HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Zenon Macyshyn
Applicant
-and-
Toronto Catholic District School Board
Respondent
A N D B E T W E E N:
Zenon Macyshyn
Applicant
-and-
13 other Respondents listed on Schedule "A"
Respondents
INTERIM DECISION
Adjudicator: Faisal Bhabha
Indexed as: Macyshyn v. Toronto Catholic District School Board
APPEARANCES
Zenon Macyshyn, Applicant ) Self-represented
Toronto District Catholic ) Paul Matthews, Counsel School Board, Respondent )
13 Other Respondents: See Schedule "A" attached
1These are 14 separate Applications filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). In a Case Assessment Direction dated May 28, 2010, the Tribunal directed that a joint summary hearing be held to determine whether the applicant's allegations in respect of any or all of the respondents have no reasonable prospect of success. In addition, there were preliminary issues of delay. None of the respondents were required to file complete Responses or produce any documents.
2On February 17, 2011, an in-person, joint summary hearing was held. All of the respondents attended and each made submissions in response to the applicant's various claims of discrimination.
3Although the Applications were all heard together for the purpose of the summary hearing, there is little overlap in the facts other than the identity of the applicant. The Applications cover a wide array of alleged incidents mostly between 2007 and 2010, in which the applicant alleges that he was discriminated against by former and prospective employers, the police, a school board, a university, the government and his landlord on various grounds of race, colour, place of origin, ethnic origin, disability, family status, marital status, age and receipt of public assistance. The applicant self-identifies as a single, white, male Canadian citizen of Polish ethnic origin, with a learning disability and possible other unspecified disabilities.
4I will briefly outline, in each case, the applicant's allegations, the respondent's position, and the reasons for my decision. First, I will deal with the three Applications that involve preliminary issues of delay. Following that will be the remaining Applications in no particular order.
Optima
5The applicant worked for the respondent company for just over a year, from January 2007 until February 2008. He was re-hired on April 28, 2008, attended two days of training and then did not attend again at the workplace. The applicant alleges that he missed a day of training due to medical reasons and had no success re-scheduling it. He believes that a respondent manager deliberately did not assist him with continuing his training due to his race and ethnic origin. The applicant believes the manager to be Polish, like the applicant, and assumes that she disliked him for that reason. However, the applicant admits that he did not contact the respondent after missing the day of training.
6The respondent confirms that its records will show that the applicant failed to attend training on April 30, 2008, and that there was no further contact until January 2010, when the applicant enquired about full-time employment.
7I heard submissions on the issue of delay, given that the Application was filed on March 24, 2010, nearly two years after the date of the last alleged discriminatory incident.
8Section 34 of the Code provides as follows:
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.
9The Tribunal will not deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that the circumstances in section 34(2) exist. The applicant asserts that in the time after April 2008, he was busy dealing with legal and medical issues, as well as attending to his mother's funeral, the death of his aunt in Saskatchewan and legal matters in Poland. He stated that he knew he had a case, but did not have the time or resources to take action.
10The Tribunal's jurisprudence is clear and consistent that absent extraordinary or clear Code-based circumstances, being stressed or busy does not satisfy the good faith requirement (see Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424; Quimado v. S.A. Armstrong, 2009 HRTO 110; Dwyer v. Chrysler Canada, 2009 HRTO 247).
11In the circumstances, I am not satisfied that the applicant has demonstrated that the delay in bringing this Application was incurred in good faith. The Application against Optima is dismissed.
Homestarts of 91 Spencer Ave Cooperative
12The respondent company manages the building where the applicant resides. The Application concerns allegations against an individual manager of the building. The applicant states, "I have no idea why she really hated my mother and I", and accuses her of "trying to get us out because of our Polish ancestry."
13The allegations date back to more than three years prior to the date of the Application, which was filed on October 27, 2010. The applicant relied on difficult personal circumstances, including deaths in his family, time spent in prison and employment insecurity, as factors demonstrating his "good faith" for the purposes of section 34(2) of the Code. The respondent opposed any extension of time in the circumstances, which included issues going back nearly 15 years in all.
14The factors regarding delay are set out above. The circumstances cited by the applicant for waiting three years before bringing the Application do not satisfy the requirements of section 34(2). The applicant was clear that all of his allegations relate to a particular manager who left the building in late 2007. The applicant was aware of the alleged Code breach yet took no action due to difficult personal circumstances. These circumstances, however, do not amount to extraordinary or clear Code-based circumstances that would have prevented the applicant from exercising his rights under the Code. Only truly extraordinary circumstances will warrant extending the limitation period. The Application against Homestarts is dismissed.
