Delov v. Toronto Police Services Board, 2010 HRTO 404

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nikola Delov

Applicant

-and-

Toronto Police Services Board, Norm Henderson, Roy Pilkington and Paul Scudds

Respondents

DECISION

Adjudicator: Kaye Joachim

Date: February 22, 2010

Citation: 2010 HRTO 404

Indexed as: Delov v. Toronto Police Services Board

APPEARANCES

Nikola Delov, Applicant ) Georgina C. Watts, Counsel

Toronto Police Services Board, ) Norm Henderson, Roy Pilkington, ) Sharmila M. Clark, Counsel Paul Scudds, Respondents )

1This Decision addresses the respondents’ Request for an Order during Proceeding seeking early dismissal because of delay, settlement, no prima facie case and pursuant to s. 45.1 of the Ontario Human Rights Code R.S.O. 1990, c. H.19, as amended, (the “Code”) on the basis that the substance of the Application has been appropriately dealt with in other proceedings.

2A hearing was held on January 13, 2010 to hear the parties’ evidence and submissions on the request for early dismissal.

3The Application in this matter was filed on April 7, 2009. It relates to a complaint filed with the Ontario Human Rights Commission on September 21, 2007 alleging discrimination in employment on basis of citizenship, ethnic origin, place of origin, record of offences, breach of settlement and reprisal.

4The applicant self identifies as a Canadian citizen and Macedonian by birth. He was hired by the respondent Toronto Police Services (the “TPS”) in 1976 as an automotive mechanic. He rose through the ranks to become the Manager of Shop Operations.

5The applicant alleges that in 2001 he was involved in a review of fleet management which had the potential to seriously embarrass his supervisor and other individuals. As a consequence of his criticisms of various individuals during this review, he alleges that he was targeted by the respondents on numerous occasions. The form of the targeting was to harass him on the basis of his ethic and immigrant background. For example he alleged that he was called a dumb immigrant and a stupid foreigner. He also alleges that he was treated differently than other employees of similar rank when he ran afoul of the law in his dealings with his former spouse. His employment was terminated effective September 2004.

6Before his termination, the applicant was disciplined on several occasions. He received a three week suspension for allegedly asking a colleague to open his wife’s mail. He filed a grievance with respect to this matter. He was subsequently disciplined with a one day suspension for unauthorized use of the TPS computer. He did not grieve this discipline. The applicant was charged on September 11, 2003 with two counts of criminal harassment and one count of threatening death. The victim was the applicant’s ex-spouse. He was suspended and he filed a grievance. The applicant, the association and the TPS entered into a settlement to preserve his employment. He was demoted to the position of Marine Unit Mechanic and agreed to retire in 2009.

7On July 25, 2004 the applicant was charged with a criminal offence. The TPS terminated the applicant’s employment as a result of this charge.

8The applicant was now represented by the Toronto Police Association (“TPA”) who filed a grievance on his behalf. The grievance proceeded to arbitration before an experienced arbitrator and the TPA was represented by experienced counsel. The arbitration proceedings took place over six days from June 21, 2006 to June 21, 2007. The TPA called the applicant’s medical practitioner and challenged the alleged misconduct and also offered an explanation for the alleged misconduct.

9The arbitrator found that the applicant was not suffering from any mental incapacity to appreciate the consequences of his actions when he committed the criminal offence in 2004. The arbitrator concluded that the TPS had established just cause for discipline. He also found that the applicant had not demonstrated that he had put his personal problems with his ex-wife behind him and that therefore reinstatement was not appropriate. The arbitrator did not address any alleged harassment and discrimination as those matters were not raised before him.

SETTLEMENT

10In December 2003 the applicant signed Minutes of Settlement regarding the two disciplinary grievances referred to above.

11The applicant testified that at that time he was devastated by the breakdown of his marriage of 30 years, his economic situation (out of work without pay) and that he signed the agreement without even reading it.

12The Tribunal has held that it is an abuse of the Tribunal’s process to permit an applicant to raise allegations of discrimination following a settlement, absent exceptional circumstances. I am not satisfied that the applicant did not understand the significance of the settlement. Despite the distressing life circumstances he retained lawyer and relying upon the advice of the lawyer, signed a settlement.

13Therefore, I hold that it would be an abuse of process for the applicant to raise the 2003 discipline as a form of discrimination, when he specifically settled those matters.

14I accept that the applicant did not file a grievance about the alleged harassment prior to the settlement and therefore the settlement does not preclude him raising those allegations. However, these allegations will be dealt with under the topic of delay.

SECTION 45.1

15Section 45.1 of the Code provides as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

16In the arbitration proceeding, the applicant did not raise the alleged ethnic origin harassment and alleged discriminatory dismissal. I am not prepared to find that the arbitration proceeding appropriately dealt with the allegations of discrimination raised in the Application.

ABUSE OF PROCESS

17It has been held that in some cases it may amount to an abuse of process to fail to raise glaring examples of harassment and discrimination in an arbitration proceed and then raise them immediately after the arbitration decision is issued: Asmiah.

18The applicant testified that he did raise these matters with the Union and was prevented by them from raising any evidence of discrimination. This testimony is inherently improbable. I find that the applicant’s evidence is not credible and persuasive. Despite his insistence that he squarely raised the issue with his union and counsel and they refused to raise it, he called no one from the union or his former counsel to confirm this. This would have been the best evidence to support his position and the failure to call the best evidence leads me to draw the inference that their evidence would not have been supportive of his position.

19I conclude that the applicant did not raise the allegations of discrimination with his union or to his employer prior to 2007 and that it would be an abuse of the Tribunal’s proceeding to permit him to raise them at this stage.

DELAY

20In the alternative, I find that the Application is out of time. The applicant alleges he was harassed from 2001 to 2004 and dismissed in 2004. He filed the present Application in 2007, more than three years after the last event.

34.(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

21With respect to the pre-2003 harassment, the applicant offered no explanation why he did not file a grievance about this matter or raise them with the Ontario Human Rights Commission (“Commission”). The applicant testified that he contacted the Commission perhaps as early as 2000 and was advised to keep notes of the alleged harassment.

22The applicant testified that he provided all notes on harassment to the TPA after he was fired in 2004 but that the TPA counsel decided not to raise those allegations. He was advised not to mention these allegations in his evidence at the hearing. For the reasons described above, I do not accept the applicant’s evidence on this point.

23The applicant also testified that he contacted the Commission who advised him to wait until the arbitration procedure was finished before contacting the Commisison.

24If the applicant understood that the TPA would not be raising his discrimination issues, it is not credible that he did not file a complaint with the Commisison at this time, rather than waiting for the arbitration. He knew throughout the arbitration process that the arbitration decision would not address the alleged harassment or discriminatory nature of the termination.

25I find that the delay of three years from the date of termination was not incurred n good faith.

26The Application is dismissed.