’d made a decision to permanently screen [him] out of the process.” He testified that he “was being punished for following up and enforcing [his] rights, which [he] felt were violated, especially after seeing other white males being hired”.
19I also note that, in their pleadings, the respondents state as follows: “It is very unusual for a candidate such as the complainant to be screened out after successfully completing the interview stage. Such a decision would be made on a case by case basis.”
20In my view, there is a sufficient nexus between the events complained of and a prohibited ground of discrimination. That is not to say that I have found that such a nexus did exist as a matter of fact and law; only that there is a prima facie case of such a nexus (see Modi, supra, at para. 14.). In light of the continuation of the hearing, I decline to comment further on the evidence presented to date (see Potocnik, supra, at para. 9).
ORDER
21The Tribunal makes the following Order:
The request to dismiss the Complainant is denied.
Dated at Toronto, this 22nd day of September, 2009.
“Signed By”
Brian Eyolfson
Vice-chair```