Ryerson University
15The applicant makes numerous allegations against the respondent university, which he attended from 2001 to 2007. The bulk of his allegations relate to this period, which is well beyond the one-year time limit for bringing this Application, which was filed on March 24, 2010.
16The applicant admitted that he never had any intention of filing an Application against the university. He stated that it was only after some years' reflection that he became convinced that Ryerson had mistreated him. This is not a plausible explanation for filing an Application well beyond the limitation period, and does not fall within the requirements of section 34 of the Code. As described above, the time limit for filing the Application will only be extended if the applicant can demonstrate "good faith", which he has failed to do. The allegations relating to the period in which the applicant was a student at Ryerson are dismissed for delay.
17There is one allegation against Ryerson, which is not time barred and which requires a decision as to whether it can proceed to a hearing. The applicant alleges that on April 18, 2009 he received a trespass notice by Ryerson security, during the course of which security guards made derogatory remarks about him, implying negative stereotyping about his mental health. As a result of the notice, the applicant claims that he is banned from Ryerson for life.
18The applicant does not allege that the April 2009 event was part of a "series of incidents" stemming from his time as a student at Ryerson. Under section 34(1)(b), if incidents which, taken on their own, are out of time, but are part of a series of allegedly discriminatory incidents, then the issues arising out of the entire series will be permitted to proceed to a hearing. In this case, it is clear from the pleadings that the April 2009 incident is not alleged to have been connected to any of the previous alleged incidents and was separated by nearly two years in time.
19The respondent emphasized that the events of April 2009 had nothing to do with the applicant's time at Ryerson as a student, but was rather an isolated incident nearly two years after completing his studies. Security officers will testify that the applicant approached them with a "warning" that "something is going to happen". The evidence of security officers will be that the applicant hypothesized about bomb risks on campus, reviewing security scenarios with the guards, and asked that they not tell the university president. The applicant allegedly told security that he was also warning another university and hospital. The respondent submits that the security officers had reasonable suspicion that the applicant was laying out a plan to bomb the university. Police were called in to investigate, and the applicant was issued with the trespass ban, which the respondent argues was entirely reasonable in the circumstances.
20Regarding the allegedly discriminatory comments, the university indicated that the security officers will testify that they made enquiries about the applicant's mental health and that he disclosed to them that he is schizophrenic and is medicated. They asked if he was a patient at the Centre for Additions and Mental Health (CAMH), to which they will testify the applicant responded "only on the first floor", and provided a pink release paper showing that he had refused to be admitted to the hospital. The officers will testify that they asked reasonable and necessary questions in the circumstances and did not make any derogatory or discriminatory statements regarding the applicant's mental health.
21The applicant did not provide any alternative account of what happened on April 19, 2009. He stated that he could not remember details of the exchange, only that the officers made "derogatory" remarks. Although the applicant's allegations lack particulars, I am not convinced that they bear no reasonable prospect of success. The Tribunal has stated that the test is whether, "assuming all the allegations in the application to be true, it has a reasonable prospect of success", or "whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated" (see Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-9).
22The applicant's position is that the treatment and the consequences, namely the trespass ban, were based on discriminatory considerations and were accompanied by discriminatory slurs. The parties will have an opportunity to give evidence on this point and credibility assessments will need to be made to establish what happened.
23In order to proceed to a hearing regarding the incident of April 18, 2009, it is necessary for the applicant to provide more details about the alleged discrimination so the respondent can fully respond. The applicant shall file particulars providing a detailed description of the incident with security, following which the respondent shall file a Response to that issue alone.
Toronto District Catholic School Board
24The applicant makes two principal allegations of discrimination against the respondent school board. First, he alleges that when he was enquiring about returning to complete high school, which he had left in or around 2001, staff at his home high school made inappropriate comments about his age and marital status in questioning him about his desire to return to school as an adult. He alleges that this incident occurred on February 23, 2010.
