Paul Rodriques v. Toronto Community Housing Corporation, 2010 HRTO 2542

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paul Rodriques Applicant

-and-

Toronto Community Housing Corporation Respondent

A N D B E T W E E N:

Paul Rodriques Applicant

-and-

Canadian Union of Public Employees, Local 416 Respondent

DECISION

Adjudicator: Mark Hart Date: December 29, 2010 Citation: 2010 HRTO 2542 Indexed as: Rodriques v. Toronto Community Housing

APPEARANCES BY

Paul Rodriques, Applicant ) Glen Morrison, Representative Toronto Community Housing Corporation, Respondent ) William LeMay, Counsel Canadian Union of Public Employees, Local 416, Respondent ) Michael McCreary and Michael Mazzuca, Counsel

1These are two Applications made under s.53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the Code), both dated April 4, 2009. The underlying complaints were filed with the Ontario Human Rights Commission (the “Commission”) on March 26, 2008, as against the respondent Toronto Community Housing Corporation (“TCHC”) and on April 11, 2008, as against the respondent Canadian Union of Public Employees, Local 416 (“CUPE, Local 416” or the “union”).

2The hearing in this matter was held on August 10 and 24, 2010, in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications, that section 53 applications proceed in an expeditious manner. On consent of all parties, I took the lead in questioning the witnesses and heard from the applicant and six witnesses called by the respondents. Cross-examination of the applicant was deferred pending completion of my questioning of the applicant and all other witnesses. Cross-examination of the respondent witnesses occurred following my questioning and any supplementary questions by counsel for the respondents.

The Nature of the Allegations at Issue

3The complaints filed by the applicant allege that he experienced discrimination and harassment because of his disability and reprisal, contrary to sections 5, 6, 8 and 9 of the Code. This matter was the subject of a grievance arbitration proceeding that addressed the applicant’s allegations that his disability was not properly accommodated in the workplace. The applicant suffers from multiple chemical sensitivity which causes an adverse reaction to chemical fumes and cigarette smoke.

4By prior Interim Decision dated February 4, 2010, 2010 HRTO 258, it was determined that the grievance proceeding had appropriately dealt with the substance of the applicant’s allegations as they related to the accommodation issues. However, as the grievance arbitrator did not discuss or make any findings with respect to the applicant’s allegations that his Superintendent harassed him after the applicant reported the Superintendent to Toronto Public Health in April 2007, it was determined that this issue had not been dealt with. It also was determined that the grievance arbitrator did not deal with the applicant’s allegation that he brought this harassment to the attention of both TCHC and the union and that they neither addressed nor investigated that situation. As a result, these two issues remained as the subject of the hearing before this Tribunal.

5By further Interim Decision dated June 15, 2010, 2010 HRTO 1350, I noted that the Tribunal to date had only the bare allegation that the applicant “has become the victim of innumerable acts of harassment by the Superintendent” without any specifics or particulars provided as to what these alleged “acts of harassment” were. Further, while the applicant’s complaint outlined steps that he alleges he took to bring this matter to the attention of his union, he had not indicated what, if any, steps he took to bring the alleged harassment to the attention of TCHC.

6Accordingly, I directed the applicant to file a statement setting out the specifics or particulars of each and every “act of harassment” he alleges was engaged in by the Superintendent and detailing what if any steps he took to bring this harassment to the attention of TCHC.

7In response, the applicant filed a statement setting out the following particulars of the allegations that, after Toronto Public Health attended the workplace and issued an order against smoking in the workplace by the Superintendent, the Superintendent engaged in harassment against the applicant:

1. That the Superintendent said “you are the fucking one who called the by-law on me, you fucking cocksucker, I have 27 years seniority and if you think you are getting me out of here, I will see that you will be the one who will be fucking out of here”;

2. That the Superintendent arbitrarily changed the applicant’s work location and would assign the applicant to clean apartments that were freshly painted and where stains and varnish were used that would produce chemical fumes that would aggravate the applicant’s disability;

3. That the applicant was bullied by the Superintendent who would often insult the applicant in front of tenants by shouting arbitrary orders and when the applicant suggested he was already doing something and would attend to the next tasks the Superintendent would come into the applicant’s face shouting as if he wanted to fight, “I am the Superintendent and your boss, do it now”;

4. That when the applicant could not perform some of the tasks because of his disability, the Superintendent would exclaim, “why did [the Manager] give me a handicap and a cripple who cannot do anything”; and,

5. That the applicant was regularly confronted by the Superintendent who wanted to engage him in a fight and the applicant was referred to as the “asshole informer” whenever he encountered the Superintendent.

