HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Keith Ramoutar
Applicant
-and-
Toronto Community Housing Corporation and Pat Milana
Respondents
CASE RESOLUTION CONFERENCE DECISION
Adjudicator: Mark Hart
Indexed As: Ramoutar v. Toronto Community Housing Corporation
APPEARANCES BY
Keith Ramoutar, Applicant ) Barbara Adamson, ) Representative
Toronto Community Housing Corporation ) Michelle Wong, and Pat Milana, Respondents ) Counsel )
1This is an application filed September 5, 2008 under section 53(3) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaint in this matter had been filed with the Ontario Human Rights Commission on September 28, 2007.
2An initial case resolution conference in this matter proceeded on December 8, 2008 to clarify the allegations being raised by the applicant in this proceeding and to deal with the respondent’s requests to defer and/or dismiss the Application. These matters were addressed in the Tribunal’s decision dated December 12, 2008. The case resolution conference on the merits of the Application proceeded on January 12, 14 and 19, 2009.
3As a result of the December 12, 2008 decision, part of the Application was deferred pending the result of an ongoing arbitration proceeding. The remaining portion of the Application alleges that the applicant was subjected to discrimination because of his race, colour and ancestry in the following respects:
a. That the applicant experienced racial discrimination in relation to a competition for Superintendent positions held in 2005, in that
i. marks were withheld from the applicant on the written examination by Human Resources at the direction of the personal respondent;
ii. Human Resources failed the applicant in his oral examination despite the applicant having received passing marks from the interview panel;
b. That in June 2006, the applicant’s manager made racial comments at staff meetings and later made a comment about the applicant that he regarded as a racial comment, and that management failed to take appropriate steps to address these allegations;
c. That in August 2006, the applicant was transferred from North Regent Park without proper notice, and it is alleged that both the transfer and the inadequate notice were because of the colour of the applicant’s skin;
d. That various comments are alleged to have been made by the personal respondent that are alleged to be racial comments;
e. That the former Director of Human Resources asked that the applicant not be placed on the acting Superintendent list and was very blatant about not liking the applicant due to the colour of his skin, and further failed to take appropriate steps to address a slanderous e-mail about the applicant sent by a co-worker;
f. That when the applicant was off work in August or September 2006, the personal respondent ordered Payroll to pay the applicant by direct deposit and then immediately took the money out of his bank account, and it is alleged that this was discrimination;
g. That the applicant was denied training for the Superintendent position that was provided to Local 416 employees and later extended to Local 767 employees other than the applicant and the applicant only received limited computer training, and that this was racial discrimination.
PROCESS
4All parties consented to the following process for the conduct of the proceeding:
a. The evidence from witnesses for all parties would be heard on an issue-by-issue basis.
b. The adjudicator would conduct the questioning of all witnesses. After the adjudicator had completed questioning of all witnesses on an issue, the parties would be invited to identify any further areas of questioning in relation to that issue that they would like the adjudicator to conduct.
c. There would be no order excluding witnesses, and the adjudicator could address questions to any witness with relevant evidence on the issue being addressed in any order and ask questions back and forth between witnesses.
d. Before any witness was finally excused from testifying, the party who proposed calling this witness would be given an opportunity to identify if there were any further areas of relevant evidence from this witness which had not already been canvassed and the opposing party would be given an opportunity to identify if they required an opportunity to cross-examine the witness. The adjudicator would determine whether any further questioning or cross-examination was required.
e. All documents that had been submitted by the parties to the Tribunal would be accepted into evidence and could be relied upon by the adjudicator whether or not they were formally identified by any witness.
f. The parties would be expected to come to the hearing with a brief written statement of each witness’s work history at the Toronto Community Housing Corporation (“TCHC”) and involvement with union activities, if any, and their roles and responsibilities during the time period in question, which would be accepted into evidence by the adjudicator.
5At the commencement of the hearing on January 12, 2009, the applicant’s representative raised an allegation about a witness having been intimidated by the respondent. This allegation was based upon a phone conversation that the representative stated that she had with the witness. The witness, however, was no longer employed by TCHC and had not been served by the applicant with a summons. I indicated that in the absence of the witness being under summons, I had no power to compel her to attend the hearing, nor was I prepared to act on the basis of hearsay in relation to as serious an allegation as witness intimidation.
6Following the completion of the hearing in this matter, the applicant’s representative submitted to the Tribunal a further bound volume of material under cover of her letter dated February 6, 2009. As this material appears to be relevant only to the matters deferred to the arbitration proceeding, this material was not considered by the Tribunal in rendering this decision.
BACKGROUND
7The respondent corporation (“TCHC”) provides social housing services, and was formed as a result of the amalgamation of two predecessor companies, Toronto Housing Company (“THC”) and Metro Toronto Housing Authority (“MTHA”), effective January 1, 2002. Employees at the former THC and MTHA were represented by two separate locals of the Canadian Union of Public Employees, with Local 416 representing the employees at THC and Local 767 representing the employees at MTHA.
8The applicant was an employee at MTHA since June 1986 in the position of caretaker, which was later re-classified as General Maintenance Mechanic, and later worked as an acting Superintendent. The applicant also was very active in Local 767 as a shop steward, grievance chair from 1994 to 2001, and as a member of various union committees including health and safety, race relations and labour-management.
9The personal respondent, on the other hand, was an employee at THC commencing in 1985 as a Housing Clerk and progressing to Project Superintendent in 1988. Until 2005, the personal respondent was very active in Local 416 as chief shop steward / unit chair from 1990 until November 2005, when she resigned to become a Labour Relations Consultant with TCHC.
10The matters at issue in this case took place not only in the context of the amalgamation of the two housing companies, but also in the context of the amalgamation of the two union locals. The amalgamation of THC and MTHA into TCHC resulted in a conflict of two management cultures particularly as it related to the Superintendent position which is very much at issue in this Application, with the Project Superintendent model used at THC winning out. Similarly, the amalgamation of the two union locals resulted in a conflict between the leadership of Local 416 and Local 767, which included both the applicant and the personal respondent. It is in the context of the conflicts and clash of cultures at both the management and union levels that the events at issue in this case played out.
