Ghaoutsi Mokri v. City of Toronto and Jason Smiley, 2010 HRTO 2071

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ghaoutsi Mokri Applicant

-and-

City of Toronto and Jason Smiley Respondents

Interim DECISION

Adjudicator: Maureen Doyle Date: October 12, 2010 Citation: 2010 HRTO 2071 Indexed as: Mokri v. Toronto (City)

AppearanceS BY

Ghaoutsi Mokri, Applicant ) Michael Hassell, ) Representative

City of Toronto and ) Darragh Meagher, Jason Smiley , Respondents ) Counsel

INTRODUCTION

1This Application was filed on October 23, 2008, under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying human rights complaint was filed with the Ontario Human Rights Commission on March 11, 2008, was subsequently amended, and was then abandoned upon filing the Application with the Tribunal. The applicant alleges discrimination in employment on the basis of disability, ethnic origin, age and alleges reprisal.

2The respondents filed their Response and raised a preliminary issue, arguing that the Application does not reveal a prima facie case of discrimination.

3At the Case Resolution Conference before me the applicant gave evidence in chief for two days and the parties made argument regarding the respondents’ preliminary objection regarding a prima facie case. It was agreed that the respondents were not required to make an election.

4This Interim Decision addresses the respondents’ request to dismiss on the basis that there is no prima facie case of discrimination.

background

5The applicant worked since June 2004 as a security officer for the corporate respondent, where his employment status was that of a “casual” employee. At the time of the original complaint, the personal respondent was his supervisor. The applicant was born in Algeria and was 55 years old at the time of his hire by the City. He suffers from high blood pressure and underwent surgery for colon cancer in December, 2007.

6In his Application, the applicant recounts events of October 11, 2007, when he was working at a location for which he states he was not trained. He recounts an altercation which occurred at that location, and indicates that he completed an incident report which was subsequently judged to be inadequate. He states that supervisors other than his own spoke to him on the telephone the next day, yelling at him about the incident and his report. He states he then received a phone call from his own supervisor, and that he asked his own supervisor if they wanted him to die. He alleges that everyone knows he has high blood pressure. He alleges that in an October 22, 2007 debriefing meeting regarding the incident, the supervisors, including his own, were being unfair to him and were looking for a scapegoat regarding the incident on October 11, 2007. He alleged that they were playing “Supervisor solidarity against the immigrant”.

7The applicant also states that “on that debriefing” his supervisor scheduled an appointment for a psychiatric assessment for the applicant. He alleges that the supervisor was having doubts about his mental health because he had high blood pressure. He alleges that the supervisor perceived the high blood pressure as a disability.

8The applicant states that he felt humiliated and contacted the City’s Human Rights office on October 25, 2007, to make a complaint regarding the fact that the supervisor was sending him for a psychiatric assessment.

9The applicant states that he received a disciplinary suspension in connection with the October 11, 2007 incident on November 30, 2007. He states that it was one of the two supervisors who had spoken with him on the phone on October 12, 2007, who advised him of the suspension and that he also stated that the applicant had been harassing him with a complaint to the City’s Human Rights office. He alleges that the discipline amounted to a reprisal.

10The applicant also states that he participated in a job competition to be awarded a position as a “Temporary” employee at the city. He alleges that despite his high mark in the written test, his supervisor and another supervisor with whom he had spoken on the telephone on October 12, 2007, caused him to fail the interview for the position. He states that he feels that his supervisor should have stepped down from the interview panel while his complaint was before the City’s Human Rights office, and he alleges that the supervisor used the interview as an opportunity for further reprisal.

11The applicant states that he had participated in a job competition for a “temporary” position in 2004 also, but that at that time he was told he did not have sufficient seniority. He alleges that his seniority was not taken into account in 2007, as “they did not want me to pass”.

12The applicant also alleges that the psychiatrist recommended that he be given a permanent position “in order to avoid the stress” associated with his frequent site changes. He alleges that his supervisor ignored this recommendation and that there was a violation of his right to accommodation of his disability.