8The applicant further alleged that in 2007, he complained to the various levels of his union, his Manager and the TCHC WSIB representative, and when they would not address his concerns, he went to the President of the union. The applicant also alleges that he specifically requested that his Manager arrange a meeting for him to complain directly to the TCHC Chief Executive Officer, but this request was denied by the Manager, who told the applicant that it would not look proper if such a meeting was scheduled.

Assessment of Credibility

9The applicant was the only witness called to support the allegations at issue in this proceeding, and his evidence regarding his allegations was generally disputed by all of the respondent witnesses. As a result, my determination in this matter hinges largely upon my assessment of the applicant’s credibility.

10In making this assessment, I have been guided by the principles established in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.). At pp. 356-357, the British Columbia Court of Appeal stated:

…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour 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.

11In the instant case, I have several concerns about the reliability of the applicant’s evidence. In my view, the most telling concerns, although not the only concerns, about the reliability of the applicant’s evidence pertain to an incident involving the applicant and the Superintendent that, while not raised as an allegation before me in this proceeding, formed an integral part of the events at issue.

12On April 18, 2007, a Tobacco Enforcement Officer for Toronto Public Health responded to a complaint made by the applicant that the Superintendent was smoking in the workplace. This Officer attended at the workplace on April 19, 2007 and found the Superintendent smoking at his desk. The Officer informed the Superintendent that he was in violation of anti-smoking laws. There then ensued some discussion between the Officer and the Superintendent about who had made the complaint, during which the Officer says that the Superintendent referred to the applicant as the “Black guy” or the “Black bastard”. The Superintendent’s evidence is that he first asked whether it was the applicant who had made the complaint, to which the Officer responded that he didn’t know. The Superintendent states that he then sought to identify the applicant for the Officer, and used the term “the tall Black guy”.

13In any event, information was conveyed to the applicant which caused him to understand that the Superintendent had referred to him as a “big Black bastard”. There is no dispute that the applicant contacted the union and left a message stating that the Superintendent had used this term to refer to him, and that a union representative then contacted the Superintendent, who is also a union member, about this allegation.

14Subsequently, on April 26, 2007, the Superintendent was confronted by another employee who said that he knew that the Superintendent had referred to the applicant as a “big Black bastard” and called the Superintendent a racist. This prompted the Superintendent to file a written complaint that he was being harassed by the applicant as a result of the applicant spreading false rumours about him. This complaint was investigated by the TCHC and upheld as harassment, although the applicant was not disciplined as a result of the investigation.

15Throughout the TCHC investigation and right up until the hearing in this matter, the applicant’s allegation was that the Superintendent had used the term “big Black bastard” to refer to him when speaking with the Tobacco Enforcement Officer. No allegation was raised that the Superintendent had said this directly to the applicant or that the applicant personally had heard this term used. However, at the hearing and for the first time, the applicant alleged that he had personally heard the Superintendent make the comment “big Black bastard”. On cross-examination, the applicant agreed that if this comment had been said to him in person, he wouldn’t need to call the Tobacco Enforcement Officer to confirm whether the comment had been made. The applicant then acknowledged that he had indeed called the Tobacco Enforcement Officer to ask whether the Superintendent had called him a “big Black bastard”.

16In my view, the applicant’s evidence in this regard is simply not credible. As he himself acknowledged, if he personally had heard the Superintendent make the comment, he would not have needed to call the Tobacco Enforcement Officer to ask whether the comment had been made. Yet he agrees that he did make such a call. Further, if he himself had heard the comment, then I would have expected this to have been raised by him during the TCHC investigation or at some point prior to the hearing. It was not. Accordingly, I simply cannot accept the applicant’s evidence at the hearing that he personally heard the Superintendent make this comment.

17Further, the applicant’s Manager gave evidence before me that at a diversity training session on April 27, 2007 where she and the applicant were in attendance, staff members were encouraged to share their experiences. She states that the applicant spoke up and said that someone had referred to him as a “big Black man” to the Tobacco Enforcement Officer and then quickly changed his statement to say that someone had referred to him as a “big Black bastard”. The Manager states that the applicant went on to say that he had spoken to his Manager about this, and she had covered up the incident.

