HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Gilbert McIntyre
Applicant
-and-
Ontario Teachers Pension Plan Board
Respondent
DECISION
Adjudicator: Sherry Liang
Indexed as: McIntyre v. Ontario Teachers Pension Plan Board
APPEARANCES
Gilbert McIntyre, Applicant ) Self-represented
Ontario Teachers’ Pension Plan Board, Respondent ) Donna D’Andrea, Counsel )
1This is an Application filed on April 15, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The applicant is a retired teacher and a member of the Ontario Teachers’ Pension Plan, a defined benefit pension plan administered by the respondent, the Ontario Teachers’ Pension Plan Board. For ease of reference, the respondent will be referred to in this decision as “the Plan”. The applicant alleges that he was discriminated against on the basis of his race, colour, ethnic origin and age when staff with the Plan called on building security to escort him out of its offices on August 15, 2008. In his Application, the applicant self-identifies as a 68-year old African-Canadian man of Guyanese origin.
THE FACTS
3At the hearing, I heard the evidence of the applicant; of Michael McAllister, Director of Client Services for the Plan; of two other employees of the Plan; and of Naeemul Ebad, manager of security for the firm providing security services to the building at the time of the events.
4Much of the evidence is not in dispute. However, there are some areas in which the evidence of the applicant conflicts with that of others and in those instances, I have decided to accept the account of the other witness over that of the applicant. In making this determination, I have considered what is most reasonable and probable in all of the circumstances.
5Many of the applicant’s statements were manifestly at odds with the objective facts and even inconsistent with the applicant’s own evidence. As an example, the applicant repeatedly referred to the Plan as having “stolen” his money, contrary to the fact that he in fact owed the Plan money and was obligated to make a substantial repayment. He stated at the hearing that “even today, I have no idea of how much I still owe the pension plan”, which is contradicted by both documentary evidence and the applicant’s own assertion that as of the date of the hearing, he would repay his debt by December 2010.
6As another example, the applicant stated that Mr. McAllister “almost caused my death”, “he almost ended my life that day” and that the Plan “is going to kill me”. The applicant described the events as “this is like 1847 and Michael McAllister is in charge of a plantation”, and that “given [the Plan’s] animosity and their hostility to me, my life will be hell”. The applicant’s tendency towards exaggeration and hyperbole in giving his testimony undermined the credibility of his evidence. These comments were totally unwarranted by the circumstances which, ultimately, were about a dispute about the terms of repayment of a debt and a call to security prompted by the applicant’s refusal to leave the Plan’s offices.
7It is not necessary for the purposes of this decision to make any findings about the extent of the monies owed by the applicant to the Plan, as overpayment of pension, or about the extent of the monies owed by the Plan to the applicant, as excess contributions. The applicant did not dispute that he was overpaid his pension, which he was obliged to repay.
8The evidence establishes that the applicant is a retired teacher who applied for a pension in October 2003. He began receiving monthly pension payments from the Plan. Under the rules of the Plan, a retired teacher in receipt of a pension may be re-employed in education without suspension of pension payments, up to a limit of 95 days of re-employment in a school year. It is the member’s responsibility to notify the Plan if they exceed that limit. If a member receives pension payments to which he or she is not entitled, those payments must be repaid to the Plan, with interest.
9In September 2006, the Plan became aware, not through the applicant, that he had been re-employed in education beyond the 95-day limit for the past two school years. As he had not notified the Plan of his re-employment, he had received pension payments to which he was not entitled. In a letter to the applicant on September 13, 2006, the Plan told the applicant of the amount of the overpayment, requesting payment of the lump sum. It also told the applicant that he could arrange other repayment options. The applicant did not respond to the letter.
10In December 2006, the Plan sent a further letter in which it re-calculated the amount owed by the applicant to take into account post-retirement contributions for the same school years, which the applicant was entitled to be refunded. The letter set out four payment options and asked that he reply indicating which option he chose. The applicant did not respond to this letter either.
