HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mark Gernon
Complainant
-and-
Toronto Police Services Board and Maureen Carey
Respondents
DECISION
Adjudicator: Brian Eyolfson
Indexed As: Gernon v. Toronto Police Services Board
APPEARANCES
Mark Gernon, Complainant ) Vusumzi Msi, Counsel
Toronto Police Services Board and ) Heather Crisp, Counsel Maureen Carey, Respondents )
INTRODUCTION
1The complainant, Mark Gernon, filed a Complaint with the Ontario Human Rights Commission (the "Commission"), dated December 3, 2004, alleging that he was subjected to discrimination on the basis of race, colour and sex in employment, and reprisal, contrary to sections 5(1), 8 and 9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). By letter dated April 30, 2007, the Commission referred the subject matter of the Complaint, as it relates to the issue of reprisal only, to the Tribunal.
The parties' positions
2In his pleadings, the complainant explains that he is a member of the Toronto Police Auxiliary (the "TPA"), a volunteer organization. In 2003, he applied for a position as a regular member of the Toronto Police Service (the "TPS"). He alleges that he was later told by a police officer assigned to his application file that factors that went against his application included his status as a white male. He alleges that he was then subjected to a reprisal when he was "permanently screened out" of the employment process after he made a complaint of discrimination.
3The respondents deny that the complainant was subjected to reprisal. They submit that the decision to permanently screen out the complainant was based on reasonable grounds related to his application, the recommendation of an Inspector in the Employment Unit (the "EU") who reviewed his application file, and his own request for a "bottom line" decision.
Requests for orders during proceedings
4In an earlier Interim Decision, 2009 HRTO 83, the Tribunal addressed the complainant's request for production. On a conference call with the parties on February 26, 2009, the Commission's request to withdraw from participation in the proceeding was allowed. On August 13, 2009, upon completion of the complainant's evidence, the respondents brought a request to dismiss the Complaint on the basis that the complainant had not demonstrated a prima facie case of reprisal. In a second Interim Decision, 2009 HRTO 1518, the Tribunal denied the respondents' request to dismiss the Complaint. This Decision deals with the merits of the Complaint.
EVIDENCE
Witnesses
5The complainant and the individual respondent, Maureen Carey, gave evidence at the hearing. In addition, the following witnesses testified on behalf of the respondents: Staff Inspector Peter Lennox, Sergeant James Hogan, and Staff Inspector Deborah Preston. Inspector Leonard Faul testified on behalf of the complainant, in reply.
Background
6The respondents have indicated that they do not dispute the following facts set out in the complainant's pleadings:
Potential candidates as police constables are required to first undergo and pass a battery of written aptitude and physical fitness tests. Upon successful completion of those tests, candidates are issued certificates which qualify them to submit applications to the TPS, which is the first step in becoming a regular member of the TPS. In August 2003, the complainant paid for and completed his physical and aptitude tests, and obtained his necessary certificates.
Also in August 2003, the complainant completed his application to the TPS. In this application, the complainant voluntarily identified himself as a white male.
On September 23, 2003 the complainant was interviewed by two constables of the TPS, the third step in the application process. He was awarded a "pass", meaning that he had successfully passed the interview, and his application could be moved into the background investigation stage.
On or about September 30, 2003, the complainant's application was moved into the background investigation stage. The police officer assigned to do this was PC Alison Slater of the TPS's EU. The complainant was told by PC Slater in the autumn of 2003 that his background check would not be completed in time for him to receive an offer for entry in the December 2003 class of cadets, and she asked him to be patient in awaiting completion of his background check.
In February 2004 the background check on the complainant was completed, and the complainant was advised by PC Slater that he had successfully passed the background check, was an acceptable candidate, and she was recommending him as such to the mangers of the EU. The complainant was advised that if he was "hired" the management of the EU would formally accept his application, by way of an offer to attend the Ontario Police College as part of a class of cadets.
Having heard nothing more, on or about March 29, 2004, the complainant telephoned the EU, and asked to speak to a manager of the EU, Mr. William Gibson or Ms. Maureen Carey. He was told by the clerk speaking to him that neither manager would take his call and he should speak to his background investigator (PC Slater).
7The complainant testified that, at the end of March 2004, he contacted PC Slater. He believed that was the first time PC Slater told him that there were now concerns that he is male, white, lives in Guelph (he moved from Etobicoke to Guelph in 2000), and an issue from 1997 is "still floating out there" and "posing an issue." The complainant had explained earlier in his testimony that he was charged with "impersonation of police officer" in 1997, but the charge was withdrawn. He told PC Slater the charge was withdrawn, it never went forward, he remained "an auxiliary", and was never disciplined. He asked her why it was an issue and she stated, to the effect, "well, it is."
8The complainant testified that PC Slater stated that it was up to her to look into the charge and determine whether or not the Crown withdrew it based on a technicality or not, and it was her job to "alleviate" it. Further, it was his understanding that it was alleviated because he was told that he had successfully passed the background check. The complainant also testified that PC Slater told him that there was an internal document from Sergeant Cocksedge, concerning the 1997 charge, that was in his favour. An underlined portion of "Internal Correspondence" from Sergeant Cocksedge, dated December 18, 1997, states as follows: "No one from Peel Regional Police has ever investigated or questioned him about what occurred before laying the charge." It also states that it appears that another individual "concocted this charge for leverage to mitigate his dangerous driving charge." PC Slater's Employment Investigator's Report, dated January 30, 2004, identifies this incident as a "concern" but refers to Sergeant Cocksedge's correspondence and indicates that the concern is alleviated.
