HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Peikang Dai
Applicant
-and-
The Presbytery of East Toronto, Presbyterian Church of Canada
Respondent
DECISION
Adjudicator: Judith Hinchman
Indexed as: Dai v. Presbyterian Church of Canada
AppearanceS BY
Peikang Dai, Applicant ) Self-represented
The Presbytery of East Toronto, Presbyterian ) David Elenbaas,
Church of Canada, ) Counsel
Respondent )
INTRODUCTION
1This is an Application received March 27, 2009 under section 53(5) 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 in January 2007 (the “Complaint”) and abandoned upon filing this Application with the Tribunal.
2The applicant alleges that the respondent discriminated against him in employment and vocational association on the basis of race, colour, ethnic origin; that through comments made by certain members of the respondent, it harassed him in employment on the basis of race, colour, and ethnic origin, and it reprised against him for pursuing Code-related rights.
3In a hearing on December 10, 2009 the Tribunal heard the applicant’s evidence on his allegations. By Interim Decision 2010 HRTO 883 I dismissed most of the allegations in the Application on the basis that the applicant had not established a prima facie case of discrimination to which the respondent must respond. A half-day hearing was scheduled to hear the respondent’s response to the remaining allegations.
4The remaining allegations are that alleged comments made by five members of the respondent’s clergy were, either taken together or individually, acts of discrimination or harassment on the basis of race, colour, or ethnic origin, or evidence of reprisal.
BACKGROUND
5The respondent, the Presbytery of East Toronto, Presbyterian Church in Canada (the “Presbytery”), is a Protestant Church. The applicant alleges that five Presbytery clergy made discriminatory comments to him. The applicant also alleges that some of these comments evidence that the respondent reprised against him for raising Code-related concerns to the Presbytery. He also stated that he met with the “all-white” Pastoral Care Committee whose attitude was “hard to take”.
6The complete background to the Application is outlined in my earlier Interim Decision cited above and is not repeated in this Decision.
Evidence
Alleged Comments
7When giving his evidence at the first day of hearing, the applicant stated that, while none of the alleged comments explicitly refer to his race or the other grounds of discrimination he alleges, he perceived them to be racially motivated. The applicant stated that the alleged comments were condescending in tone and made him feel demeaned. The applicant identified who made the alleged comments but did not specify dates.
Comments allegedly made by Reverend Cameron Brett
8From 1990 to May 2006 the Reverend Brett was a senior minister at the Presbytery’s St. Andrew’s Church located in Toronto. He also administered the Presbytery’s Cooke’s Fund. This fund was established by the sale of assets from a former church. The income from the invested assets is used to fund new congregations or experimental ministries, or to promote outreach. Reverend Brett testified that the process for awarding grants from this fund begins with a request made to the Presbytery. If the Presbytery agrees to “receive” a request it then forwards that request to the Cooke’s Fund trustees who consider it and make a recommendation back to the Presbytery. Ultimately the Presbytery makes the final decision on any request.
9Reverend Brett was also at the relevant time the convenor of the Students and Colleges Committee who had oversight of candidates for the ministry of the Presbyterian Church. In that capacity, he often spoke to the applicant and felt that he had become a friend and trusted advisor of the applicant. He testified that the committee was impressed by the applicant’s gifts for ministry and his manner.
10Although Reverend Brett became aware through the Presbytery that the applicant had proposed a new mission for Mainland Chinese, the Presbytery never forwarded a funding request for the proposed new ministry to the Cooke’s Fund. Reverend Brett characterized his involvement with the applicant’s proposal as indirect in that he was aware of it and the applicant asked his advice as a friend and colleague.
11Reverend Brett was never a member of the Pastoral Care Committee.
12The applicant alleges that Reverend Brett made the following comments which I address separately below:
The Cooke’s Fund only helps crying babies; If Presbytery of East Toronto is not calling you, maybe God is calling you somewhere else; I hope that you are not starting this ministry to receive a stipend.
You are not a team player; You need to have a worshipping community before we can even start thinking about supporting your work; No one has asked you to do this work.