THE 2005 PROJECT SUPERINTENDENT COMPETITION
a) The Written Examination
11The applicant participated in the competition for Project Superintendent positions and wrote an examination on May 31, 2005. The original passing grade for the examination had been set at 70%, but a large proportion of the candidates, and especially candidates from Local 767 and the old MTHA model, did not reach the 70% pass threshold. This resulted in extensive discussions between the union and management which ultimately saw the pass threshold reduced to 60% and then to 58%. Management also agreed, at the union’s request, to review and re-mark all candidates with examination scores that fell within the range of 49 to 59%, to see if marks could be found to cause the candidate to reach the pass threshold.
12The applicant’s written examination shows a mark of 58%; however, it is clear that his examination had been re-marked (perhaps twice) and that as a result he had received at least an additional 7 marks out of a total of 142 in order to reach the 58% mark. The applicant and his union representative met with a Human Resources consultant to review the applicant’s written examination. At this meeting, the applicant alleges that he and his union representative found 14 additional marks which they felt he should have been awarded. The applicant alleges that through the review and re-marking process, other applicants who had less experience than him and who had initially scored lower than him surpassed him and were able to reach the 60% threshold, whereas he remained unchanged at 58%.
13At the hearing, the applicant and his union representative were repeatedly asked to identify the 14 marks which they allege were withheld. On the final day of the hearing, the applicant’s union representative went through the examination and identified a number of questions where he believed that the applicant should have received additional marks. The Human Resources consultant, who was in attendance throughout the hearing and who had her notes of the review meeting from 2005, states that some questions where the union representative alleged that the applicant should have received additional marks were not raised with her at the time. In addition, the answer key for the written examination had been provided by the respondent, and it was apparent to me that the applicant was not entitled to the additional marks being claimed.
14Also received into evidence was a table listing candidates who had received a mark of between 49 to 59% on the written examination, for whom the union had requested a review and re-marking. The applicant’s name was at the top of this list with a mark of 58%. Also submitted was a handwritten list of candidates whose mark had changed as a result of re-marking. This evidence is clearly imperfect, as the starting marks on the handwritten list do not always perfectly correspond to the marks as shown on the typewritten table. However, this list does show a number of candidates who were listed on the table below the applicant receiving a grade of 60% or higher as a result of the re-marking. The applicant’s name is not on the handwritten list, and I was told that this was because his mark didn’t change. Another candidate from the typewritten list also is not on the handwritten list, and I was told that this too was because this candidate’s mark hadn’t changed.
15The allegation made by the applicant is that marks were withheld from him by Human Resources at the direction of the personal respondent. There is no evidence to support this allegation. The personal respondent was still an employee and a member of Local 416 at the time these events occurred, and there is no evidence that she played any role in or provided any direction regarding the marking of the applicant’s examination. Further, there is no evidence that any marks in fact were withheld from the applicant. It is clear that the applicant and his union representative believed at the time and continue to believe that the applicant should have been awarded additional marks. But on the basis of the answer key, it is equally clear that the applicant was not entitled to these additional marks.
16The allegation has been made that at one of the union-management meetings to discuss the written examination issue, the former Director of Human Resources made the comment that if certain people around the table had supported a proposal to their membership, maybe they would have passed. This comment is alleged to reference a proposal regarding the Project Superintendent position that had been rejected by the union, largely due to the lack of support by Local 767 leadership including the applicant. The inference the applicant wishes me to draw is that his failure to pass the written examination was payback for his failure to support management’s proposal. In contrast, the former Director, while acknowledging that he may have made a comment of this nature, states that the intent of such a comment would have been that the applicant’s lack of support for the Project Superintendent model being implemented by management may have contributed to his lack of success on the exam. However, no matter how this remark is interpreted, there is no evidence that the former Director played any role in the marking of the applicant’s exam nor is there any evidence that marks that should have been awarded to the applicant were withheld.
17As a result, I find no basis in the evidence to support this allegation.
b) The Oral Examination
18As a result of an agreement between management and the union, the pass threshold for the written examination was lowered and a number of candidates, including the applicant, were allowed to proceed to the next stage of the competition, which was an oral examination by a panel of three members.
19At the hearing, the applicant was clear that no allegation was being made that the panel members engaged in racial discrimination. Rather, the allegation is that the applicant passed the oral examination, but was nonetheless failed by Human Resources. This allegation is simply not supported by the evidence.
20The respondent provided a copy of the oral interview notes made by each of the panel members, which resulted in an overall score for the applicant of 51.5%. This was well below the pass threshold of 70%.
21The applicant’s allegation that he passed the oral examination is premised upon a meeting he and his union representative had with one of the panel members and a Human Resources consultant. Both the applicant and the union representative allege that at this meeting, the panel member stated that the applicant had done “very good” in the first two parts of the oral examination and “good” in the third part. On the basis of this alleged statement, the applicant and his union representative believe that the applicant should have passed.
22The panel member states that it makes no sense to him that he would make such a statement, since there weren’t three parts to the oral examination – there were five questions. In addition, the applicant’s version of events is contradicted by the union representative’s own notes of the meeting which record that the applicant was told that he had received 51% on the oral examination and which further record the applicant as asking what his weaknesses were, to which the panel member responded that in his personal opinion, the applicant’s technical skills and management skills were extremely good but his community development skills were lacking “but not bad”.
23In the end, there is no evidence to support the applicant’s allegation that he passed the oral examination.
ALLEGED RACIAL COMMENTS BY REGENT PARK MANAGER
24A new Manager arrived at Regent Park in May 2006. This manager described himself at the hearing as being a Black African man from Nigeria. In June 2006, early in his tenure at TCHC, the Manager held various meetings with staff to introduce himself.
25One of these meetings was at 355 Gerrard St., where the applicant was acting Superintendent. The applicant and a union executive member who was present for this meeting both state that the Manager said that he was from a warrior tribe in Africa and that he was prepared to take on anyone, whether they be union or management. It is further alleged that the Manager said, “you Jamaican and Caribbean people should be lucky or thankful to have a job like this”. The evidence indicates that approximately 50% of the staff at 355 Gerrard at this time were Black. The applicant states that he personally took offence to this comment, as he is of half-Caribbean descent.