13In his testimony, he stated that he had had conversations with his supervisor about his high blood pressure and that he had collapsed once during training, due to high blood pressure. He testified that when he asked if the supervisors who had yelled at him regarding the October 11, 2007 incident had wanted him to die, he felt it was a call for help for the supervisors to stop pressuring him. He testified that he felt they wanted to “scapegoat” him.

14He testified that when his supervisor referred him for a psychiatric assessment, he felt it was clear that his supervisor wanted to hurt him. He testified that he complained to the City’s Human Rights office regarding the referral for a psychiatric assessment, and that he also told the officer that he felt he had been a scapegoat for the incident of October 11, 2007. He testified that in a telephone conversation, the City’s Human Rights officer advised him that he had spoken to the supervisors about the suspension and about the referral to the psychiatrist and that they had told him that the suspension was for the October 11, 2007 incident, but that he had been given no answer regarding the referral to a psychiatrist. He also testified that the psychiatrist had recommended permanent status as an employee for him as this would involve less stress.

15With regard to the disciplinary suspension, the applicant testified that one of the supervisors he had spoken to on the telephone on October 11, 2007 gave him the November 30, 2007 disciplinary letter and said “Mokri you keep harassing me”. He testified that he believed that this comment was made due to the fact that the supervisor had been questioned by the city’s Human Rights officer.

16With regard to the 2004 job competition, he testified that he received a letter advising him that he had not been successful because he did not yet have three months seniority with the city. He also testified that he was one of three immigrants who wrote the test and who did not get the job, but that he believes their test marks would have been the highest, as they were all new and their training would have been the freshest.

17With regard to the 2007 job competition, he testified that he thinks he was the oldest casual employee at the time, other than an individual who was off work due to a workplace injury, and that he had the most seniority among casual employees. He testified that when he went for the interview, his supervisor was one of the interviewers and he felt that the supervisor knew of his complaint to the City’s Human Rights office.

18The applicant testified that when he began working for the City, he noticed that immigrants were not in well-paid positions and that he noticed that people behaved differently toward immigrants. He also testified that immigrants were casual employees for the longest periods of time. He also testified that he believes his ethnicity played a part in the personal respondent’s decision not to hire him. He also testified that it is his belief that the City discriminated against him on the basis of ethnicity and age and that the personal respondent discriminated against him on the basis of his disability, by permitting other supervisors to yell at him and by putting pressure on him.

19He also testified that he believed he had not been given training for the location where he was assigned October 11, 2007 because he was perceived as a very intelligent person, and one who did not refuse assignments.

20By way of remedy, among other things, the applicant sought rescission of the discipline, temporary status which had been denied to him in 2004 and 2007 and financial compensation for “mental anguish”, the harassment and the violation of his rights.

21On May 15, 2009, the applicant’s counsel at the time provided a “Statement of Additional Facts”. Among other things, he alleged that the applicant had been denied the proper training for the location where he worked on October 11, 2007, “because of his age, race and disability”. He also alleged that the applicant was “one of the oldest Security Officers working for the respondent and also one of the longest employees to remain at “Casual” status. By way of remedy, he requested an apology from the respondents for their failure to provide him with the necessary training for the location where he worked October 11, 2007, for the “resulting unfortunate circumstances”, for the harassment and management by his peers and management, for the embarrassment caused by the requirement for a psychiatric assessment, for rescission of the discipline, for an “opportunity to retake the interview component of the test as a formality in order to be granted a permanent position”, $15,000.00 for 6 weeks of sick leave, “potential loss of income” associated with not becoming a temporary or permanent employee, travel expenses associated with not having one worksite and costs.

DECISION

22The Request to dismiss on the basis of no prima facie case is allowed in part. Given the fact that the Case Resolution Conference will continue, I will provide very brief reasons for my decision.

23In Jagait v. IN TECH Risk Management, 2009 HRTO 779, the Tribunal described the test for determining whether there is a prima facie case of discrimination:

[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…

24In Potocnik v. Thunder Bay (City) (No. 3) (1996), 1996 CanLII 20066 (ON HRT), 29 C.H.R.R. D/333, at para. 16 the Board of Inquiry stated the issue as follows: “In simple terms, there must be something that would make a reasonable person say that the employer has some explaining to do.”

