HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Harry Dyal

Applicant

-and-

Toronto Transit Commission and Mike James

Respondents

case Resolution Conference DECISION

Adjudicator: Michelle Flaherty

Date: June 12, 2009

Citation: 2009 HRTO 828

Indexed As: Dyal v. Toronto Transit Commission

AppearanceS BY

Harry Dyal, Applicant ) Glen Morrison, ) Counsel

Toronto Transit Commission ) Lucy Siraco, and Mike James, Respondents ) Counsel

[1] The applicant has filed an Application under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990 c. H.19, as amended (the “Code”) alleging discrimination on the basis of age, colour, ethnic origin, and place of origin in the context of employment.

OVERVIEW

[2] The applicant, who was born in Guyana, was 65 years old at the material times. He was employed by the Toronto Transit Commission (the “TTC”) as a maintenance carpenter from April 16, 2007 to November 11, 2007. The applicant’s immediate supervisor at the TTC was the personal respondent, Mike James.

[3] The applicant alleges that the personal respondent discriminated against and harassed him by making derogatory comments concerning his race, age and place of origin.

[4] At various times through the course of his employment with the TTC, the applicant complained to the personal respondent about the behaviour of co-workers and raised concerns about health and safety issues. According to the applicant, it is in the context of these discussions that the personal respondent made discriminatory comments regarding the applicant’s age, race and place of origin.

[5] On November 11, 2007, the applicant was relieved from duty because the respondents believed he was intoxicated when he reported to work. The applicant contends that the termination of his employment was a culminating incident of discrimination and harassment.

[6] Importantly, the applicant acknowledges that he was impaired when he reported for work on November 11, 2007. However, he states that he had not consumed alcohol but instead, had taken a combination of cold medications. In any event, he contends that he was treated more harshly than other non-racialized employees who were not relieved of duty when they reported for work impaired.

[7] In closing argument, counsel for the applicant also contended that the respondents failed to accommodate the applicant’s disability, namely the cold from which he was suffering on November 11, 2007.

[8] The respondents deny harassing or discriminating against the applicant. They state that the applicant’s employment was terminated because he reported for work in an impaired state. They maintain that the applicant was intoxicated because he had consumed alcohol. In the alternative, they argue that the basis of the impairment is not important; the key issue is that he was impaired and that he failed to advise his supervisor that his ability to perform the functions of his job was impaired (whether by alcohol or medication) as required under TTC policy.

[9] The respondents stressed that, given the nature of the work performed by the applicant and his potential impact on the safety of patrons and other employees, they acted reasonably in relieving him from duties on November 11, 2007.

[10] The respondents’ decision to relieve the applicant from duties on November 11, 2007 was the subject of step I and step II grievance meetings under the collective agreement. The TTC, the applicant and his union participated in these meetings. At each step meeting, the employer upheld the personal respondent’s decision to relieve the applicant from duty and the ultimate result was the termination of the applicant’s employment.

[11] The respondents deny that the applicant’s race, age, place of origin or disability were a factor in its decision.

THE ISSUES

[12] During the hearing, the applicant advised the Tribunal that he was withdrawing allegations contained in the Application that a previous disciplinary measure was discriminatory. The applicant further advised that he was withdrawing allegations that the respondents’ decision not to promote him to the position of assistant foreperson was discriminatory.

[13] Therefore, the issues before the Tribunal are:

a. whether the respondents harassed or discriminated against the applicant by making or condoning derogatory comments regarding the applicant’s race, place of origin or age; and

b. whether the respondents discriminated against the applicant in terminating his employment.

ANALYSIS

The Code

[14] The relevant provisions of the Code are as follows:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

Harassment and Discriminatory Comments

[15] The applicant testified that the personal respondent made derogatory and discriminatory remarks regarding the applicant’s age, ethnic origin and race. More specifically, the applicant alleges that the personal respondent said the following:

a. "all you black guys from the West Indies think you know it all"

b. "you old man"

c. "crazy old man"

d. "you can go home and play with your grandchildren"

[16] The applicant relies extensively on undated typewritten notes. His counsel urges me to accept these notes as accurate because, he says, they were made contemporaneously with the alleged discriminatory incidents.

[17] Counsel for the applicant agreed, however, that the notes themselves are undated and that, in some cases they make only vague references to the dates incidents are alleged to have occurred. Although the applicant testified otherwise, counsel conceded that where the notes are ambiguous as to dates, they may not have been made contemporaneously with the events in question.