26A meeting with another group of staff was held at 407 Gerrard St. The applicant was also present at this meeting, and states that the Manager said basically the same type of thing about people of Jamaican and Caribbean descent. The evidence indicates that approximately 80% of the staff at this meeting were Black. The applicant further states that at this meeting, the Manager used the word “nigger”, although the applicant was not present when this word was used. Other witnesses testified that they were told by attendees at the meeting that the Manager had used this word, but could not provide any details as to the context.
27There was only one witness called by the applicant who was present at the 407 Gerrard meeting when the word “nigger” is alleged to have been used. This witness is a former supervisor at Regent Park and attended the staff introduction meetings with the Manager. This witness confirmed that the Manager came in and called himself a warrior and said that he was ready to battle with anybody, and talked about culture, the Caribbean islands, slavery, and coming to Canada. This witness believes that it is in the context of talking about slavery that the Manager used the word “nigger”. This witness states that he was “just floored” when the Manager said this, because the Manager is a person of colour. This witness states that the Manager didn’t call anyone a “nigger”, but used the term more in the context of speaking about the issue of slavery.
28The former supervisor provided evidence regarding other statements alleged to have been made by the Manager that contradicts the applicant’s version of events. This witness didn’t recall the Manager saying that people of Jamaican or Caribbean descent should be thankful to have jobs at TCHC, although this witness does not appear to have been an active listener throughout these meetings. The evidence of this witness was that the tone of the meeting was that staff should be grateful that they have jobs, but this was not directed at any particular race, ancestry or ethnic origin and was indicated more generally in a way that could include the former supervisor himself, who is White.
29I also received into evidence a document prepared by the applicant’s representative addressed to me which states that a number of employees had requested that a letter be prepared and submitted to the Tribunal at the hearing to state that the Manager made the following comments at the meetings at 355 Gerrard and 407 Gerrard: “he was an African warrior”; “he is not afraid to put the gloves on with anyone”; “he is not afraid to run over anyone who would not listen to him”; and “you Caribbean and Jamaican people are lucky to have a job with this company”. I was told that the seven individuals who signed this document felt intimidated and were afraid to appear as witnesses to testify before the Tribunal. None of these individuals had been served with a summons. While I respect that any witness who continues to work for a respondent company may feel a certain amount of apprehension about appearing in a legal proceeding and providing evidence against their employer, I fail to see how these employees are assisted in their apprehension by having a document they have signed presented at the hearing where their evidence will be known to the employer just the same. I ruled that I would accept this document on the basis of my discretion to allow hearsay evidence, but in the circumstances would accord it very little weight.
30The Manager appeared at the hearing and denied that he made any of the comments alleged, including the comments about being an African warrior and being prepared to do battle with anyone. The Manager states that he did not make any comments about people of Jamaican or Caribbean descent, and did not even use the words Jamaican or Caribbean and doesn’t know why he would use such words in an operational setting. The Manager vehemently denied using the word “nigger” at the meeting at 407 Gerrard, and was at pains to make sure that I understood that the word originates from the term “Negro” which would apply to him as a Black man. The Manager was particularly offended by the accusation that he had used this term.
31Notwithstanding the impassioned manner in which the Manager gave his evidence, I do not accept his denials as credible. Of particular note is his denial that he referred to himself as an African warrior and said that he was prepared to do battle with anyone. While there is a certain lack of consistency in some of the evidence given by the applicant and his witnesses, all are uniform in their evidence that the Manager made these statements. In this regard, I prefer the evidence of the applicant and his witnesses over the contrary evidence of the Manager.
32I find that the Manager did make a comment to the effect that “you Jamaican and Caribbean people should be lucky or thankful to have a job like this”. While I appreciate that the former supervisor’s evidence is to the contrary, I accept the evidence from the supervisor himself and from a union executive member that the former supervisor was either not attentive or not physically present throughout the entirety of the meetings. In making this finding, I have accepted the evidence of the applicant and the union executive member and have accorded no weight to the document signed by the seven employees.
33The respondent submitted that even if I made a finding of this nature, it would not constitute “harassment” in violation of the Code on the basis that there was no “course of conduct” as required by the definition of “harassment” in s. 10(1). I do not agree. In my view, it is sufficient to constitute a “course of conduct” that the Manager repeated this comment at two separate meetings with staff, both of which were attended by the applicant. In addition, I find that the serious nature of the comment, as coming from the Manager as a person in authority and singling out Jamaican and Caribbean employees as needing to be thankful for their jobs, is sufficient to constitute discrimination in violation of s. 5(1) of the Code. While this comment was directed generally at staff and not specifically at the applicant, I find that the applicant was personally and adversely affected by the comment as a person of half-Caribbean descent. Accordingly, I find that by making this comment, the Manager has violated s. 5(1) of the Code, for which the respondent is deemed to be liable pursuant to s. 46.3 of the Code, and that the Manager also has violated s. 5(2) of the Code for which the respondent is liable pursuant to the organic theory of corporate liability due to the Manager’s position as a member of management.
34With regard to the grounds of discrimination and harassment upon which a violation is found, the original complaint filed by the applicant cites race and colour as the grounds upon which violations of the Code are alleged. While the singling out of Jamaican and Caribbean employees may also be regarded as discrimination because of “place of origin”, “ethnic origin” or “ancestry”, this does not preclude a finding that such discrimination is also based upon race and colour. The concepts of “race” and “colour” are sufficiently broad to encompass the singling out of Jamaican and Caribbean employees, especially when the evidence indicates that the majority of the employees in the two locations where the comment was made were Black. In addition, the fact that a racial comment is made by a person who shares the same skin colour as the targets of the comment does not negate the discriminatory effect of this comment.