18The Manager states that the applicant had never approached her about this alleged comment, and this prompted her to contact the applicant immediately after the meeting to inquire about his statements. She states that she told the applicant that if anyone had used a racial slur or made any other offensive remark toward him, he would need to file a written complaint for further investigation. She states that the applicant called her back shortly thereafter to say that he was not going to file a written complaint, as he was afraid of being “tricked”. The Manager’s evidence is consistent with the statement that she gave to the TCHC investigator in June 2007 in the context of investigating the Superintendent’s complaint, shortly after the events at issue.

19In his evidence at the hearing, in response to my questions, the applicant denied making the statements attributed to him at the diversity training session and said that he didn’t recall the Manager speaking to him about filing a written complaint. However, on cross-examination, the applicant said that he didn’t remember anything about the diversity training session and said that he didn’t know if it was possible that he made the statements attributed to him by the Manager.

20This in my view provides another indication as to the unreliability of the applicant’s evidence. The alleged “big Black bastard” comment was a significant event that occurred during the very same time period as the allegations at issue in this proceeding. Apart from being extremely offensive on its face, the alleged comment was significant enough to the applicant to prompt him to contact his union about it. This alleged comment also was the subject of a TCHC investigation shortly after it was alleged to have been made. In this context, I find the applicant’s lack of clarity as to whether he made a statement about this alleged comment at the diversity training session and whether his Manager spoke to him about filing a written complaint to be telling.

21I accept the Manager’s evidence that the applicant made the statements attributed to him at the diversity training session and that she thereafter contacted him about filing a written complaint. As indicated above, this evidence is consistent with the statement she gave to the TCHC investigator a short time afterwards, when her recollection of events was relatively fresh. Given the serious nature of the alleged comment and the applicant’s allegation that she as his Manager had covered it up, it is not surprising to me that she remembers this. What is surprising to me is that the applicant either doesn’t recall this or denies that it happened, at the same time as he states that he is able to recall in great detail other comments from and interactions with the Superintendent and reports he says that he made to various management and union representatives from the same time period.

22I also find it telling that the applicant’s evidence regarding his allegations is at odds with all of the respondent witnesses. That the Superintendent denies the allegations made against him is, in itself, not terribly unusual or surprising. But the applicant also stated in his evidence that he specifically raised the “cocksucker” comment with his Manager on the day it is alleged to have happened (discussed in more detail below). This is denied by the Manager, who states that the only comment by the Superintendent discussed with the applicant was the “big Black bastard” comment and this was at her initiative. Moreover, in my Interim Decision, I expressly directed the applicant to provide particulars detailing what steps he took to bring his harassment allegations to the attention of TCHC management, and these particulars did not include any reference to the applicant having raised the “cocksucker” comment with his Manager. This evidence emerged for the first time at the hearing.

23The applicant also stated in his evidence that he raised the alleged “cocksucker” comment with a union representative, Steve Sparkes. This is denied by Mr. Sparkes. The applicant stated in his evidence that he had several discussions with another union representative, Ron Johnson, including at a monthly union meeting, where he provided details of the alleged harassment by the Superintendent. This is denied by Mr. Johnson. The applicant further stated in his evidence that he discussed the harassment by the Superintendent with yet another union representative, Ed Vergara. This is denied by Mr. Vergara.

24At the same time, when the applicant clearly did have opportunities to raise the harassment allegations, the evidence indicates that he failed to do so. For example, the applicant stated at the hearing that the union’s alleged lack of responsiveness both to his accommodation issues and to the alleged harassment caused him to write a letter to the union President dated March 6, 2008. Yet, as acknowledged by the applicant, this letter does not make any reference, even in passing, to alleged harassment by the Superintendent. The applicant’s evidence before me was that he was hoping to have a meeting with the union President to discuss his issues, at which time he would have shared details of the harassment. This, however, does not explain the complete absence in the letter of any reference to the alleged harassment.

25Further, the applicant was interviewed on June 15, 2007, in the context of the TCHC investigation of the Superintendent’s complaint against the applicant, at a time when the alleged harassment by the Superintendent should have been fresh in his mind. At the conclusion of the interview, the applicant is recorded as saying, without prompting, that the Superintendent was making him do jobs that weren’t his, wanted him to clean up all the garbage by himself, and sent him to clean units when the Superintendent knew that it would make the applicant sick. While this arguably speaks to one of the particulars of harassment provided by the applicant, in my view it is telling that this was what the applicant was complaining about at the time, as opposed to serious incidents of name-calling, such as being called a “cocksucker”, an “asshole informer”, or a “handicap” and a “cripple”. If these comments in fact had been made by the Superintendent, it would not, in my view, accord with the preponderance of probabilities that the applicant would complain to the TCHC investigator only about work assignments without any mention of comments of such a serious nature.