[18] The respondents argue that the notes are not an accurate depiction of what took place. They challenge the applicant’s credibility in this regard for the following reasons:

a. The respondents dispute the applicant’s evidence that the notes were made contemporaneously. They point to discrepancies in dates, including a reference to November 10, 2007 as the date of termination (when the actual date was November 11, 2007). The respondents also contend that one of the incidents described in the notes is alleged to have occurred on a date neither the applicant nor the personal respondent was at work.

b. The applicant testified that he advised the union of his harassment and discrimination concerns prior to the grievance meetings. This evidence was contradicted by Pino D’Armiento, ATU Local 113 union officer and the applicant’s representative at the step II hearing.

c. The respondents argue (and the applicant does not dispute) that he did not alert the employer to concerns about discrimination or harassment until well after his employment was terminated. Indeed, the applicant did not raise these concerns even as he was disputing the termination through the grievance process. The applicant states that he was prevented from doing so because he feared reprisals and that, in any event, he is not required to exhaust internal TTC remedies before filing an application with the Tribunal. The respondents do not dispute the latter point, but argue that his failure to mention any discrimination or harassment to the employer or to his union suggests that these allegations were fabricated after the fact. In response to the applicant’s evidence that he feared reprisals, the respondents point out that the applicant felt comfortable enough to make a number of complaints regarding workplace issues not only to the personal respondent but also to higher level supervisors. The TTC also questioned whether a fear of reprisals would continue to prevent the applicant from raising concerns once he had effectively been relieved of duties.

d. The respondents called a number of the applicant’s former co-workers as witnesses. While these co-workers’ evidence regarding the applicant’s demeanour on November 11 varied slightly, they were consistent in testifying that they had not witnessed the personal respondent making the comments complained of or behaving in a discriminatory manner towards the applicant. In cross-examination, however, these co-workers acknowledged that they did not necessarily witness every interaction between the applicant and the personal respondent and that it is possible that such comments were made when they were not present. Although some of the witnesses stated that their relationship with the applicant was such that he shared personal information or complaints about the workplace with them, their evidence was that the applicant had not complained to any of them of workplace harassment or discrimination. The respondents urge me to consider this as further evidence that the allegations of discrimination were contrived after the fact.

[19] The personal respondent denied making comments of the sort complained of by the applicant. The personal respondent acknowledged having conversations with the applicant about the behaviour of co-workers and health and safety issues but denies making comments based on any prohibited ground or treating the applicant less favourably than other employees.

[20] In response to the arguments advanced by the respondents, I note that it is not necessary for others to corroborate an applicant’s claims of discriminatory or harassing comments or conduct. The applicant’s evidence on this point, if accepted, would be sufficient basis for a finding of discrimination. I also note that not raising concerns about harassment or discrimination during his employment or while contesting his termination is not necessarily suggestive of fabrication. While I appreciate the respondents’ argument that the applicant had frequently raised workplace concerns, there may be particular sensitivities and challenges around allegations of discrimination or harassment that distinguish these from other workplace issues.

[21] I have considered the evidence of the applicant and the witnesses who testified for the respondents and where there is a conflict, I prefer the evidence of Mr. D’Armiento and the personal respondent over that of the applicant. I am not able to conclude that the notes, which are relied upon extensively by the applicant, were made contemporaneously with the alleged events. In some cases, these notes make ambiguous references to dates and contain errors regarding when events are alleged to have occurred. While the timing of the note taking is not critical to the issues before me, in the circumstances, it is relevant to the applicant’s credibility. There are other important inconsistencies in the applicant’s evidence (discussed at paras. 34 to 37).

[22] On a balance of probabilities, I find that the personal respondent did not make the alleged comments. I find that there is no basis to conclude that the personal respondent discriminated against or harassed the applicant.

Did the Respondents have Duty to Accommodate the Applicant on November 11, 2007?

[23] In closing submissions, counsel for the applicant argued that the respondents had a duty to accommodate the applicant’s disability (namely his cold and cough) on November 11, 2007. Counsel seemed to suggest that, by way of accommodation, the respondents should have reinstated the applicant to his position.

[24] The respondents expressed concern that this argument was not advanced earlier and that they did not have an opportunity to lead evidence on the issue. I agree and, as a result, will make only two brief comments in dismissing the applicant’s arguments.

[25] First, I question (without deciding) whether a cold and cough would constitute a disability under the Code. Second, as the respondents point out, the applicant has provided no evidence in this case on which to base a conclusion that the respondents had a duty to accommodate the applicant on November 11, 2007, nor is there any evidence regarding what would constitute appropriate accommodation or undue hardship in the circumstances.

[26] Accordingly, I find that there is not sufficient basis to conclude that the respondents had a duty to accommodate the applicant or that they failed in this duty.

Termination

[27] The applicant says he contracted a cold and cough either while he was on holidays in Guyana or upon his return to Canada on or about October 13, 2007. He returned to work at the TTC on October 14, 2007 and continued working there, without incident or medical leave, until November 11, 2007.