25The applicant was admitted to school and enrolled in two night courses. The second basis for his claim of discrimination is with respect to requests for accommodation, which he alleges were denied. Specifically, he claims that he asked for extra time on tests, one-on-one instruction with the teacher after class, and a private tutor. He asserts that he did not get anything that he asked for, and instead was told he must obtain an Individual Education Plan ("IEP") in order to be provided with accommodations. He claims that his home high school would not assist him in getting an IEP and that he was therefore denied accommodations. He further argues that the school board directed him to drop the night school courses and take online courses through the school board, which the applicant refused on the basis that he is a visual learner and requires in-person instruction.
26The school board takes the position that any questions about age would be entirely appropriate given the statutory duties of school executives. Counsel further asserted that an IEP is always done where a student has a learning disability or any special requirement, either at the suggestion of the school or at the request of the student or parent. According to counsel, there was nothing improper, on its face, about the respondent's conduct as alleged by the applicant.
27I find that there is no reasonable prospect of success for the applicant's claims with respect to the "inappropriate comments" about his age and marital status and this portion of the Application is dismissed accordingly. He provided little detail about what was actually said, and it appears likely that he simply did not like the fact that he was asked about his age, which, in the context of seeking re-admission to public school education, is not prima facie discrimination in and of itself.
28I find that the applicant's claim that the school and/or school board failed to assist with developing an IEP should not be dismissed as having no reasonable prospect of success. Again, however, the problem is that the applicant has provided insufficient detail in his Application for the respondent to make a meaningful response to the allegation. The applicant shall file particulars with respect to the allegation that he was denied the benefit of an IEP, following which the respondent shall file a Response to that issue.
Ministry of Municipal Affairs and Housing
29The applicant's allegations in this Application against the Province amount to a challenge to the rules for qualifying for a publicly-funded housing subsidy. The alleged differential treatment is based on income—if the applicant earns more than $2,800 a month, he claims that he will lose his housing subsidy. Not only is this allegation not based on a Code ground, but it is also not clear that the applicant has been adversely affected by the policy and is therefore speculative. There is no reasonable prospect that these allegations could succeed at a hearing and the Application is therefore dismissed.
Metroland – Toronto Community News
30The applicant worked for the Toronto Community News from around 1997 until 2010 delivering the "Saver Bag", a collection of flyers. He also delivered the newspaper for around one and a half years. The applicant alleges that his manager refused to accommodate his request for time off on two occasions when he required hospitalization, and that his employment was then terminated. The respondent argues that the applicant failed to give notice of his need for time off on both occasions, which led to disruptions in delivery and wasted product. The respondent takes the position that the applicant's behaviour amounted to legitimate grounds for termination.
31It is clear that there are disputed facts. It is not clear, in the absence of evidence, that the applicant's allegation that he was denied accommodation and discriminatorily terminated from employment with the respondent has no reasonable prospect of success.
Toronto Police Service and Police Services Board
32The allegations against the Toronto Police Service and Police Services Board stem from an incident in June 2009 in which the applicant claims he was arrested and charged by police while walking on Yonge Street in downtown Toronto. He alleges that in the course of the interaction, police acted in a brutal manner, beating him, wrestling him to the ground and dragging him through the street, while using slurs about the applicant's ancestry, colour, age, family status, marital status and disability.
33The applicant was unable to provide any factual detail about the incident other than these basic claims. He states that his health was poor at the time and his memory of the incident is unclear. In the absence of further information about the time of the alleged incident or indicators of the identity of the officers involved, it is not possible for the respondents to respond to the allegations and there is no reasonable prospect that the allegations could succeed at a hearing. The Application is therefore dismissed.
TNT Overland Express
34The applicant alleges that he was denied employment with the respondent on discriminatory grounds. In the Application, he pleaded race and ethnic origin, but at the summary hearing, he changed the alleged ground to disability.
35The basic facts are not in dispute. The applicant applied for a job and was directed to an online typing test, which he passed. He was invited to an interview, where he failed an in-person typing test. The respondent urged him to improve his typing and to re-apply. There was no further communication between the parties. The applicant did not self-identify as having any disability-related needs or ask for any accommodations on the in-person test.
36On the basis of these facts, there is no reasonable prospect that the applicant could succeed in establishing a breach of the Code at a hearing and this Application is therefore dismissed
Tim Hortons
37The applicant alleges that in the course of his one-week employment with the respondent he was denied the working hours that he desired on the basis of his race and ethnic origin. The basis for his allegation of discriminatory treatment is that employees of other ethnic origins seemed satisfied with their jobs. The applicant provided no additional particulars, and indeed was unable to cite any specific comparative facts to illustrate his claim of differential treatment on the basis of ethnicity. There is no indication that the respondent was aware of the applicant's Polish ancestry. The respondent indicated that its evidence would show that the applicant was hired for full-time evenings, and upon hire requested changes to his schedule, and then he quit after just seven shifts.