26I also was concerned at the hearing about the manner in which the applicant’s evidence came out in response to my questioning. I frequently found myself having to probe the applicant with more and more direct questions, to the extent that respondent counsel objected to my manner of questioning, before the applicant provided critical evidence, particularly as to his reporting of the alleged harassment. For example, in relation to the “cocksucker” comment, I asked whether the applicant had spoken with anyone in the union about this incident, and the applicant responded that he had called Mr. Sparkes and asked him to talk to the Superintendent because his behaviour was rude. It was not until I specifically asked the applicant whether he had informed Mr. Sparkes about the specific words allegedly used by the Superintendent, that the applicant said that he had.

27Similarly, in relation to the alleged “handicap” and “cripple” comment, I asked whether the applicant had spoken to anyone in the union about this incident, and the applicant said that he had spoken to Mr. Johnson. I then asked the applicant to tell me what he had said to Mr. Johnson, and the applicant said that he told Mr. Johnson that the Superintendent had more seniority than him, so the applicant was prepared to move his own work location. I then asked the applicant what he had told Mr. Johnson about the alleged incident, and the applicant said that he had told Mr. Johnson about the Superintendent’s behaviour. It wasn’t until I specifically asked the applicant whether he had told Mr. Johnson that the Superintendent had referred to him as a “handicap” and a “cripple” that the applicant testified that he had. It was this latter exchange that prompted the objection by respondent counsel.

28I appreciate that the act of testifying in a legal proceeding can be an unnatural, stressful and unnerving process, and that witnesses at times have trouble getting out their full story as a result. That is understandable and not an uncommon part of the hearing process. However, in this case, I was left with the impression that rather than giving me his best recollection of the events at issue, the applicant at times was trying to tell me what he thought I needed to hear or what would bolster the strength of his allegations.

29There are other concerns about the applicant’s evidence that I will address in the context of the specific allegations that he has raised. On the basis of the concerns about the reliability of the applicant’s evidence that I have set out above and will set out elsewhere in this Decision, and applying the principles from Faryna v. Chorny, supra, I find that the applicant’s evidence is not credible or reliable, and I decline to rely upon his evidence where it is in conflict with the evidence given by other witnesses in this proceeding.

The Alleged “Cocksucker” Comment

30As indicated above, the applicant alleges that the Superintendent said “you are the fucking one who called the by-law on me, you fucking cocksucker, I have 27 years seniority and if you think you are getting me out of here, I will see that you will be the one who will be fucking out of here”. The applicant’s evidence is that this comment was made on the Monday following his complaint about the Superintendent to Toronto Public Health. As the complaint was made on April 18, 2007, the following Monday would have been April 23, 2007.

31The applicant states that Monday is garbage day, and he was at the work location at 128 Empringham cleaning the garbage, when the Superintendent drove up and made the alleged comment as he was walking from his car to his office. The applicant states that he responded by saying, “instead of you accusing me, why don’t you say good morning, and besides I need some help”, but the Superintendent did not say anything in response. The applicant states that he continued doing his duties, because it was about time for the garbage truck to come.

32The applicant’s evidence is that he called his Manager to report what the Superintendent had said when he was on his break, and then called his union representative about the alleged comment around lunchtime.

33There is no dispute that there was an incident relating to garbage clean-up that occurred on April 23, 2007. The Superintendent states that he directed the applicant to clean up the garbage, and the applicant said only that he would do “his share”. The applicant’s version is that he asked the Superintendent to assist him in cleaning up the garbage, but the Superintendent refused and stood there watching the applicant while he worked. There also is no dispute that this incident was reported by the Superintendent to the Manager, and prompted her to come to 128 Empringham to discuss the incident.

