DeFreitas v. Ontario Public Services Employees Union, 2010 HRTO 281

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bebe DeFreitas Applicant

-and-

Ontario Public Services Employees Union and Warren Thomas Respondents

INTERIM DECISION

Adjudicator: Mark Hart Date: February 8, 2010 Citation: 2010 HRTO 281 Indexed as: DeFreitas v. Ontario Public Services Employees Union

APPEARANCES BY

Bebe DeFreitas, Applicant ) Cynthia Watson, Counsel Ontario Public Services Employees Union ) and Warren “Smokey” Robinson, ) Jonathon Cocker, Counsel Respondents )

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, dated February 12, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on April 16, 2008.

2The hearing in this matter commenced on February 2, 2010 and further hearing dates have been scheduled for April 13 and 16 and May 14, 2010.

3The purpose of this Interim Decision is to confirm the rulings I made at the first day of the hearing regarding preliminary issues in relation to the scope of the matters at issue in this proceeding and the respondents’ request for removal of the personal respondents, the admissibility and relevance of certain evidence proposed by the parties, and the need for detailed witness statements. I also will address certain case management issues in relation to the conduct of this hearing.

Scope of the matters at issue in this proceeding

4At the hearing on February 2, 2010, I heard submissions from the parties regarding the scope of the matters at issue in this proceeding and made the following oral ruling:

1. With regard to the scope of the Application, section 53(5) of the Code provides that the complainant may make an application to the Tribunal “with respect to the subject-matter of the complaint”.

2. Rule 12.3 of the Tribunal’s Transitional Rules states in its relevant part that “Applications made in accordance with these Rules must be based on the subject matter of the complaint or amended complaint filed at the Commission”. While Rule 12.4 contemplates an ability to amend the complaint, this is expressly limited by the words “having regard to Rule 12.3”.

3. The Tribunal’s caselaw with respect to transition applications has held that, except in very limited circumstances, an applicant will not be permitted to raise new allegations that did not form part of the complaint or amended complaint filed at the Commission.

4. At the time she filed her Application, the applicant attached a copy of her complaint as filed at the Commission and also attached her reply to the response that had been filed by the respondents during the Commission process. The reply document provides details or particulars regarding the respondents’ response to the allegations in her complaint, but also references certain events that post-date the complaint, which is dated April 16, 2008.

5. In paragraph 14 of her reply, the applicant states that her complaint asserts that she has been subjected to reprisals because she successfully challenged OPSEU’s violations of the Code, and then proceeds to state: “Additionally, it is apparent that I am now being subjected to reprisals because I filed a human rights complaint on April 16, 2008 contrary to the protections afforded under the Code.”

6. In the ensuing paragraphs, the applicant cites several post-complaint incidents, including OPSEU’s refusal in May 2008 to engage in mediation in advance of the arbitration process because she had filed a human rights complaint (para. 15), OPSEU’s denial of a request made in July 2008 by racialized OPSEU members who are victims of hate crimes for the applicant to accompany them to mediation (paras. 16 to 20), and OPSEU’s failure in July 2008 to assign the applicant to assist OPSEU’s Workers of Colour Caucus with an issue concerning a Toronto hotel’s Caribana policy (paras. 21 to 27).

7. While the applicant did raise these allegations in material filed with the Commission, there is no evidence before me that she requested a formal amendment of her complaint, or that during the Commission process the respondents were made aware of any intention by the applicant to amend her complaint or of the specific additional allegations that the applicant sought to raise in the human rights process.

8. In addition, in the Statement of Additional Facts filed by the applicant, she raises further allegations which post-date the complaint, including that in March 2009 OPSEU refused to file a Tribunal application regarding changes to the Hospitals of Ontario Disability Income Plan, that in March 2009 OPSEU investigated a complaint against her by a member of another union, and that sometime after the filing of her complaint and allegedly in the context of her complaint the personal respondent Mr. Thomas said “the next person that calls me a racist will be fired”.