38The applicant has failed to allege any facts that would lead to a finding that the respondent breached the Code. There is therefore no reasonable prospect that the applicant's allegations could succeed at a hearing and this Application is therefore dismissed.
Swiss Chalet
39The applicant worked for the respondent from May 2008 until early 2010. He alleges that he was treated differently on the basis of his white, Polish identity. In or around November 2009, the applicant claims he requested vacation in order to travel to Poland. He alleges that when he returned from his vacation, he learned that he had been dismissed on the basis that he had failed to inform his managers of his absence. After union intervention, there is no disagreement that the respondent agreed to return the applicant to work.
40It appears that the only basis for the applicant's claim of discrimination is that the termination of employment was caused by racial and place-of-origin factors. He claims that another employee, a black African, who was in the same situation did not lose his job and was permitted to take a vacation to visit his family in Africa. The applicant states that the differential treatment must be because he is white, Polish and younger than the other individual.
41It appears that the parties already addressed the issue of the applicant's vacation and seem to have agreed that there was a misunderstanding that was later remedied. The applicant has provided no support for his claim of discriminatory treatment other than suspicions about racial motivations. Based on what was described, I do not see a reasonable prospect that the applicant could succeed in proving these allegations at a hearing and the Application is therefore dismissed.
SSP Canada
42The respondent manages Tim Hortons at Pearson International Airport. In January 2010, the applicant interviewed unsuccessfully for a job. Subsequently, while at a job fair, he saw an advertisement for a position at the same location. He alleges that an employee of the respondent told him that he could not submit a resume within six months of a previous application. The applicant states that he then phoned the corporate head office and was told that no such policy exists. On the basis of this information, the applicant alleges that he must have been denied the opportunity to submit a second application on the basis of his age and ethnic origin.
43The applicant did not point to any evidence whatsoever to confirm his belief. He argued that discrimination could be inferred from the facts: the company needed staff but did not hire the applicant. The only conclusion he alleges one can draw from this is that the denial of employment must have been related to his age and ethnicity.
44An Application must lay out more than mere suspicions. Allegations must include specific facts that, if proven, could reasonably give rise to a finding of discrimination. The applicant's allegations are based only on his subjective perceptions and suspicions, without any objective facts to support those suspicions. There is no reasonable prospect that the applicant could prove these allegations at a hearing and this Application is therefore dismissed.
McDonald's
45The applicant has been a part-time employee of the respondent since April 2008. He alleges that he has been discriminatorily denied full-time hours on the basis of his colour. He bases this allegation on the fact that newer employees, such as an "Asian girl" and an "African guy" asked for full-time hours and got it. Meanwhile, the applicant has asked for full-time hours but was told that he is not eligible because he is a part-time employee.
46The respondent's position is that the applicant was hired as a part-time employee, worked as such for two years and then "suddenly" began asking for more hours, which are not available. It argues that the applicant is not entitled to more hours as a part-time employee, and doubts whether he would be available for more hours in any event given the fact that the applicant has held, and continues to apply for, numerous other jobs. Its evidence will be that the company's scheduling practices have nothing to do with the race or colour of its employees, but rather with each employee's status as either a full-time or part-time employee.
47The applicant has not alleged that he was discriminated against in a job competition; there is no claim that he ever applied for a full-time position. Rather, he is claiming an entitlement to full-time hours based on his assessment that he is a hard worker and good performer, despite the fact that his position is defined as part-time. The link he draws to race and colour is based entirely on his assumptions about others' motives. There is no basis for drawing the inferences submitted by the applicant in order to find discrimination, even assuming the facts as pleaded to be true. I am satisfied that this Application has no reasonable prospect of success and is therefore dismissed.
Longo's
48The applicant worked for the respondent for a short period of time. He stated that he "knew it wouldn't work out" for him when he requested a transfer and was denied. As in many of his other employment relationships, the applicant did not agree with his employer's scheduling practices and concluded in his mind that it must have had something to do with being white and of Polish origin. There are no facts alleged that would support the conclusions the applicant wishes the Tribunal to draw at a hearing. The Application therefore has no reasonable prospect of success and it is therefore dismissed.