[28] During his holidays or shortly afterwards, the applicant said he began treating his cold with three different cold medications. He acknowledges that he may have exceeded the recommended doses and that, when he reported for work on November 11, 2007, his faculties were impaired. He also testified that, on November 11, 2007, he took approximately the same doses of medication as he had on previous days.

[29] Counsel for the applicant insisted, however, that the respondents erred in concluding that he was intoxicated because he consumed alcohol. He argued that the impairment was due to the consumption of cold medications and that this error is fatal to the respondents’ defence to the Application: the distinction between the consumption of alcohol and the consumption of cold medications, he argues, is that the latter creates an obligation to accommodate.

[30] Several TTC employees testified that the applicant appeared to be intoxicated when he reported for duty on November 11. These witnesses commented that his eyes were bloodshot, that he smelled of alcohol, that he behaved in an uncharacteristically boisterous and friendly fashion. At least two of the witnesses testified that the applicant swayed while walking, stumbled and made uncharacteristically vulgar statements.

[31] The respondents stated that, on this basis, they had reason to believe the applicant was impaired and they appropriately relieved him from duties. In making the decision to terminate the applicant’s employment, the respondents’ witnesses testified that they relied not only on the applicant’s behaviour on November 11, but also on the fact that the applicant was a probationary employee with a previous disciplinary record.

[32] The respondents argued that the key issue is whether or not the applicant was fit for duty on November 11. Although they maintain that the applicant was intoxicated because of the consumption of alcohol, they argue that whether he was impaired because he had consumed alcohol or medication is not strictly relevant; in either case, it was appropriate to relieve him from duties on November 11, 2007. In the circumstances, the respondents argue that their decision to terminate the applicant’s employment was appropriate and not tainted by discriminatory considerations.

[33] In this regard, the respondents urged me to adopt the reasoning in Cugliari v. Telefficiency Corporation, [2006 HRTO 7](https://www.minicounsel.ca/hrto/2006/7), where the adjudicator wrote:

It must always be kept in mind that this is not a case where a determination is made whether someone has been wrongfully dismissed in the civil sense, but whether the Complainant has been discriminated against under the Code. To establish a breach of the Code, discrimination must be a factor in the conduct, but it need not be the only factor. That being said, a decision to dismiss a probationary employee can be a bad one, but if none of the factors or reasons for the decision is related to discrimination, the Code is not engaged. [Emphasis added.]

[34] The applicant relies extensively on a medical note which he obtained in the early morning of November 12, 2007 and which indicates that he had “zero signs of intoxication” at the time.

[35] However, the applicant’s evidence about when he was seen by a doctor conflicts with the medical records from the hospital. While his evidence was that he was seen by a doctor within 30 minutes or an hour after arriving at hospital, the hospital records show that he was seen almost two hours after he arrived. I find that the medical note, made at approximately 1:30 a.m., is not determinative of whether the applicant was intoxicated at 10:30 p.m. when he reported for work.

[36] The applicant testified that three other employees had reported for duty intoxicated and that the respondents had not relieved them from duty or terminated their employment. He argued that by relieving him from duties and ultimately terminating his employment, the respondents treated him more harshly than other, non-racialized employees.

[37] I do not accept the applicant’s evidence on this point. I heard evidence from several employees of the TTC, including the three employees identified by the applicant as having been intoxicated at work. All of these employees denied either reporting for work intoxicated or observing an intoxicated employee performing work functions. A number of these witnesses reacted strongly to the suggestion that the respondents would allow an employee to work while impaired and were very concerned this would seriously jeopardize the safety of co-workers and patrons. Mr. D’Armiento testified that the union is dealing with other cases where employees were relieved of duties (and are facing the termination of their employment) for alleged impairment at work. He said he was not aware of any case where the TTC imposed a lesser form of discipline in similar circumstances.

[38] I find that the respondents have provided a credible and non-discriminatory explanation for their decision to relieve the applicant from duties on November 11, 2007 and ultimately terminate his employment. In my view, race, place of origin, age and disability were not factors in the respondents’ decision to terminate the applicant’s employment. I agree with the respondents that the cause of impairment on November 11 is not determinative of the case and, for that reason, it is not necessary for me to decide whether the applicant was intoxicated by alcohol or by medication. I adopt the reasoning of Cugliari v. Telefficiency Corporation, supra and find that, even if the respondents were mistaken as to the basis for the applicant’s impairment, it does not follow that the respondents’ decision was based on prohibited grounds.

[39] For all of these reasons, the Application is dismissed.

Dated at Toronto, this 12th day of June, 2009.

“Signed by”

Michelle Flaherty

Vice-chair