11Because the applicant had not responded, the matter was referred to Mr. McAllister in January 2007. He contacted the applicant by telephone, who asked for more time to consult with others about his situation. In February, the two men had a further conversation in which the applicant indicated that he was currently working and would not be drawing on his pension until June 2007.
12In June, Mr. McAllister contacted the applicant again with a view to reaching agreement on a repayment schedule before the applicant started receiving pension payments again. The two parties met on July 11, 2007. The applicant asked for additional time. He referred to being in poor health, and asked for a deferral of the repayment plan to January 2008. He suggested that he could repay the Plan at the rate of $500 per month, starting in January. The applicant told Mr. McAllister that he had cancer and that he was not expected to live much longer. Mr. McAllister agreed to the repayment plan. He testified that they also agreed that the excess contributions would be offset against the overpayments, as they were less.
13Mr. McAllister testified that the Plan had not entered into such an arrangement before. Technically, a member must repay overpayments before being entitled to receive further payments. Although under the terms of the Plan, a member is expected to repay overpayments before being entitled to further payments under the Plan, Mr. McAllister has the discretion, on compassionate grounds, to vary that requirement. Only a few members of staff at the Plan have that authority. As Director of Client Services, Mr. McAllister was one of those few.
14The repayment agreement was confirmed in a letter from Mr. McAllister to the applicant on July 17, 2007, which also quantified the total amount of the pension overpayment, less excess re-employment contributions.
15The applicant began receiving pension payments again in January 2008. In accordance with the agreement of July 2007, $500 was deducted from his January 2008 pension payment. Then, in February, the Plan was informed that the applicant had exceeded the re-employment limits and his pension was again suspended. The Plan wrote the applicant to advise him of this, and that recovery of his overpayments would be deferred until his pension payments resumed.
16On August 6, 2008, the applicant went to the Plan’s offices to re-apply for his pension. He asked for an advance on his pension payment and was granted it. On August 14, the applicant spoke to Mr. McAllister. He was angry about the fact that his pension payment, which he had just received, showed a deduction of $500. He asked for an immediate return of his excess contributions (which the Plan was offsetting against his total debt), and also asked for a detailed accounting of the overpayments and all contributions. Mr. McAllister agreed to put together a detailed statement. He did not agree to an immediate return of excess contributions, and tried to explain that they were being offset against the overpayments, and that the overpayments amounted to more than the excess contributions. He also tried to remind him of the repayment agreement from the previous year, which was the basis of the $500 deduction.
17The applicant was upset during this conversation, and Mr. McAllister had trouble explaining all of this to him. He recommended that the applicant wait for the detailed statement to be sent to him. Following this phone call, Mr. McAllister assigned to a member of his staff the task of putting together a detailed statement for the applicant.
18The applicant decided that he would go to the offices of the Plan. He spoke to a receptionist the next morning to advise that he would be coming in, and stated that he did not wish to deal with Mr. McAllister. Mr. McAllister learned of this on his arrival at work. Despite the applicant’s views, he decided it would be beneficial to meet with him. He assumed the applicant may have forgotten about the repayment agreement reached in July 2007 and as there had been no unpleasantness between them before August 14, he thought that a face-to-face meeting in which he could review the applicant’s file with him personally would serve to clarify the misunderstanding.
19When the applicant arrived, Mr. McAllister came out to greet him. The applicant did not wish to shake his hand and stated that he did not wish to speak to him. Mr. McAllister suggested that they go into a boardroom, away from the reception area. In the boardroom, Mr. McAllister attempted to take him through his file, but the applicant refused to discuss it with him. Mr. McAllister stated that it was best that he go home and await the letter from the Plan. The applicant asked to meet with the CEO of the Plan, Jim Leech, and Mr. McAllister stated that it was not possible. He also indicated that he was the highest authority at the Plan available to meet with him that day.
20In Mr. McAllister’s evidence, the only persons who had the authority to make the type of special arrangement applicable to the applicant’s situation, allowing him to defer repayment while still receiving pension payments, were himself, Rosemary McLean (the Senior Vice-President Member Services), who was on vacation, and Jim Leech. He could not delegate the applicant’s file to a more junior member of staff.