If you hadn’t complained to the Presbytery of East Toronto about your exclusion from Knox Session in 1998, it would have been much easier for us to help you now.
If you hadn’t accused Presbytery of East Toronto of racism, we might have made the decision to support you financially.
This is not a sustainable ministry; No one has asked you to start this ministry. It is all your initiative; It takes at least two years to start a new project in this Presbytery.
If you take your petition to the General Assembly, it will take longer to solve this issue. Are you ready for it?
Cooke’s Fund Comment
13Reverend Brett does not recall saying that the Cooke’s Fund only helps crying babies. He does recall saying something like “If Presbytery of East Toronto is not calling you, maybe God is calling you somewhere else,” to encourage the applicant not to be unduly disappointed if his proposal was denied. He testified that he counseled the applicant not to put all his hopes for a new mission with the Presbytery and that if this did not work out maybe something else better would. He did not recall saying that he hoped the applicant was not starting the ministry to receive a stipend.
Team Player Comment
14Reverend Brett testified that he never said the applicant was not a team player. He did say that within the Presbyterian Church it is important to understand the need to work collegially. Reverend Brett recalls also saying something similar to the second part of the alleged comment along the line that a basic criteria for the Church to set up any new worshipping community is that you first identify a group of people who are already meeting and desire to worship together. With respect to the last phrase, he did not say those exact words, but advised that because the applicant had begun the mission on his own initiative it would be important to have the Presbytery on board so that they “own” the idea thus give it more support.
Knox Session Comment
15Reverend Brett does not recall commenting to the applicant about the Knox Session. He was familiar with the applicant’s exclusion from the Knox Session in 1998. At that time the applicant was a newly ordained minister. Reverend Brett testified that he felt the session moderator had narrowly interpreted Church law to not permit the applicant to bring forward a concern at the session meeting. He disagreed with this approach and, as a member of the committee constituted to consider the applicant’s complaint about the exclusion, supported the applicant’s position. Ultimately the committee determined the applicant was unfairly excluded and adjudicated in his favor. The exclusion from speaking at that session is not part of the Application.
Financial Support Comment
16Reverend Brett not only does not recall making this comment, he also testified that the Presbytery never forwarded a funding request to the Cooke’s Fund respecting the applicant’s proposal or any other request on behalf of the applicant. Thus the Fund never had a funding decision before it that related to the applicant.
Sustainable Ministry Comment
17Because Reverend Brett does not recall seeing a detailed budget for the applicant’s proposal, he never formed an opinion of the proposed mission’s financial sustainability. He testified that if the Presbytery had sent a funding proposal to the Cooke’s Fund, he would have expected to see a detailed budget then.
General Assembly Comment
18Reverend Brett does recall saying something similar to this statement. He testified that this would have been the same advice he would give to anyone regarding whether or not to pursue a complaint through the General Assembly judicial process versus informally dealing with it. His view is that the General Assembly process is lengthy and so it is generally advisable to resolve matters informally by first exhausting all other avenues. However he never tried to discourage the applicant from taking that route if that was his preference.
Comments allegedly made by Reverend Charlotte Stuart
19Reverend Stuart retired from the Pastoral Charge of the respondent’s St. John’s Presbyterian Church in Toronto in 2009. At the relevant time she was the convenor of the Pastoral Care Committee of the Presbytery of East Toronto. The committee, comprised of ordained ministers and elders, was responsible to meet with Presbytery ministers and members who were experiencing problems. It had a very small budget to employ solutions committee members might think appropriate.
20The Reverend Stuart testified that she met the applicant in 1994 or 1995 at a guidance conference for new students at Knox College. Her role was theological reflector and as such she was to listen and speak to the students. She recalls being extremely impressed with the applicant and felt that they “hit it off.”
21Reverend Stuart recalls that the applicant came to St. John’s for ten hours per week as a field placement. She also recalls that the senior minister at the Presbytery’s Knox Church, located on Spadina Avenue, invited her to attend an informal lunch to hear the applicant speak about his proposed ministry.