34The evidence of the Manager and the Superintendent is that this incident and general issues regarding the work relationship between the applicant and the Superintendent were discussed at a meeting with all three individuals held on April 24, 2007. The evidence of these two individuals is that the meeting to discuss these issues was held in the Superintendent’s office. In contrast, the applicant’s evidence is that the Manager came down that day in response to the Superintendent’s phone call, and that the three of them discussed the issue outside. The applicant’s evidence is that the meeting on April 24, 2007 was for the purpose of discussing the Superintendent’s violation of the no-smoking by-law, and that no work issues were discussed. There is no dispute between the parties that in the context of discussing the garbage incident, whether on April 23 or 24, 2007, the applicant made the statement, “put a rope around the Black man’s neck and make him work like a slave”, which I understand to be a reference to the applicant’s perception that he was required to do all the work cleaning up the garbage while the Superintendent looked on like a slave master.

35In addition to the issues with the applicant’s evidence already canvassed above, I have several problems with the applicant’s evidence about this alleged incident. First, the Manager does not dispute that she was called by the Superintendent about the garbage incident and came down to address this issue. If in fact she had come down on the same day, April 23, 2007, I don’t see any reason to explain why she would lie about this, and instead say that she came down the following day. Nor does it make sense to me that she would discuss a work conflict of this nature in the open, as alleged by the applicant, as opposed to meeting in an office setting, as the Manager and the Superintendent say.

36Second, if in fact the April 24, 2007 meeting was for the purpose of addressing the Superintendent’s violation of the no-smoking by-law, as alleged by the applicant, I don’t understand why the applicant would be part of that meeting. The evidence indicates that the Superintendent received discipline, in the form of a written warning, over his conduct of smoking in the office. This is a disciplinary issue as between the Manager and the Superintendent, and would not and should not have involved the applicant’s participation. Further, at this point and through the time of the TCHC investigation, the applicant was not even acknowledging that he had been the one who made the complaint to Toronto Public Health.

37Third, when I was questioning the applicant, I asked him whether he reported the alleged “cocksucker” comment to his Manager, and he told me that he had done so in a telephone call made during his morning break. He did not give evidence that he had reported this comment to his Manager at any other time, nor was any such allegation set out in his particulars. Moreover, at the conclusion of my initial questioning of the applicant, I expressly confirmed with him that the alleged telephone call to the Manager regarding the “cocksucker” comment and the alleged voicemail message following the “handicap” comment were the only two times that he reported the Superintendent’s alleged behaviour to the Manager.

38However, on cross-examination, the applicant testified for the first time that he also raised the “cocksucker” comment at the meeting with the Manager and the Superintendent, which would represent a third occasion on which he had raised the Superintendent’s alleged conduct with the Manager. Once again, I was left with the impression that, when confronted as to why he wouldn’t have raised this alleged comment at a meeting with the Manager and Superintendent that occurred either on the same day or the day following the alleged comment, the applicant responded for the first time that he had raised the alleged comment at this meeting in order to bolster his allegations and avoid having to explain his failure to do so.

39On the basis of these and the aforementioned general concerns about the credibility and reliability of the applicant’s evidence, I find that I do not have sufficient reliable evidence to support the applicant’s allegation that the Superintendent made the “cocksucker” comment, or that the applicant reported this alleged comment either to TCHC management or the union.

Allegations re Work Assignments

40In his evidence at the hearing, the applicant raised two specific incidents where he alleges that the Superintendent assigned him work that the Superintendent knew would aggravate the applicant’s disability. The applicant’s evidence is that both incidents occurred in the week after he reported the Superintendent to Toronto Public Health.

41The first alleged incident involved a move-out at a unit at 50 Empringham. The applicant’s evidence is that the Superintendent was aware that because of the applicant’s disability, he was to go into a unit first to do the move-out, before the contractors came in to paint and to varnish the floors. On this specific occasion, the applicant states that he asked the Superintendent whether he was going in first, because of his restrictions, but the applicant states that the Superintendent didn’t respond and just walked away. The applicant states that when he went to the unit, the painting and varnishing already had been done, so he had to open the unit to air it out before he could do the move-out.

42The second alleged incident involved a move-out at a townhouse. The applicant states that when he went to the unit to do the move-out, the smell was so strong that he couldn’t perform the work. He states that he went back and asked the Superintendent why this work had been assigned to him. It is at this point that the applicant alleges that the Superintendent made the “handicap” and “cripple” comment (addressed below).

43The Superintendent’s evidence is that there was only one occasion where he recalls the applicant taking issue with a work assignment because of the smell. He states that he had assigned the applicant to get some garbage out of a basement, where the floor had already been verithaned two weeks earlier. The Superintendent states that the applicant came back and said not to ever send him to a unit like that again, because the smell made him sick. The Superintendent states that the applicant did look sick on this occasion. He states that, as the floor had been verithaned two weeks previously, he was not aware that this would affect the applicant. The Superintendent does not recall whether this incident took place in the week following the visit by the Tobacco Enforcement Officer.