35With regard to the allegation that the Manager used the term “nigger” at the meeting at 407 Gerrard, I accept the evidence that this term was used. However, the context in which this term was used is entirely unclear from the evidence, with the best evidence being that it was used in the context of comments being made by the Manager about slavery. In this context, I have no evidence as to the manner in which the term was used, and whether, for example, it was being used to identify how Black African slaves were viewed and treated by their White oppressors. In addition, in assessing the use of this term in the context in which it was used, I am mindful of the Manager’s identity as a Black African man. Having regard to all of these circumstances, and in the specific context of this particular case, I do not have sufficient evidence to conclude that the mere use of this term by the Manager constitutes a violation of the Code. In addition, the applicant was not present when the comment was made and appears to have pursued the issue on behalf of union members who had heard the comment and were upset by it, rather than on his own behalf.
THE TRANSFER OUT OF REGENT PARK
36On August 16, 2006, the applicant was called to a meeting with the Manager at Regent Park and advised that his acting assignment as a Project Superintendent would end effective that Friday, August 18, 2006 and he would revert to his home position of Handyworker Grade 2. The applicant also was advised that he would be transferred to another work location outside of Regent Park effective Monday, August 21, 2006.
37The applicant alleges that his transfer out of Regent Park and the short notice that he received both resulted from racial discrimination. The applicant points to the following factors in support of this allegation: that he had greater seniority than other Handyworkers who were not transferred out; that the notice provided was less than the two weeks notice required by Article 3.10(a) of the collective agreement when permanently transferring a shop steward; that subsequent to his transfer, other employees with less seniority than him were transferred into acting Project Superintendent positions; and that the two individuals who were transferred out of Regent Park at that time were the only two Black acting Superintendents.
38The respondent’s stated reasons for the transfer are not entirely consistent. In the respondent’s statement of additional facts, it is stated that the applicant was transferred out of Regent Park for two reasons: one, because he had been there for a long time and was having difficulty adapting to the new operations model that was being implemented and was allegedly even displaying an “unwillingness” to adapt to the new operations model; and two, because there had been an incident where the applicant was alleged to have harassed a colleague. In this statement, it is indicated that the transfer decision was made by the Director of Property Management.
39However, the evidence received at the case resolution conference was less consistent as to the reasons for the transfer and who made the decision. While the Director of Property Management may ultimately have made the transfer decision, it appears from the evidence that this decision was entirely based upon the exercise of the Regent Park Manager’s judgment as to whom should be moved. Further, while the evidence of Human Resources staff supports that the applicant’s resistance to the new operational model was one of the reasons for the transfer, this was adamantly and repeatedly denied by the Regent Park Manager.
40According to the Regent Park Manager, he was over-staffed with Handyworkers at Regent Park in comparison with other community housing units at TCHC. As a result, when the applicant’s acting assignment ended and he reverted to his home Handyworker position, the Manager needed to reduce his complement of Handyworkers from two to one in the section of Regent Park to which the applicant was assigned. While the applicant did have more seniority than the other Handyworker in this section who remained at Regent Park, the Manager states that the critical point in deciding to transfer the applicant was the harassment allegation that had been raised against the applicant by another employee.
41The evidence regarding the harassment allegation is this. On May 15, 2006, an employee came to the Regent Park Manager alleging that he had been harassed by the applicant but refused to make a formal complaint. Then on July 12, 2006, this same employee came to the Manager again with further allegations of harassment but once again refused to make a formal complaint. The employee was, however, re-deployed to another section of Regent Park away from the applicant. The Manager raised the issue with the Director of Property Management and was told that he needed to deal with it even in the absence of a formal complaint. Accordingly, the Manager spoke to the applicant, and the Manager and another member of management met with the applicant and his union representative on July 14, 2006 to discuss the issue. The applicant provided his statement in response to the allegations, in which he denied that he had harassed this employee and identified that this employee had engaged in erratic behaviour in the past. Both the applicant and his union representative understood that the issue was resolved at the conclusion of this meeting, which is supported by notes made at the time by the union representative. The evidence indicates that the Manager reported the results of his meeting with the applicant to the Director of Property Management the following week, on July 20, 2006, and was told to arrange a meeting with the complaining employee and his union representative away from Regent Park in order to discuss the allegations further and try to get a written statement. There is no evidence before me that any such meeting ever happened. In fact, the applicant’s evidence, which is supported by other witnesses, is that the complaining employee gave him a fruit basket as a peace offering and there was no further pursuit of the issue.
42I do not accept that the allegations of harassment by this employee were a factor in the decision to transfer the applicant for two reasons. First, there is no evidence to indicate that this issue was being actively pursued by the complaining employee. Second, the complaining employee already had been moved to another section of Regent Park away from the applicant before the transfer decision was made, so it does not make sense that this would continue to be a factor.
43The allegations of harassment against the applicant also do not explain the transfer of the other Black Handyworker. In his case, the Regent Park Manager once again stated that he needed to reduce his complement of Handyworkers by one in the section of Regent Park where this employee was working. However, even though the Black Handyworker had more seniority than the other Handyworker in that section, the Manager stated that he decided to transfer the Black Handyworker because the other Handyworker, who is White, had a disability that required accommodation. There was no evidence before me that the White Handyworker’s disability could not have been accommodated in another location.
44In any event, I do not accept the Manager’s evidence that he was over-staffed with Handyworkers and that this was one of the reasons that the applicant and the other Black Handyworker needed to be moved. In an e-mail dated August 16, 2006, the Manager wrote to the Director of Property Management and stated, “I have a problem with me losing a HW as it is I am struggling with staffing. Yes we might have the numbers but how many can do their job as of last count we had 7 modified, 2 cannot work for personal reason that are private. I am sorry until we sort out the capabilities in Regent we cant let go off a body.” In response, the Director states: “don’t be so short sighted on this one – these guys need to move, now is the time.” To which the Manager responds, “You are right we need to be strategic here. If I can get a better compliment of custodians on the long run I will be okay.”
45In addition, the timing of the transfers of both of these employees is suspect. The evidence indicates that TCHC had completed its competition process for permanent Project Superintendents and needed to place the successful candidates in their assigned positions. This was stated to be the reason that the applicant and the other Black Handyworker needed to be relieved of their acting Superintendent assignments and returned to their home positions, which in turn led to the alleged over-staffing of Handyworkers and the need for the transfers out of Regent Park. And yet the evidence of the applicant and his supporting witnesses, which was not contradicted by TCHC, is that after the applicant’s transfer, other Regent Park employees with less seniority were stepped up to acting Superintendent positions for a period of time pending the arrival of the permanent Superintendents. This begs the question as to why the applicant and the other Black employee needed to be transferred out of Regent Park at the time this was done.