9. The applicant takes the position that these allegations form part of the subject-matter of her complaint on the basis that there are several points in her complaint where she references the discrimination and reprisals that she is experiencing as “ongoing”. In my view, absent an amendment to the complaint to set out allegations that post-date the complaint, the mere inclusion of the word “ongoing” is not sufficient to make subsequent events part of the subject-matter of the complaint within the meaning of the Code and our Rules.

10. In the Statement of Additional Facts, the applicant also raises an allegation about systemic racial discrimination in relation to supervisory appointments by OPSEU during the period from January 2008 to October 2009 and management positions over the past 15 years, and alleges that in addition to her being overlooked for all of these vacancies, she also recently was overlooked for two acting supervisor positions.

11. The applicant alleges that this forms part of the subject-matter of her complaint on the basis of the statement in paragraph 16 of her complaint that OPSEU’s hiring and promotional practices reflect systemic discrimination against employees from racialized communities. As the applicant herself is an OPSEU employee from a racialized community, it is stated that this statement in her complaint is a specific allegation that she personally has experienced discrimination as a result of OPSEU’s hiring and promotional practices. It is further asserted that any lack of clarity in this regard is attributable to the Commission’s requirement at the time that complaints be limited to two pages.

12. I do not accept these submissions. If paragraph 16 of her complaint was intended to be a specific allegation that she personally had been overlooked for promotion, this could easily have been stated with the addition of a few brief words, as she so clearly states in her Statement of Additional Facts. Rather, in my view, paragraph 16 of the complaint is a statement about the broader institutional context at OPSEU and is not an allegation about the applicant personally.

13. In contrast, paragraph 3 of the Statement of Additional Facts contains a clear allegation that the applicant was recently overlooked for two acting supervisor positions as well as for other historical vacancies. In my view, the allegation that the applicant personally was denied promotions is a new allegation that does not form part of the subject-matter of the complaint.

14. The applicant also has submitted that there was an agreement between counsel for the staff union and counsel for the respondents in the grievance process that she would not be required to file additional grievances and that all issues would be addressed before the arbitrator. In this regard, I note that grievance arbitration is a consensual process, whereas this process is a statutory process. The parties cannot agree to confer upon me statutory jurisdiction that I do not have. In any event, there is no evidence before me of any agreement by the respondents that post-complaint allegations would be considered to form part of the subject-matter of the complaint so as to fall within my jurisdiction under s. 53(5) of the Code.

15. The applicant has also argued that these post-complaint events constitute relevant evidence in relation to the allegations set out in the complaint itself, while the respondents have stated that they will be objecting to the introduction of any evidence that post-dates the complaint. In this regard, I intend to hear all evidence from the applicant regarding the allegations raised in her complaint up to the date the complaint was filed. At that time, if the applicant wishes me to hear evidence regarding post-complaint events, I will hear submissions from the parties at that time, so that my decision can be informed by the contextual framework of the applicant’s evidence.

16. As a result, my ruling is that the scope of the Application before me is limited to the allegations raised in the complaint itself, and does not extend to allegations which post-date the complaint. If the applicant wishes to pursue these other allegations, then the appropriate procedure under the current system is for her to file a new application under s. 34(1) of the Code, being mindful that this provision states that if there is a series of incidents upon which she wishes to base a new application, the last incident in the series needs to have occurred within one year of the filing of a new application. In the alternative, the applicant may choose to pursue the post-complaint allegations in the context of the grievance process, which I understand has been put on hold pending the result of this proceeding.

Removal of personal respondents

5Prior to the hearing, the respondents filed a Request for Order seeking the removal of the personal respondents as parties to this proceeding and written submissions were received from the parties on this issue. At the hearing on February 2, 2010, I made the following oral ruling on this issue:

1. With regard to the issue of the personal respondents, the applicant has indicated that she is prepared to agree to the removal of Ms. Bowman and Mr. Lavigne provided that evidence is provided that the OPSEU Board has agreed to accept vicarious liability on their behalf. In my view, it is sufficient for counsel to state in submissions filed with the Tribunal that OPSEU is prepared to accept vicarious liability on behalf of these two individuals, and no further evidence is required. These two individuals shall be removed as respondents to this proceeding and the title of proceeding shall be amended accordingly.