25I am persuaded that the applicant has failed to make allegations and adduce sufficient evidence that could enable me to make a finding of discrimination in employment on the basis of age, regardless of the evidence that may or may not be introduced by the respondent. Beyond making broad assertions that he believes that the City and the personal respondent discriminated against him on the basis of his age, he alleges no facts to support this conclusion. There must be a nexus between the acts complained of and the prohibited ground of discrimination.

26In fact, with regard to the respondents’ failure to provide him with training for the location where he worked on October 11, 2007, he did not allege that it was related to his age (or to any other prohibited ground) but rather that it was related to their high regard for his intelligence. While he has indicated that it is his belief that he was the oldest casual employee at the time of the 2007 job competition, that is not complete and sufficient to justify a finding in his favour on the matter of discrimination in employment on the basis of age.

27I am persuaded that the applicant has failed to make allegations and adduce sufficient evidence that could enable me to make a finding of discrimination in employment on the basis of ethnic origin, regardless of the evidence that may or may not be introduced by the respondent. Beyond making broad assertions that he believes that the City and the personal respondent discriminated against him on the basis of his ethnic origin, including the allegation that the supervisors engaged in “Supervisor solidarity” against him as an immigrant, he alleges no facts to support this conclusion.

28In fact, with regard to the respondents’ failure to provide him with training for the location where he worked on October 11, 2007, he did not allege that it was related to his ethnic origin (or to any other prohibited ground) but rather that it was related to their high regard for his intelligence. With regard to what he has described as “scapegoating” regarding the incident of October 11, 2007 and the subsequent discipline, he has not alleged any facts to indicate discrimination on the basis of ethnic origin.

29He has asserted that he noticed when he first began working for the City that immigrants were not in well-paid positions and that people behaved differently toward immigrants. He has also testified that immigrants were casual employees for the longest periods of time. This Application is based on the applicant’s individual experience with the respondents and is not framed as an application regarding systemic discrimination.

30With regard to the job competitions which are complained of in the Application, the applicant has indicated that in 2004, he was one of three immigrants who competed and who were not successful in obtaining the job sought. He has not alleged facts to indicate that these individuals did not get the job because of their ethnic origin – for example, he has not even indicated who did get the job. With regard to the 2007 job competition, beyond broad assertions that the respondents discriminated against him on the basis of ethnic origin, again, he has not alleged facts to support this conclusion. He has not alleged any facts which, if believed, would be complete and sufficient to justify a finding in his favour on the matter of discrimination in employment on the basis of ethnic origin.

31I find that the applicant has established a prima facie case with regard to the questions of discrimination in employment on the basis of disability and on the basis of reprisal. The applicant testified that his supervisor was aware of his disability and testified regarding supervisory behaviour which he felt targeted him for harassment and discriminatory treatment, including a failure to accommodate, which he links to the fact of his disability.

32The applicant also testified with regard to employer decisions which had a negative impact on him in his workplace, following his attempt to assert his right to be free from discrimination contrary to the Code, and where he alleges the individuals responsible for these negative decisions were aware of his complaint. I find that these matters do require a response from the respondent.

33I caution that my finding that the matter of discrimination in employment on the basis of disability and on the basis of reprisal should proceed, does not in any way suggest a finding that such violations of the Code have in fact occurred. These determinations will be made after a consideration of all the evidence and submissions.

ORDER

34In the circumstances, I make the following orders:

1. The Application in so far as it alleges discrimination in employment on the basis of age and ethnic origin is dismissed on the basis that there is no prima facie case.

2. The respondents’ request to dismiss the Application in so far as it alleges discrimination in employment on the basis of disability and reprisal is denied. The Case Resolution Conference will be reconvened in order to consider the Application in regard to allegations of discrimination in employment on the basis of disability and reprisal.

35I am seized.