46In the end, as there is no direct evidence that race was a factor in the transfer decision, the issue of whether the applicant’s transfer out of Regent Park constitutes racial discrimination in violation of the Code falls to be determined in accordance with the following well-established principles applicable to circumstantial evidence cases.
Once a prima facie case of discrimination has been established, the burden shifts to the respondent to provide a rational explanation which is not discriminatory.
It is not sufficient to rebut an inference of discrimination that the respondent is able to suggest just any rational alternative explanation. The respondent must offer an explanation which is credible on all the evidence.
A complainant is not required to establish that the respondent’s actions lead to no other conclusion but that discrimination was the basis for the decision at issue in a given case.
There is no requirement that the respondents' conduct, to be found discriminatory, must be consistent with the allegation of discrimination and inconsistent with any other rational explanation.
The ultimate issue is whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent.
47In this case, I find that the applicant has satisfied his burden of establishing a prima facie case of racial discrimination on the following basis: that the transfers affected only himself and another Black acting Superintendent at Regent Park; that the transfers were made out of seniority; and that following the transfers, other White employees with less seniority were placed in acting Superintendent positions at Regent Park. The existence of this prima facie case is further supported by my finding, as set out above, that the Regent Park Manager made the statement that Jamaican and Caribbean employees should be thankful that they have a job at TCHC. In the Manager’s August 16, 2006 e-mail to the Director, he refers to getting a “better compliment(sic) of custodians” as a consequence of the transfers out of Regent Park of two Jamaican or Caribbean Handyworkers. In my view, this evidence supports the inference that these two Jamaican or Caribbean employees, who were both active union executive members in Local 767 and had voiced concerns about management’s shift to the new operational model and its effect on Local 767 members, were not sufficiently thankful for their positions and needed to be moved in order to achieve a better complement of custodians. This singling out of one group as needing to be thankful for their positions, namely Jamaican and Caribbean employees who are identifiable on the basis of race and colour as discussed above, provides further support that race and colour were factors in the transfer decisions.
48The establishing of this prima facie case shifted the evidentiary burden to the respondent to come forward with a credible non-discriminatory explanation for the transfers. As stated above, I find that the respondent TCHC has provided inconsistent explanations for the applicant’s transfer which I find not to be credible for all of the reasons reviewed above. It may be, as stated in the respondent’s statement of additional facts, that the real reason for the transfer of the applicant and the other Black Handyworker was that they were perceived not to be supportive of the new operational model being implemented by TCHC. However, I put this proposition to the Regent Park Manager repeatedly, and he adamantly denied that this was the case. In fact, the only respondent witness who was clear in her evidence that this was one of the reasons for the transfer was the personal respondent, and by her own evidence she did not play a direct role in the transfer decision. It is not my role as the adjudicator to guess at the respondent’s motivation for the transfers; I need to be provided with evidence of a consistent and credible explanation. And in this case, I find that I was not provided with such evidence.
49As a result, in the absence of a credible non-discriminatory explanation for the applicant’s transfer, I find that the transfer constitutes discrimination because of race and colour in violation of s. 5(1) of the Code.
50With regard to the issue of the lack of advance notice of the transfer, I already have discussed the suspect timing of the transfer in reaching my conclusion that the respondent’s non-discriminatory explanation was not credible. However, I do not make any separate finding that any failure to abide by a collective agreement requirement for additional notice for the applicant as a shop steward provides a further basis for a finding of racial discrimination, as I regard this as strictly a collective agreement issue.
51Finally on this issue, the finding of racial discrimination that I have made in relation to the applicant’s transfer applies only to the respondent TCHC, as the evidence does not indicate that the personal respondent had any role in the transfer decision.
REPORTS TO MANAGEMENT
a) The Racial Comments by the Regent Park Manager
52The applicant’s evidence is that on the day of the meeting at 407 Gerrard, he left voicemail messages for the personal respondent and the Human Resources consultant asking them to call him, but didn’t state why or identify the comments made by the Regent Park Manager.
53The applicant and his union representative state that they did raise the Manager’s comments with the Race Relations Office at TCHC and were told to put something in writing, but did not follow up with this. At the same time, the applicant’s union representative states that the person in the Race Relations Office with whom they met took notes of what they told him and said that there would be an investigation of what he was told verbally. The respondents did not call anyone from its Race Relations Office or provide any evidence that the racial comments were investigated or addressed in any way.
54While it may be preferable for an employer to have a written formal complaint prior to conducting an investigation or taking steps to address an allegation of discrimination or harassment, this is not a requirement in order for an employer to have the responsibility to take action. Indeed, TCHC management itself recognized this in responding to the verbal allegations of harassment made against the applicant, where the Director of Property Management was clear in his direction that steps needed to be taken to address these allegations even in the absence of a written statement or formal complaint by the employee.
55In this instance, however, there is no evidence before me to indicate that any steps were taken by TCHC to respond to the verbal report to the Race Relations Office by the applicant and his union representative regarding the racial comments made by the Regent Park Manager. I find that this verbal report was sufficient to trigger TCHC’s legal responsibility under the Code to take reasonable steps to address alleged discrimination, and that TCHC failed to fulfil this responsibility. Accordingly, I find that TCHC’s failure in this regard supports a further violation of s. 5(1) of the Code.
56The applicant’s union representative states that he also spoke to the personal respondent and told her about the racial comments, but the context in which this happened is unclear. I do not find that there is sufficient reliable evidence to conclude that this information was provided to the personal respondent in a manner that charged her with personal responsibility to take action. Accordingly, I make no finding against the personal respondent on this issue.
b) The Applicant’s Transfer
57The applicant states that he also spoke to the Race Relations Office about his transfer, and was told to put his issues in a letter addressed to TCHC’s Chief Executive Officer. The applicant did this by letter dated August 25, 2006, in which he raises issues pertaining to his transfer out of Regent Park and his experience in the formal selection process for the Project Superintendent position. In this letter, the applicant states: “I question whether I have been victimized due to my race and ethnicity”.