21The applicant refused to accept Mr. McAllister’s suggestion, became angry and raised his voice. He returned to the reception area and leaned over the reception desk, pointed his finger and forcefully directed one of the receptionists to contact Mr. Leech for him. Mr. McAllister followed him into the reception area, trying to convince the applicant to go home and wait for the letter. The receptionist looked to him for direction and he told her not to contact Mr. Leech. The applicant stated that he refused to leave, and Mr. McAllister repeated his request several times. He stated that if the applicant did not leave, he might have to call security. The applicant responded by saying he should call 911. The applicant was agitated and speaking more and more loudly.
22One of the two receptionists asked Mr. McAlllister if he wished her to call security, and he replied yes. She then pressed the panic button at the desk.
23In a few minutes, two uniformed security officers arrived, followed by two others in plain suits, including Mr. Ebad. Mr. McAllister briefly explained that there was a disturbance and that he had asked the applicant to go home. The officers told the applicant that he had to leave the premises. At first the applicant refused to leave. He was still agitated and speaking loudly and he maintained that he was on public property and did not have to leave. He stated that he had the right under the Charter of Rights to stay there. Mr. Ebad advised him that it was private property and that he had been asked by the Plan to leave the floor and he was obliged to leave. The applicant asked for and obtained the names and badge numbers of all the security officers. He was escorted to the elevator by the two officers in plain suits, went downstairs and left the building.
24The applicant testified that one plain-clothed security officer plus eight in uniforms came to the offices of the Plan. This is contrary to the evidence of all other witnesses and I do not accept it. The applicant also testified that when he arrived at the ground floor of the building he was told never to come back or he would face arrest. This is contradicted by the evidence of Mr. Ebad and I accept Mr. Ebad’s evidence on this point. The applicant was not given a trespass notice, nor told that he could not return to the building.
25The applicant also testified that Mr. McAllister intended to have him arrested and thrown in jail. None of the evidence supports any statements to that effect, nor gives rise to the inference that this was his intent.
26Mr. McAllister testified about his decision to ask the receptionist to call security. He stated that it was a stressful situation and he was unsure where it would lead. When the applicant made a reference to calling 911, he considered it threatening and decided that it would be best to have security’s help in de-escalating the matter, and to escort the applicant out of the building. He was unsure of the applicant’s meaning and decided to treat it as a potential safety matter. He thought that “cooler heads would prevail” when the applicant received the statement he had asked for. He stated that he would not have called security if the applicant had simply left and if he had not mentioned 911.
27Mr. McAllister also testified that had Rosemary McLean been available on that day, he would have consulted with her about the applicant’s situation, but that avenue was not available.
28The two receptionists testified about the events. They both stated that they were afraid of where the events were leading, and whether it would result in a “fight”. One of them testified that she felt worried for Mr. McAllister.
29During the course of his evidence, the applicant wished to refer to medical documentation, some of it dating back to 2001, to explain his medical condition at the time of these events. He stated that his intent in introducing this evidence was to show what could have happened to him if he had been put in jail. He stated that there was a very good chance that he could have had a stroke. I ruled that it was unnecessary for me to receive that evidence, as it did not assist in my determination of the issues before me, either on liability or remedy.
THE APPLICANT’S SUBMISSIONS
30The applicant submitted that he made it clear on August 14 and August 15 that he did not want anything more to do with Mr. McAllister. He submitted that Mr. McAllister knew this and decided to come out to confront him and teach him a lesson, because he knew that the applicant was a black man. The applicant submitted that Mr. McAllister “forced himself on me” and that he “had no right to be in the reception area.” He submitted that Mr. McAllister escalated the situation by coming to see him when he knew that the applicant did not wish to meet with him.
31He also submitted that the receptionists’ views of the situation may have been influenced by stereotypes of the “aggressive black man”. He submitted that his behaviour was improperly treated as aggressive. Gesticulation should not be interpreted as intent to engage in a fight. The applicant stated that “that’s how Caribbean people are when they get excited, it doesn’t mean they are going to fight.” The applicant referred to the Ontario Human Rights Commission’s Policy and Guidelines on Racism and Racial Discrimination (June 2005) which gives as an example of race discrimination the treatment of normal differences of opinion as confrontation or insubordinate when involved with racialized persons. Although he did not have the material before him, the applicant referred to the research done by Frances Henry on racism and racial profiling.