Holy Cross Cemetery
49The applicant's mother died on February 11, 2008. She was interred on April 19, 2008. The applicant paid for the burial and ordered a headstone. He alleges that two years passed when he enquired about the headstone and was told that management had left and were not able to complete it on time. The applicant believed that this explanation lacked credibility, and concluded that it must be discriminatory. He demanded that his payment be refunded, and the respondent complied. According to the respondent, the erection of the monument began in October 2008, with the pouring of foundation.
50When the applicant enquired in the summer of 2009, he indicates that the respondent informed him that the work was still in progress. The applicant concluded that the only explanation for the lengthy delay could be the fact that his mother was white and Polish. He alleges that "people of different ages and races get what they pay for, and I don't."
51The applicant has not pleaded any facts that could establish this broad claim of differential treatment. The Application must at least contain sufficient facts that, if accepted as true could reasonably lead to a finding of discrimination. The applicant has provided none. There is therefore no reasonable prospect that this allegation can succeed at a hearing and it is dismissed.
Order
52In the light of the above conclusions, the Tribunal orders as follows:
The Applications in file numbers 2010-05266-I [Optima] and 2010-07234-I [Homestarts] are dismissed for delay.
1 The Application in file number 2010-05264-I [Ryerson] is dismissed for delay with the exception of the allegation relating to the incident of April 19, 2009 involving an interaction between the applicant and security staff of the respondent. The applicant shall deliver to the respondent and file with the Tribunal particulars by no later than two weeks from the date of this Interim Decision explaining how and why he believes the treatment he received from the respondent on April 19, 2009 was based on discriminatory considerations. The respondent shall file a full Response on the merits of this allegation, and on the particulars if it wishes, within 30 days of receiving the particulars.
2 The Application in file number 2010-04931-I [TCDSB] shall proceed, with the exception of the portion of the Application relating to allegations of inappropriate comments about the Applicant's age and marital status in the context of the Applicant's enquiries regarding his desire to return to school as an adult. For the reasons above, this portion of the Application is dismissed as having no reasonable prospect of success. Before a hearing is scheduled, the applicant shall provide particulars with respect to when, how and why he believes he was denied the benefit of an IEP by the respondent and how that relates to the Code. The applicant's particulars are due by no later than two weeks from the date of this Interim Decision. The respondent shall provide a Response on the merits of this allegation, and on the particulars if it wishes, within 30 days of receiving the applicant's particulars.
3 The Application in file number 2010-05240-I [Metroland] may proceed. The respondent shall provide a full Response within 30 days of the date of this Interim Decision.
4 These Applications are not formally consolidated and will not be heard together.
5 The remaining Applications in Tribunal files:
2010-05239-I [Ministry of Municipal Affairs and Housing];
2010-05254-I [TNT Express];
2010-05251-I [Toronto Police Service and Toronto Police Services Board];
2010-05262-I [SSP Canada];
2010-05255-I [Tim Hortons];
2010-05259-I [Swiss Chalet];
2010-05267-I [McDonalds];
2010-05268-I [Longo Brothers Fruit Markets Inc.]; and
2010-07235-I [Holy Cross Cemetery]
are dismissed for failing to have a reasonable prospect of success at a hearing.
53I am not seized of this matter.
Dated at Toronto, this 3rd day of June, 2011.
"Signed by"
Faisal Bhabha
Vice-chair
SCHEDULE "A"
File No. Respondent
2010-05240-I Toronto Community News
Self-represented
2010-05254-I TNT Express
Self-represented
2010-05255-I Tim Hortons
Self-represented
2010-05259-I Swiss Chalet-Cara Operations Ltd.
Self-represented
2010-05266-I Optima Communications International Ltd.
Self-represented
2010-05239-I Ministry of Municipal Affairs and Housing
Mark Armitage, Articling Student
2010-05251-I Toronto Police Service and Toronto Police Services Board
Naomi Calla, Counsel; David Gourlay, Counsel
2010-05262-I SSP Canada
Hugh Dyer, Counsel
2010-05264-I Ryerson University
Laurie Reesor, Counsel
2010-05267-I McDonalds
Robert Bell, Counsel
2010-05268-I Longo Brothers Fruit Markets Inc.
Paul Wearing, Counsel
2010-07235-I Holy Cross Cemetery
Patrick Greco, Counsel
2010-07234-I Homestarts of 91 Spencer Ave Cooperative
Luke Saites, Counsel