22Following a 2005 meeting of the Presbytery’s Missions Committee, where the applicant expressed that his family was impoverished and using a food bank, the Presbytery asked the Pastoral Care Committee to meet with the applicant. Reverend Stuart felt that it was important to meet with both the applicant and his spouse and so arranged a time that she understood would work for both of them. The Pastoral Care Committee members were of diverse ethnic and racial background but only some members were free at the time set for the meeting and thus, that day, the racial makeup of the committee was Caucasian or “all white” as the applicant has alleged. This was not by design, however, and only reflected who was free at that time.
23The committee had a small annual budget of approximately $2,000 to work with. The applicant came to the meeting alone indicating that his spouse was unable to attend. The committee offered to, and did, pay for some family counseling. Reverend Stuart also made two personal donations to the applicant to help with his finances.
24The applicant alleges that Reverend Stuart made the following comments which I address separately below:
Why don’t you try to seek a call to pastor an English congregation? Do you have to do Christian work on Spadina Avenue?
What do you mean by ministry in the inner city? What do you mean by inner city work?
Have you tried to find accommodation for your family in a homeless shelter like Evangel Hall?
English Congregation Comment
25The Reverend Stuart indicated that she never would have labeled a congregation as “English.” She testified that she might have questioned why the applicant did not think of seeking a call in an established congregation with a vacancy. She worked in the inner city and wished at the time that he could join her congregation. Reverend Stuart believes that she may have asked the applicant to do this and said that she had hoped to find funds for him to work with her.
Inner City Comment
26Reverend Stuart testified that in her Knox College role it was her practice to ask each student at the beginning and end of an academic year for their definition of inner city as it related to the ministry work. This was a question intended to focus them on what they had learned about working in the Toronto inner city. She would not have singled out the applicant with this question.
Evangel Hall Comment
27Reverend Stuart testified that she never would have equated Evangel Hall to a homeless shelter. She testified that this is an affordable rent 14-storey apartment building that she felt was quite attractive. It was built in partnership between the Church and government funding. She thinks that she may have said that she could help the applicant’s family to be placed on the waiting list for an apartment.
Comment allegedly made by Reverend Stephen Kendall
28Reverend Kendall is the principal clerk of the General Assembly, which is the highest court of the Presbyterian Church in Canada, and meets for about a week once a year to deal with governance and discipline issues. His role is to support the court with advice on governance and policy. He also supports various Presbyterian Church committees. His office is at the Church’s national headquarters at 50 Winfred Drive in Don Mills.
29Reverend Kendall recalls first meeting the applicant when he was on staff at the Knox Presbyterian Church. He was aware that the applicant was seeking approval to establish a new mission. He did not have any official role in that he was not on any committee dealing with the proposal such as the Missions Committee. He was not on the Presbytery’s Pastoral Care Committee.
30He did interact with the applicant in 2005, when the applicant conducted a hunger strike at the national office. Reverend Kendall said it was not entirely clear to him what the applicant’s issues were, however they appeared to be related to the proposed ministry. In his capacity as manager of the National Office, he monitored the situation and brought the applicant water. Although the applicant was welcome to use the picnic table outside the office building, when he came in and used the courtesy phone over extended periods, the staff became anxious. Reverend Kendall therefore asked the applicant to stay outside.
31Reverend Kendall does not recall making the alleged comment “If Presbytery of East Toronto is not calling you why not go to find a job to deliver pizza?” He testified this would not have been characteristic of the advice he was generally called upon to give.
32The respondent introduced a letter dated April 27, 2005 signed by Reverend Kendall, informing the applicant that he would receive $1250 gift from the Emergent Benevolent Fund, which is authorized to provide one-time gifts to support cases of need. Reverend Kendall wrote that the Fund committee made the gift after he received a phone call from Reverend Jim Biggs communicating that the applicant was experiencing financial burden and asking if there were any funds available to assist. Reverend Kendall testified that he had no knowledge at that time of what the Pastoral Care Committee was considering.
Comments allegedly made by Reverend Kevin Livingston
33At the relevant time Reverend Livingston was the senior pastor at Knox Presbyterian Church. He arrived at Knox in 2000, was aware of the applicant, and met him in 2003. He recalls that he was excited about the applicant’s idea for a new ministry. He had numerous meetings with the applicant and his spouse to discuss the idea and then broadened the platform to other groups. Knox Church encouraged the development by offering rooms for prayer services and bible study for the “embryonic” group. He felt that he encouraged the applicant.