32The applicant submits that if he had been a white man, Mr. McAllister would not have given the direction to the receptionist to press the panic button. He would also have not insisted on meeting with him in the face of the applicant’s express wishes. However, to Mr. McAllister, he was just a black man with the audacity to question his decision. Although, in his Application, the applicant suggests that he was taken advantage of because of his age, this argument was not pursued at the hearing.
DECISION
33On the evidence, I am satisfied that the applicant’s race, colour, ethnic origin and age played no role in the decision by Mr. McAllister to call on security to assist in escorting the applicant from the offices of the Plan on August 15, 2008.
34The Tribunal is aware of the research on the role of race in social interactions that the applicant referred to, and has considered it in its decisions: see for instance Sinclair v. London (City), 2008 HRTO 48. It is accepted by this Tribunal that racism, and stereotypes about black men, may play a role in many social interactions without those involved intending or being aware of it. Further, and related to this, it is a reality that in many cases of alleged racial discrimination, there is no direct evidence that an applicant’s race or colour was a factor in any of the events at issue.
35It is for this reason that the Tribunal must review the evidence carefully, and with this social reality in mind, in determining whether an inference of racial discrimination can be made based on all of the circumstances.
36It should be noted that the applicant argued at the hearing that the actions of Mr. McAllister went beyond any unconscious stereotyping. As described above, he believed that Mr. McAllister fully intended to provoke a confrontation with him, because he was a black man and not a white man, and was motivated by direct and intentional racism. There is no support in any of the evidence for such a conclusion. The evidence shows that Mr. McAllister treated the applicant with respect and courtesy throughout their dealings. Based on all the evidence of their prior interactions, and the facts of August 15, 2008, there is simply no basis for any suggestion that Mr. McAllister was motivated by anti-black prejudice.
37I also find that the evidence does not support an inference that the decision to ask for assistance from security on August 15 was based on any unconscious racial discrimination or stereotyping. The evidence was that the applicant was upset, agitated and refusing to leave the office. He was also refusing to accept any of Mr. McAllister’s attempts to explain the situation to him. In short, the applicant was creating a disturbance in the reception area and it did not appear that he was prepared to either leave or calm down.
38After having requested that the applicant leave the office several times, to be met with refusal and a continuation of the verbal confrontation, Mr. McAllister gave the direction to call security. Mr. McAllister stated that the applicant’s reference to calling 911 raised a safety concern in his mind, in that he was unsure what to make of that reference. While that might not have been the only way to interpret the applicant’s comment, in the context of a heated verbal confrontation, a refusal to leave the office and agitated behaviour by the applicant, I do not take his reaction as an indication of race discrimination.
39Further, the decision made was to call security in order to assist in escorting the applicant from the offices. It was not intended to nor did it result in the arrest of the applicant or any police involvement. It did not have the effect of barring the applicant from the premises or from any further dealings with the Plan. In this respect, and in all the circumstances, requesting assistance from security was not so excessive or overreaching a reaction, that it might suggest race discrimination.
40It may be argued that seeking removal of the applicant from the office was not the only option available to Mr. McAllister, and that the applicant should have been permitted to contact the CEO, or to remain in the office. However, whether or not these other options were realistic and, again, in all the circumstances, I cannot find that ruling them out was an indication of discrimination.
41Finally, although in his Application the applicant states that he has been denied access to the Plan and that Mr. McAllister has ordered the staff not to deal with him, there is no evidence to support this and in fact at the hearing, the applicant testified about his ongoing dealings with the Plan.
42In conclusion, I am satisfied on the evidence that the applicant’s race, ethnic origin, colour and age played no part in the events of August 15, 2008, and the decisions and actions of the respondent on that day. The Application is dismissed.
Dated at Toronto this 25th day of October, 2010.
“Signed by”
Sherry Liang
Vice-chair