44The Manager’s evidence is that she recalls that at the meeting on April 24, 2007, an issue was raised relating to the applicant being asked to clean out some garbage from a unit that had been freshly painted. No evidence was provided to indicate that the applicant alleged at this meeting that this work had been assigned to him by the Superintendent knowing that it would aggravate his disability or in reprisal for having been reported to Toronto Public Health.

45As stated above, given my concerns about the credibility and reliability of the applicant’s evidence, I am not prepared to rely upon his evidence to support a finding of a violation of the Code. I am aware that in the grievance arbitration proceeding, the applicant raised allegations about his disability not having been properly accommodated by TCHC. That issue was dealt with by the grievance arbitrator and is not before me. The issue before me is whether the alleged assignment of work to the applicant by the Superintendent on these two specific occasions constitutes harassment because of the applicant’s disability or reprisal for the applicant having raised a Code-related issue.

46In order to support a finding of harassment in relation to these alleged incidents, as opposed to a denial of accommodation which issue is not before me, I would have to have sufficient reliable evidence to support a finding that the Superintendent knew or ought reasonably to have known that his conduct in making these alleged work assignments to the applicant was unwelcome. Given my concerns about the credibility and reliability of the applicant’s evidence, I have no such sufficient reliable evidence before me to support such a finding.

47With regard to the allegation of reprisal, I would need to have sufficient reliable evidence to support a finding that the Superintendent made these work assignments intentionally because of the applicant having raised a Code-related issue. Once again, given my concerns about the credibility and reliability of the applicant’s evidence, I have no such sufficient reliable evidence before me to support such a finding.

48Further, I am concerned that allegations regarding two specific incidents alleged to have occurred in a very specific time period, namely the week of April 23, 2007, were raised by the applicant for the first time at the hearing. These allegations were not set out in the applicant’s complaint, or in his statement of additional facts, or even in the statement of particulars provided in response to my Interim Decision. In my view, it is profoundly unfair to require a party or witness to respond to such specific allegations with no prior notice and with the specifics of the allegations having been raised for the first time almost three and a half years after the incidents are alleged to have occurred.

49For all of these reasons, I find that I do not have sufficient reliable evidence to support the applicant’s allegations regarding work assignments by the Superintendent.

Allegation re Shouting in front of others

50Based on the evidence given by the applicant at the hearing, this allegation arises out of one specific alleged incident. The applicant states that the incident occurred on a Friday when he was working at a building at Neilson. He states that the Superintendent came to this location and wanted the applicant to come down to Empringham. The applicant states that the Superintendent shouted at him and spat, saying “I want you to come down to Empringham, I am the Superintendent”. The applicant states that this occurred one and a half to two weeks after he reported the Superintendent to Toronto Public Health.

51Unlike the other incidents, the applicant states that there were two witnesses to this incident, a White man and a White woman. The applicant further states that at the time of the incident, the White man asked who the Superintendent was and why he spoke to the applicant like that and also said that the Superintendent didn’t have to speak to the applicant like that. The applicant states that he does not know the names of these two individuals, and neither were called to testify before me at the hearing.

52The Superintendent has no recollection of any such incident. Once again, I am concerned that the specifics relating to this allegation were only provided at the hearing, almost three and a half years after the fact. In any event, for the reasons stated above, I am not prepared to rely upon the applicant’s evidence, which is the only evidence in support of this allegation. Accordingly, I find that I do not have sufficient reliable evidence to support the applicant’s allegation.

Allegation re “Handicap” and “Cripple” Comment

53As indicated above, the applicant alleges that when he went to the Superintendent after having been assigned the townhouse move-out and asked why this work had been assigned to him as the smell was so strong, the Superintendent responded by saying, “I don’t know why the fuck [the Manager] gave me a handicap and a cripple, you can’t do this and the other one can’t lift this”.

54The Superintendent denies making any such comment. Further, the Superintendent testified that there was no other individual working for him who had lifting restrictions. No evidence was given before me to contradict this. The comment as alleged by the applicant clearly implies that the Manager had assigned some other individual to work under the Superintendent who had lifting restrictions. The fact that there is no evidence before me to indicate that this was the case provides a further reason to doubt the credibility and reliability of the applicant’s evidence about this alleged comment.