2. With regard to Mr. Thomas, specific allegations are made against him in the complaint, particularly that in November 2007 he said that the applicant was “playing the race card” and that in December 2007 and on February 22, 2008 and on other occasions, he made disparaging and demeaning comments about the applicant. In my view, these specific allegations are sufficient at this stage of the proceeding to warrant Mr. Thomas’ continued participation as a personal respondent.

Case Management

6The applicant proposes to call several witnesses about systemic issues arising within the union respondent and from the union respondent’s employment practices, and about the impact of these practices on members of racialized communities. While I do not preclude the potential relevance of such evidence at some stage of this proceeding, the difficulty I am having with this proposed evidence is in assessing the extent of its potential relevance in the absence of first having heard evidence regarding the allegations at issue in this proceeding as set out in my Case Assessment Direction dated January 22, 2010.

7Pursuant to Rule 11.1 of the Transitional Rules, which incorporates Rule 1.7(j) of the Rules that apply to applications filed under s. 34 of the Code, I have the power to determine and direct the order in which evidence will be presented. I am considering exercising this power to direct all parties first to present all of their evidence that bears directly upon the events giving rise to the allegations at issue in the proceeding. It is my expectation that I would be able to hear all of this evidence, from both the applicant and the respondents, during the three hearing days that are scheduled. Having heard all of this evidence, it is my view that I then would have a better evidentiary context in which to consider the potential relevance of the broader systemic evidence that the applicant proposes to call.

8Before deciding whether to exercise this power, I wish to invite submissions from the parties on this matter, which shall be served and filed by no later than February 26, 2010.

Witnesses and witness statements

Applicant’s proposed witnesses

9While not listed on the list of proposed witnesses submitted by the applicant, the applicant herself intends to testify in this proceeding. The applicant shall provide a detailed statement setting out all of the evidence that she proposes to give in this proceeding. I would like this statement to be divided between evidence that she believes directly bears upon the events giving rise to the allegations at issue in the proceeding, and any further evidence she proposes to give regarding systemic discrimination or institutional practices at the union respondent. I would like this statement to be in point form, with each point delineated by a number, and to the extent possible with a separate point for each discrete piece of evidence.

10With regard to Tim Brown, the applicant shall provide a detailed witness statement setting out all of the evidence proposed to be elicited from Mr. Brown at the hearing, in the form indicated above for the applicant’s statement and divided between evidence that directly bears upon the events giving rise to the allegations and evidence regarding systemic discrimination or institutional practices at the union respondent.

11With regard to Glenna Caldwell, the applicant shall provide a detailed witness statement setting out all of the evidence proposed to be elicited from Mr. Brown at the hearing, in the form indicated above for the applicant’s statement. Within one week from receipt of this witness statement, the respondents shall advise the applicant and the Tribunal as to what evidence in this witness statement they can stipulate to.

12With regard to Mary Ellen Cassey, Jim Gilbert and Stephen Giles, the applicant shall provide a detailed witness statement setting out all of the evidence proposed to be elicited from each of these witnesses at the hearing, in the form indicated above for the applicant’s statement. These statements shall include a description of the nature of the complaint made, when the complaint was made, and whether the person against whom the complaint was made was suspended from work or subjected to an investigation. Within one week from receipt of this witness statement, the respondents shall advise the applicant and the Tribunal as to what evidence in this witness statement they can stipulate to.

13With regard to Grace Edward Galabuzi, the applicant proposed to call Mr. Galabuzi as an expert witness regarding systemic/institutional discrimination, racism and the impact on racialized persons. No expert report was provided to the respondents or to the Tribunal. On the basis of the broad description of Mr. Galabuzi’s proposed evidence, I ruled that this evidence would not be helpful to me as the adjudicator and that I would not hear from Mr. Galabuzi.

14With regard to Roger Haley, the applicant shall provide a detailed witness statement setting out all of the evidence proposed to be elicited from Mr. Haley at the hearing, in the form indicated above for the applicant’s statement and divided between evidence that directly bears upon the events giving rise to the allegations and evidence regarding systemic discrimination or institutional practices at the union respondent.