58The employer’s evidence is that this letter was reviewed in conjunction with the Race Relations Office and outstanding grievances that already had been filed by the applicant which addressed both the selection process and the transfer. On this basis, the employer states that there was nothing new in the letter to the Chief Executive Officer that wasn’t going to come before the employer through the grievance process. Accordingly, TCHC responded to the applicant by letter dated September 28, 2006 to state that the issues raised by the applicant were virtually identical to those raised by his grievances, and that TCHC was not prepared to open a parallel process to review the same allegations that were subject to the grievance process. Admittedly, the September 28, 2006 letter refers to the applicant’s August 5, 2005 grievance which deals only with the selection process, but there is no dispute that by the time the September 28, 2006 letter was sent out, the applicant also had filed a second grievance dated September 6, 2006 to address the transfer issue.
59In my view, whether it is reasonable for an employer to defer to a grievance arbitration process rather than taking independent steps to deal with allegations of discrimination and harassment will depend upon all of the individual circumstances of the case. In the circumstances of this specific case, given the tentative nature of the allegation as framed in the applicant’s August 25, 2006 letter (i.e. that he “questions” whether he’s been victimized by his race or ethnicity), the re-raising of selection process issues that were the subject of a grievance that was more than a year old, and the overlap between the transfer issues raised in the letter and the issues raised in the September 6, 2006 grievance, I find that it was not unreasonable for the employer to defer to the grievance arbitration process.
ALLEGED COMMENTS BY THE PERSONAL RESPONDENT
a) Alleged comment about the mother of the Applicant’s son
60The applicant states that sometime in 2005, he was in his workshop at 355 Gerrard St. together with his son and a Local 767 executive member, and the personal respondent was there at the same time. The applicant states that right above his metal desk, he has pictures of himself, his son and his son’s mother. The applicant states that the personal respondent was looking at a picture of his son being held by his son’s mother, and the personal respondent asked, “Who’s that?” in reference to the woman. The applicant states that when he explained who the woman was, the personal respondent said, “Oh, she’s White”. The applicant’s witnesses all recall the Local 767 executive member asking the personal respondent what she meant by that, to which the personal respondent did not respond. The personal respondent recalls meeting the applicant’s son on one occasion, which appears from the evidence to have been much earlier than 2005, but denied making any comment about the son’s mother.
61When asked why he regarded what the personal respondent said as a racial comment, the applicant states that he took personal offence to the comment and regards it as derogatory and disgraceful. The applicant’s son states that he took the comment to mean that his mother was not supposed to be White, and that the personal respondent was disgusted that his mother is White. The Local 767 executive member states that the look on the personal respondent’s face was one of disgust when she made the comment, and that this was why he asked the question. He says that having dealt with the personal respondent before, he could tell that she was uncomfortable and not pleased.
62This alleged comment was not raised in the complaint filed by the applicant with the Commission on September 28, 2007 nor is it referenced in the exhaustive affidavit that the applicant swore on September 5, 2007 nor in the summary of events document that was filed with the Tribunal on November 3, 2008, which material was filed in furtherance of the applicant’s obligation to file a statement of any additional facts that he intended to rely upon at the case resolution conference. Rather, this allegation appears to have emerged for the first time in the context of the list of witnesses and summary of witness evidence filed by the applicant on November 18, 2008 in advance of the initial case resolution conference date, in which the applicant’s son is identified as being able to speak to “the racial slurs made about his Scottish / Irish mother” by the personal respondent.
63This is not to say that I don’t believe that the personal respondent made the comment attributed to her. To the contrary, I would be prepared to find that she did make the comment alleged. However, by the time this allegation emerged in late November 2008, many incidents had occurred in relation to the applicant with which the personal respondent had direct involvement, the bulk of which have been deferred to the arbitration proceeding. I am concerned that in the context of these latter events, the personal respondent has been demonized by the applicant and that relatively innocuous comments from the past have been dredged up and re-examined for indications of nefarious intent. In this context, I simply am not prepared to place reliance upon highly subjective perceptions that the personal respondent expressed disgust in making the comment alleged, as opposed to an observation or perhaps an expression of surprise that a White woman is the mother of a Black child. I do not find that this allegation supports any finding of a violation of the Code as against the personal respondent.
b) Alleged comments about the Applicant’s abilities
64The applicant alleges that the personal respondent stated repeatedly that the applicant was not qualified to be Superintendent, yet claimed to make special compensation to assist his lack of abilities and further singled the applicant out as being incapable of keeping up with other employees and requiring special arrangements to accommodate his inabilities by claiming that the examination pass mark was lowered to 58% specifically for the applicant, all of which is alleged to constitute racial discrimination. The applicant further alleges that the personal respondent made comments that he was not good enough for the Superintendent job, that his abilities to do the job were not good enough and that he didn’t have the experience or proper training to be a Superintendent, and it is alleged that these comments were based on race in that the personal respondent doesn’t want a Black man in a supervisory position.
65The source of these alleged comments relates to discussions during the period when MTHA and THC were merging, as were their respective union locals 767 and 416. As noted above, a different Superintendent model was in use at THC, where the personal respondent worked, than was used as MTHA, where the applicant worked. In this context, the personal respondent expressed her view that Superintendents from MTHA, including the applicant, lacked certain qualifications necessary to work as Project Superintendents in accordance with the THC model. This was the personal respondent’s view, with which the applicant and others from local 767 disagreed. But there was nothing improper, inappropriate or discriminatory in the personal respondent holding or expressing her view in this regard. There is no evidence to support the allegation that the personal respondent didn’t want a Black man in a supervisory position, or that her views as to the relative qualifications of local 767 as opposed to local 416 members were targeted at the applicant because of his race.