55The applicant’s evidence is that he called his Manager and left a voicemail message for her following this alleged comment, in which he says he stated merely that the Superintendent was “acting up” without providing any specifics. As this alleged report to the Manager was not included in the particulars ordered in advance of the hearing, I ruled that I would place no reliance on this evidence.

56The applicant further states that a few days later, the Superintendent said that the applicant was a “cry baby” for having called the Manager. No such allegation was raised in the particulars filed by the applicant, and I place no reliance on this evidence.

57As previously stated, given my concerns about the credibility and reliability of the applicant’s evidence, I find that I have no sufficient reliable evidence to support the applicant’s allegation that the Superintendent made the alleged comment.

Allegation re Wanting to Fight and “Asshole Informer”

58In his particulars, the applicant alleges that he was regularly confronted by the Superintendent who wanted to engage him in a fight, and the applicant was referred to as the “asshole informer” whenever he encountered the Superintendent. In his evidence at the hearing, the applicant stated that this would happen after the Manager spoke to the Superintendent about issues raised by the applicant. The applicant states that the Manager would come out of his office and approach him in a belligerent manner like he wanted to fight and call him an “asshole informer”.

59When asked if he could provide any evidence regarding a specific occasion when this is alleged to have occurred, the applicant said that he doesn’t recall any specifics of any specific incidents when this occurred.

60The Superintendent denies engaging in any such behaviour, and states that he had no calls from the Manager regarding issues raised by the applicant and that the only meeting regarding such issues was the meeting in his office on April 24, 2007.

61Entirely apart from my concerns about the credibility and reliability of the applicant’s evidence, there is simply no evidence of any specific incidents provided by the applicant which would support this allegation. Accordingly, I find that this allegation is not supported by the evidence.

Allegations re Reporting to TCHC Management and the Union

62I already have reviewed above the applicant’s evidence regarding the allegation that he reported the Superintendent’s alleged conduct to TCHC management and the union.

63As indicated, the applicant’s initial statement was that he had reported the Superintendent’s alleged conduct to the Manager by phone on two occasions, once on the day the alleged “cocksucker” comment was made and the second time following the alleged “handicap” comment. Neither of these specific allegations of reporting to the Manager were set out in the particulars provided in response to my order. In addition, on cross-examination, for the first time the applicant alleged a third occasion when he says that he raised the alleged “cocksucker” comment at the April 24, 2007 meeting.

64As previously stated, the Manager denies these allegations and states that the only instance on which the Superintendent’s alleged conduct was raised was in relation to her call to the applicant regarding the alleged “big Black bastard” comment following the diversity training session on April 27, 2007. The Manager also denies the applicant’s allegation that he requested a meeting with the TCHC Chief Executive Officer, or that she denied him the opportunity for any such meeting. I accept the Manager’s evidence and prefer it over the applicant’s evidence for all of the reasons previously indicated.

65With regard to the union, the applicant alleges that he raised the “cocksucker” comment with Steve Sparkes. Once again, as this allegation was raised for the first time at the hearing, I ruled that I would place no reliance upon it. In any event, Mr. Sparkes testified before me that the applicant had never raised any such comment with him, and once again for all the reasons stated I prefer his evidence over that of the applicant.

66The applicant alleges that he raised the Superintendent’s conduct with Ron Johnson of the union on a number of occasions, including at a monthly union meeting. This is denied by Mr. Johnson. Again, for all the reasons stated, I prefer Mr. Johnson’s evidence over that of the applicant.

67Finally, the applicant alleges that he spoke with Ed Vergara of the union more than once and told him about the “cocksucker” comment and other vulgar words used by the Superintendent, but he doesn’t recall when these alleged conversations occurred. While Mr. Vergara was active in assisting the applicant in getting his workplace accommodation issue addressed and acknowledges having numerous discussions with the applicant about those issues, he denies that the applicant raised with him any issue about the Superintendent’s conduct or comments. Again for all the reasons stated I prefer Mr. Vergara’s evidence over that of the applicant.

68As a result, I find that I do not have sufficient reliable evidence to support that the applicant reported the Superintendent’s alleged harassment or reprisal to TCHC management or the union, or that either of these respondents failed in any duty they may have had to take reasonable steps to respond.

69Accordingly, for all of the above reasons, the Applications are dismissed.