34He recalls that between 2003 and 2004 a strategic plan for the new ministry was developing to bring to the Presbytery Missions Committee in 2005.
35He characterized his relationship with the applicant as cordial to begin with, however, over time and after the proposal was deferred in 2005, the relationship became strained. He was neither a member of the Missions Committee nor the Pastoral Care Committee.
36Reverend Livingston does not recall asking, “How many ethnic churches do you want us to have in this Presbytery?” He said that this would not make sense as he had a keen interest in growing the Church among different racial groups and that, in fact, Knox Church had been instrumental in organizing Arab and Korean congregations and he was excited to be a part of a third new ministry.
37With the respect to the alleged comment: “It is your own fault,” without a context for “it” or a date, Reverend Livingston could not say what this might relate to. He testified that he and the applicant had spent hours together and without more particularity he couldn’t say whether or not he made the comment or if he did what he meant by “it”.
Comment allegedly made by Reverend Richard Fee
38Reverend Fee was the former Deputy Clerk of the General Assembly. He believes that he met the applicant when the applicant was a student for the ministry at Knox College. He attended Presbytery meetings sporadically and thinks that he met the applicant at one of those meetings.
39He was aware of the applicant’s proposed new ministry but did not have any direct role in the matter or any involvement at all.
40He had been a member of the Pastoral Care Committee, but by 2005 was no longer a member. He did not recall being present for any meetings the applicant attended.
41The Reverend Fee does not recall saying to the applicant “Don’t we already have work among refugees and immigrants in Toronto?”
ANALYSIS AND DECISION
Harassment
42The applicant alleges that the alleged comments amount to harassment on the basis of race. Harassment is defined in the Code’s s.10 to mean “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known as unwelcome.”
43The applicant has testified that the alleged comments do not specifically reference his race, colour, or ethnic origin. Because the comments do not directly refer to a Code-protected ground, the applicant urges that I infer that, taken together, these nonetheless amount to racial harassment.
44Assessing credibility involves the consideration of a variety of factors. The Tribunal has applied the factors and approach followed by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA), which include considering a witness’ opportunities for knowledge, powers of observation, judgment and memory, and ability to describe clearly what he has seen and heard. In addition, the court stated:
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.
45Other factors the Tribunal has applied as relevant factors in assessing credibility include corroborative evidence from other witnesses, and the extent to which witnesses may have an interest in the outcome of the case, or have self-interest in testifying for one of the parties. See Shah v. George Brown College, 2009 HRTO 920. Also, in determining whether a party has met its burden of proof, the failure to call a witness who has material and direct knowledge of the disputed facts may allow the Tribunal to draw an adverse inference that the party did not call a particular witness because the witness would not have been supportive to that party’s case. See Shah, supra.
46In assessing the applicant’s claims, I find that he was not able to describe where or when the comments were made. Furthermore, he was unable to provide additional context to any of the comments. Each of the respondent’s witnesses was able to more specifically and clearly describe their interactions with the applicant and to pinpoint the time frame when they may have held conversations. I found these witnesses’ accounts of their interactions with the applicant credible and where the applicant and these witnesses differed, I prefer the respondent’s witnesses’ recollections.
47For those reasons, I find that many of the alleged comments were not made. And I am not persuaded that taken together the remaining comments amount to a course of vexatious conduct within the meaning of the Code.
48The applicant’s evidence suggested that members of the Pastoral Care Committee made many of the alleged comments. For example, the applicant alleged that the attitude of the “all-white” Pastoral Care Committee was “hard to accept” and that its members made several comments that were racially motivated. At the subsequent hearing, however, the undisputed testimony of the five clergy clarified that only Reverend Stuart was on the Pastoral Care Committee at the relevant time.