15With regard to Beverly Johnson, I ruled that her evidence was not relevant to this proceeding as her tenure as Human Rights Officer at the union respondent preceded the applicant’s tenure in this position and the events giving rise to this application and was too far removed from the matters at issue.

16With regard to Colleen LaRose, her proposed evidence relates specifically to her involvement in systemic and anti-racism work in her workplace, her efforts to obtain support from the union respondent, and the impact of the union respondent’s actions on her. In relation to this and other evidence proposed to be called by the applicant, I expressed concern about the hearing being drawn into collateral issues relating to specific individuals other than the applicant. While similar fact evidence of this nature is admissible in certain limited circumstances, this proposed evidence was not put forward as similar fact evidence and there is an insufficient basis in the material filed to support its admissibility as similar fact evidence. I ruled that I would not hear evidence from this witness.

17With regard to Gord Longhi, the applicant shall provide a detailed witness statement setting out all of the evidence proposed to be elicited from Mr. Longhi at the hearing, in the form indicated above for the applicant’s statement and divided between evidence that directly bears upon the events giving rise to the allegations and evidence regarding systemic discrimination or institutional practices at the union respondent. For the same reasons expressed in relation to Ms. LaRose’s proposed evidence, I ruled that I will not hear from Mr. Longhi regarding his knowledge of events relating to the termination of a specific employee named Deb Tugnatt.

18With regard to Twila Marston, the applicant shall provide a detailed witness statement setting out all of the evidence proposed to be elicited from Ms. Marston at the hearing, in the form indicated above for the applicant’s statement.

19With regard to Charlene Tardiel, the applicant shall provide a detailed witness statement setting out all of the evidence proposed to be elicited from Ms. Tardiel at the hearing, in the form indicated above for the applicant’s statement and divided between evidence that directly bears upon the events giving rise to the allegations and evidence regarding systemic discrimination or institutional practices at the union respondent. For the same reasons expressed in relation to Ms. LaRose’s proposed evidence, I ruled that I will not hear from Ms. Tardiel regarding her personal experience of alleged reprisals by the union respondent or her knowledge of events relating to the termination of Ms. Tugnatt.

20With regard to Barb Thomas, the applicant shall provide a detailed witness statement setting out all of the evidence proposed to be elicited from Ms. Thomas at the hearing, in the form indicated above for the applicant’s statement.

21With regard to Peter Thompson, I ruled that his evidence was not relevant to this proceeding as it relates to the issue of the Caribana policy that I determined was not within the scope of the allegations at issue in this proceeding.

22The applicant shall serve and file the detailed witness statements as set out above by no later than February 26, 2010.

Respondents’ witnesses

23The respondents shall provide detailed witness statements setting out all of the evidence that each witness proposes to give in this proceeding, in point form, with each point delineated by a number, and to the extent possible with a separate point for each discrete piece of evidence, for the each of the following witnesses: Catherine Bowman, Pam Doig, Bob Eaton, Ron Lavigne, Derek Miller, Jeanne Theriault and Warren Thomas.

24With regard to Audrey Williams, the respondents shall provide a detailed witness statement setting out all of the evidence proposed to be elicited from Ms. Williams at the hearing, in the form indicated above. Within one week from receipt of this witness statement, the applicant shall advise the respondents and the Tribunal as to what evidence in this witness statement she can stipulate to.

25With regard to Alex Poole, the respondents shall provide a detailed witness statement setting out all of the evidence proposed to be elicited from Mr. Poole at the hearing, in the form indicated above. However, it is not necessary for Mr. Poole to give general evidence regarding his investigation or the contents of his report, except to the extent that it bears directly upon an allegation at issue in this proceeding.

26I confirm that all other witnesses set out on the respondents’ list of proposed witnesses have been withdrawn.

27The respondents shall serve and file the detailed witness statements as set out above by no later than February 26, 2010.

28It is understood that if there are matters raised in the witness statements filed by any of the parties that could not reasonably have been anticipated, either party may seek leave to adduce further evidence to respond to such unanticipated matters.