66With regard to the issue of the written test score being lowered to 58% in order to allow the applicant to pass the first stage of the Superintendent competition, this is factually accurate. Moreover, this was an agreement reached between TCHC management and the union to the applicant’s benefit, with the personal respondent acting on behalf of the union at that time. I see no basis to support the allegation of racial discrimination in relation to this agreement.
c) Other alleged comments by the personal respondent
67The applicant raised three further alleged comments by the personal respondent which were claimed to be racially discriminatory.
68One of these comments is a comment attributed to the personal respondent at the conclusion of a union ratification meeting held on May 11, 2005. At this meeting, the union was voting on a proposal that was supported by the personal respondent, but was opposed by the applicant and others from local 767. The proposal was defeated. After the votes were counted, it is alleged that the personal respondent came over to three local 767 executive members, including the applicant, and pointed her finger and said, “You’ll pay for this”. The personal respondent denies that she made this comment and states that she was otherwise engaged in dealing with an issue raised by another union member.
69The next comment is alleged to have been made by the personal respondent after the results of the written examination for the Superintendent competition had been tallied. One local 767 member alleged that the personal respondent said to him, “If you weren’t such good friends with [the applicant] and [another local 767 executive member], you would have got one of those jobs”. This comment is alleged to have been made during the period when issues regarding the written examination were being addressed by the union with TCHC management, which would have been sometime in June or July 2005. The personal respondent denies making the comment as alleged, but states that she may well have said that if this individual hadn’t listened to the applicant and others from local 767 and had voted differently at the ratification meeting, then things might have been different. The personal respondent states that if the proposal worked out with management had been ratified, then the Superintendent positions would have been split evenly as between local 416 and local 767 members. In the end, without the proposal being ratified, Superintendent positions were awarded solely on the basis of marks, which advantaged local 416 members. So the personal respondent believed at this time that this individual might have gotten the Project Superintendent job if he hadn’t listened to the applicant and other local 767 members, and if the proposal had been ratified.
70The personal respondent was a union executive member at the time both of these alleged comments were made. With regard to the first comment, even if it was made as alleged, it appears to have been a comment made in the heat of the moment following a bitter disagreement over the proposed ratification. I see no basis upon which I can link this to racial discrimination. With regard to the second alleged comment, the evidence indicates that the personal respondent, as a union executive member, had no role in deciding which candidates did or didn’t pass the Superintendent examination. I accept her explanation that she believed that, if the proposal had been ratified, local 767 members would have fared better in terms of the results of the Superintendent competition. But there is no evidence before me to indicate that the personal respondent, working from the union side, had any secret ability to influence the competition results or that she somehow caused there to be adverse results for the applicant or his supporters.
71The final comment occurred in November 2006 in the context of a phonecall made by the personal respondent to the applicant at his home while he was off on sick leave. During this call, there is no dispute that the personal respondent raised the possibility of the applicant returning to work at the call centre. The applicant alleges that this was an adverse comment reflecting upon his abilities and is thereby racial discrimination. There is no evidence to support this. While there is a factual dispute as to what precipitated this call, I find that the comment was made in relation to exploring options to get the applicant back to work, and the possibility of the call centre was raised in this context as there was an outstanding vacancy at that time. I find nothing in this comment to support the allegation of racial discrimination.
ALLEGATIONS RE FORMER DIRECTOR OF HUMAN RESOURCES
a) The acting Superintendent list
72The applicant alleges that the former Director of Human Resources asked that the applicant not be placed on the acting Superintendent list and was very blatant about not liking the applicant due to the colour of his skin. This allegation was based upon a comment purportedly made by the former Director to a former supervisor at Regent Park. However, the former supervisor’s evidence did not support this allegation. This witness does recall the former Director saying generally that he didn’t want to use people from the former MTHA model as acting Superintendents, and that he wanted to bring in people from the THC side to perform these roles. But this witness didn’t recall any occasion when the former Director spoke to him specifically about the applicant and said that he didn’t want the applicant on the acting Superintendent list. As a result, the evidence does not support this allegation.
73With regard to the latter part of the allegation, this was raised for the first time at the initial day of the hearing held in December 2008, at that time in support of the allegation that the former Director’s alleged desire not to have the applicant on the acting Superintendent list was racially motivated. However, by the time of the hearing, this allegation morphed into a freestanding allegation that the former Director did not treat the applicant appropriately at union-management meetings, and treated him differently than other union executive members in attendance at these meetings.
74I am fully aware of the fact that “everyday racism” can be exhibited in subtle ways and that the person on the receiving end of this form of racism is often a better judge of when it has occurred. At the same time, I am concerned about an individual being compelled to respond to broad and vague allegations about how he didn’t look at the applicant or failed to address the applicant at certain unspecified meetings, which were raised literally for the first time in evidence at the hearing over three years after the fact. While the former Director did his best to respond to these allegations, I simply am not prepared to rely on the evidence in the state it was presented to me as being sufficiently particularized to support an allegation of this nature.
b) Allegation re failure to deal with October 12, 2005 e-mail
75Following the results of the written examination in Superintendent competition in 2005, a TCHC employee sent out an e-mail dated June 6, 2005 which purports to be in response to an allegation that the sender of the e-mail had been called a “liar” by the person to whom the e-mail was sent. In what may aptly be described as a screed, the sender of the e-mail engages in a rambling attack on a variety of local 767 executive members, including the applicant. This e-mail was forwarded to the applicant on October 12, 2005.
76The applicant states that he raised this e-mail as an issue with TCHC management, and specifically with the former Director of Human Resources. The applicant alleges that nothing was done about this e-mail, and that this was due to racial discrimination.
77While the evidence indicates that the sender of the e-mail was notorious for abusing the employer’s e-mail system in this manner and was disciplined and ultimately terminated, the evidence does not indicate that the sender was disciplined in relation to this specific e-mail. At the same time, even though the content of the e-mail relates to internal union issues, the former Director states that it still would have been regarded as an inappropriate usage of e-mail and he would have followed up.
78At the end of the day, there is no evidence that this e-mail was presented to management as an allegation of racial discrimination, nor is there anything on the face of the e-mail to indicate racial discrimination. The context of the e-mail is clearly yet another example of in-fighting between local 416 and local 767 members. Further, there is no evidence to support that any failure by management to take specific action in relation to this e-mail was due to racial discrimination. As a result, this allegation is dismissed.