49Reverend Stuart was a credible witness with a recollection of the events of the Pastoral Committee’s interaction with the applicant that were detailed and reasonable in the circumstances. I accept her undisputed evidence that the composition of the Committee was ethnically diverse, and I accept her explanation for why only Caucasian members of the committee were able to attend its initial meeting with the applicant. The applicant did not dispute Reverend Stuart’s testimony that this committee assisted him financially and had limited means to do so.
50Furthermore, I also am not persuaded that Reverend Stuart made discriminatory comments to the applicant. Any query to the applicant about looking for a vacancy within an established congregation in the context of the relationship that she described, that was not disputed by the applicant, in my view amounts to helpful advice. Similarly, her offer to assist the applicant’s family with a place on the waiting list for an apartment also is more in keeping with her explanation of her attempts at the time to be supportive and helpful to the applicant.
51I also accept Reverend Stuart’s evidence that she routinely began and ended each Knox College term by asking her students certain questions meant to cause reflection. Not only is there is no evidence that she singled out the applicant with the question regarding the meaning of inner city, this comment does not suggest discrimination on a Code-related ground.
52None of the comments that Reverend Stuart made amount to discrimination under the Code or support a course of vexatious conduct within the meaning of the Code.
53Given the evidence, I am unable to find that the Pastoral Committee discriminated against the applicant in making comments or treated him differently than any other member sent to it for assistance, or that Reverend Stuart made any harassing or discriminatory comments to the applicant.
54With respect to Reverend Brett, I accept his testimony that the Cooke’s Fund was not approached to assist the applicant and therefore find there is no rational basis to find he would have made the alleged comment about the Cooke’s Fund. With respect to the other comments, I accept as more reasonable and probable his explanation that any such comments, if made, amount to advice he would have given to any other member aspiring to develop a new Church mission. As such, there is no basis to conclude Reverend Brett’s comments to the applicant were discriminatory.
55With respect to Reverend Kendall, I am not persuaded that he made the alleged comment “If the Presbytery of East Toronto is not calling you why not go to find a job to deliver pizza?” As stated earlier, in contrast with the applicant, Reverend Kendall was able to provide a detailed account of his limited interaction with the applicant at the relevant time. The applicant provided no evidence to dispute Reverend Kendall’s evidence that he had no official role dealing with the applicant’s proposal. Therefore I am not prepared to find Reverend Kendal made the alleged comment.
56With respect to Reverend Livingston, the applicant did not dispute the Reverend’s description of their relationship at Knox Church or that the Reverend was an early supporter of the applicant’s proposal. Nor did the applicant dispute the Reverend’s evidence that he supported growing the Church among different racial groups. In the circumstances I accept as more reasonable the Reverend’s evidence that he would not have made the alleged comment about ethnic churches. With respect to “it is your own fault” comment, without more context and particularity, it is simply too vague to satisfy the applicant’s evidentiary burden.
57Finally, with respect to Reverend Fee, he did not recall having much interaction with the applicant. The applicant has not disputed that characterization and as the applicant has not provided any context to the alleged comment he attributes to the Reverend, I prefer Reverend Fee’s evidence that he did not make the comment.
58In summary, I have found that the evidence does not support the applicant’s allegations and dismiss this aspect of his Application.
Reprisal
59The Code’s s. 8 provides that:
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
60The applicant alleges that the Pastoral Care Committee knew he was pursuing an internal complaint of racial discrimination and either reprised or threatened to reprise against him by treating his request for support differentially because he was pursuing that complaint. See Jones v. Amway of Canada Ltd., 2001 CanLII 26217,.
61Although the applicant appeared to frame his allegations relating to his treatment by the Pastoral Care Committee as “harassment” on the basis of race, it was clear from the totality of his evidence and submissions that he was more generally alleging that his race or ethnic origin were a factor in his treatment by members of the Pastoral Care Committee.
62The evidence shows that the Committee offered to and did meet with the applicant to counsel him on how he might find additional income, and in fact provided financial assistance from its small budget. In the circumstances, these acts, in my view, contradict any allegation that at the same time as the Committee was providing him with financial support, it intended to reprise against him for pursuing an internal complaint of racial discrimination. The allegation of reprisal is also dismissed.
Dated at Toronto, this 7th day of December, 2010.
”signed by”______________
Judith Hinchman
Member