ALLEGATION RE DIRECT DEPOSIT
79The applicant alleges that when he was off work in August and September 2006, the personal respondent ordered Payroll to pay the applicant by direct deposit and then immediately took the money out of his bank account, and it is alleged that this was racial discrimination.
80The evidence indicates that, following the applicant’s transfer out of Regent Park, the applicant went on an extended sick leave. However, the only medical note that TCHC has on file to document this absence in dated September 8, 2006, some 18 days after the first day of absence. The applicable provision of the collective agreement, which is Article 14.12(a), states that if an employee is absent for more than three working days, then the employee shall furnish a medical note within 7 working days of the commencement of the absence. Consequently, as the applicant commenced his absence on August 21, 2006, he ought to have provided a medical note by August 30, 2006.
81The Director of Property Management states that on September 5, 2006, he was provided with information that the applicant had been absent from work and had not provided any medical documentation. As a result, the Director advised Payroll to stop the direct deposit of the applicant’s paycheque. This apparently explains why the funds were first shown as being deposited into the applicant’s account and then withdrawn. On September 6, 2006, the Director was advised that the applicant’s manager had approved him going to see his doctor on the following Monday and providing medical documentation at that time. As a result, the funds were re-deposited into the applicant’s account. There is no evidence to support that any of this had to do with racial discrimination.
82The allegation of the personal respondent’s involvement with this issue is based upon a statement alleged to have been made to the applicant by someone in Payroll. This individual, who was only identified by her first name, was not called by the applicant as a witness. The personal respondent denies having any involvement with this issue, and there is no evidence to indicate otherwise as I am not prepared to rely upon the applicant’s hearsay evidence as to what he says he was told by someone in Payroll.
ALLEGATION RE TRAINING
83The applicant alleges that he was denied training for the Superintendent position that was provided to Local 416 employees and later extended to Local 767 employees other than the applicant, and says he only received limited computer training. The applicant alleges that this was racial discrimination.
84The evidence simply does not support this allegation. TCHC has provided extensive evidence to indicate that training was provided to employees interested in gaining skills necessary for the Superintendent position, including the applicant. The employees were divided into a number of different groups, and attended training on a regular day each week. The applicant was assigned to the Wednesday group. The evidence indicates that the applicant attended the first training day, and then did not show up for any further training. Eventually, when the applicant had not shown up for a number of consecutive training days, he was removed from the e-mail notification list, as were other employees who did not attend the training regularly.
85The applicant states that he was off on sick leave for part of this time and also was compelled to take his lieu time before the end of the calendar year, and as a result, he was not available to attend the training. The evidence indicates that on January 31, 2006, the applicant’s former supervisor followed up with Human Resources to address two employees, including the applicant, who had missed training sessions. In the applicant’s case, it is stated that he missed a few training sessions due to vacation and sick leave, and the question was asked about whether the applicant had asked for any make up sessions or course materials. There is no evidence to indicate that he did.
86At the end of the day, the evidence establishes that the applicant did attend one day at the start of the training, but didn’t continue to attend. At a certain point, whatever the reason for his non-attendance, the applicant was dropped from receiving further notice, as were other non-attendees. While the issue of the applicant’s non-attendance was raised by his former supervisor, the applicant needs to bear some responsibility for not following up on training that he knew had commenced and had not been completed. I simply cannot believe the applicant’s evidence that he was not aware that this training was continuing in 2006, when so many of his colleagues continued to be in attendance.
87In the end, I find no evidence to support a finding of racial discrimination in relation to this issue.
NEXT STEPS
88I have found that the applicant experienced racial discrimination and that the respondent TCHC violated the Code in the following respects: 1) as a consequence of the comment about Jamaican and Caribbean employees made by the Regent Park Manager in or about June 2006; 2) in relation to management’s failure to take reasonable steps to address this comment; and 3) in relation to the applicant’s transfer out of Regent Park in August 2006. All other allegations in the application, with the exception of those allegations that have been deferred, are dismissed, including all allegations against the personal respondent.
89As indicated in my interim decision dated December 11, 2008, this hearing has been bifurcated to deal first with the issues of liability and then to deal with remedy. As a result of my findings of violations of the Code, I will need to hear evidence from the parties as to the appropriate remedy.
90Accordingly, I am requiring the parties to file material regarding remedy with the Tribunal in accordance with the following schedule:
a. Within 21 days of the date of this decision, the applicant shall serve on the respondent TCHC and file with the Tribunal a statement of what specific remedies are sought arising out of the findings I have made and all evidence in support of these remedies, including any medical and/or psychological reports relevant to the specific findings of Code violations. If the applicant intends to call medical or psychological evidence in support of his claim for remedy, it will need to be specifically focused on the impact of the racial comment in June 2006 and the transfer in August 2006, and should not extend to subsequent events which are the subject of the ongoing arbitration proceeding;
b. Within 35 days of the date of this decision, the respondent TCHC shall serve on the applicant and file with the Tribunal its response to the applicant’s material on remedy, including whether it requests an oral hearing to address any medical and/or psychological evidence being proffered by the applicant; and
c. Within 42 days of the date of this decision, the applicant shall file any materials in reply.
91On the basis of my review of the material filed, I will determine whether an oral hearing is required. If so, the parties will be contacted regarding an appropriate date for their further attendance.
ORDER
92For all of the foregoing reasons, I hereby make the following order:
Within 21 days of the date of this decision, the applicant shall serve on the respondent TCHC and file with the Tribunal a statement of what specific remedies are sought arising out of the findings I have made and all evidence in support of these remedies, including any medical and/or psychological reports relevant to the specific findings of Code violations;
Within 35 days of the date of this decision, the respondent TCHC shall serve on the applicant and file with the Tribunal its Response to the applicant’s material on remedy, including whether it requests an oral hearing to address any medical and/or psychological evidence being proffered by the applicant; and
Within 42 days of the date of this decision, the applicant shall file any materials in reply.
Dated at Toronto, this 19th day of February, 2009.
“Signed By”
Mark Hart
Vice-chair