9The complainant testified earlier that he had a conversation with PC Slater's supervisor, Sergeant Zakrajesek, who looked at his file before he applied, including documents from the 1997 charge, and said it was stale and told him to apply. He testified that Sergeant Zakrajesek had called him earlier to thank him for assisting PC Slater with a background check on another candidate and asked him why he was not applying.
10The complainant testified that he continued to have conversations with PC Slater and, again, was told to be patient. He had a conversation with her on May 20, 2004, and attempted to get the status of his file. He testified that PC Slater said that, at the moment, as he is "not a minority" and he is "a white male", it did "not look good." He also testified that it was his understanding that his file was still getting consideration and they were looking at the August class as the April class had gone. He was concerned that they were filling spots in the August class with candidates who had not undergone the same procedure he had undergone in that their background checks were not as lengthy. He also testified that, on or about July 23, 2004, a routine order was issued by the Chief seeking assistance from employees to get applicants for the August class as they were having trouble filling that class.
11The complainant received a telephone message from PC Slater on August 25, 2004, and had a conversation with her on August 30, 2004, regarding the status of his file. During their conversation, PC Slater told the complainant that the next step may be to call him in for another interview. The complainant replied that that made no sense and he asked what the reason would be for an interview. PC Slater said that "they do that sometimes" and the complainant replied, to "gong" him from the process. PC Slater said "no, they sometimes call you in to have an interview." The complainant asked "why not just say no now?" PC Slater advised him to wait out the week and see if anything happened. She said she would call him if she heard anything.
12The complainant was asked why he asked PC Slater "why not just say no now?" He testified that they had been keeping him on "a string all the way along" and he wanted to know why they were holding on to his file. He testified that he was "getting a run around again through no answer" to all the queries he made as to the status of his file. He testified that having been told that his background check was complete it appeared to him that the EU was "winging it." No definitive answer was given and he wanted to know where he stood.
13The complainant testified that around September 8, 2004, he had a conversation with Staff Sergeant Hogg of the EU and asked him what the status was on his file. He testified that Staff Sergeant Hogg commented to the effect, "you mean we've never said no to you at any time in the process" and he replied, "no" and that he "got the run around." Staff Sergeant Hogg said that he would get back to him.
14The complainant testified that Staff Sergeant Hogg got back to him shortly thereafter and said, "well, why don't you come in here and fill out a new application form because yours is now over a year. I'll get you 'psyched' and get you into the December class." The complainant met briefly with Staff Sergeant Hogg and filled out the paperwork on September 10, 2004. PC Slater handed him the documents to fill out and said that he might have to do his certificates again, but that she would get back to him.
15The complainant testified that, shortly afterwards, he received a call from PC Slater confirming that the TPS was taking the position that he needed to have certificates. He didn't feel that was fair and he called Staff Sergeant Hogg. He testified that Staff Sergeant Hogg flippantly said, "yeah, you need new certificates." The complainant said, "that's not fair" and "you knew when my certificates were to expire." He also said "I've been in the process for over a year" or "you've held me in this process" and "you told me all I had to do was fill out these forms and I'd be on my way to the December class." He testified Staff Sergeant Hogg said, "well, isn't that too bad."
16The complainant also testified that in speaking with Staff Sergeant Hogg, the question was not just getting certificates again. He testified that he had to "start over from scratch", meaning he would have to start with a new application, undergo the interview and "go through background all over again."
17The complainant testified that, as far as he was aware, nothing happened with his application file between the time that he had the above conversation with Staff Sergeant Hogg and when he wrote a letter to the Chief which he hand delivered to headquarters on October 13, 2004.
The complainant's letter to the Chief and subsequent events
18The respondents also do not dispute the following facts set out in the complainant's pleadings:
On or about October 13, 2004, the complainant wrote to the then Chief of Police, Julian Fantino. He related the history of his service to the Toronto Police, and the history of his application of August 2003. He complained that despite his evident qualification, his application as a cadet had been allowed to languish while his physical certificates neared expiration under and with the knowledge of the EU and that this was a breach of the TPS's core values.
As a result of his letter to the Chief, on or about October 26 the complainant received a telephone call from the individual respondent, Ms. Carey, who stated that she did not want to respond in writing to his October 13 letter, and invited the complainant to meet with herself and Staff Sergeant Hogg. The meeting occurred on November 9, 2004, and at that time, the complainant again provided a history of his application, beginning with the contact from Sergeant Zakrajesek, and progressing through the telephone calls in September wherein he had completed a pro forma new application at the request of Staff Sergeant Hogg. By the end of that meeting, Staff Sergeant Hogg stated that he was not after all sure that the complainant needed new certificates, and he would get back to him.
On November 17, 2004, in a telephone call, Staff Sergeant Hogg informed the complainant that the Ontario Association of Chiefs of Police (the "OACP"), a body that is retained by the respondent to implement some of its hiring criteria, insisted that he have current certificates. The complainant requested the TPS provide evidence of that fact, which Staff Sergeant Hogg claimed he would investigate further. The complainant further indicated that he felt this requirement was unfair: TPS was openly discriminating against him because of his gender and race, although he was consistently told that he was an otherwise acceptable candidate, and he was now expected to pay an additional amount for certificates, with no assurance that he would receive an offer when his certificates were renewed.
On November 25, 2004, the complainant received another call form Staff Sergeant Hogg, who stated that he was calling on behalf of the Chief. The complainant asked Staff Sergeant Hogg if he was being told that renewing his certificates would result in an offer. Staff Sergeant Hogg said that he would receive a reply by December 1, 2004.
On December 3, 2004, the complainant received a telephone call from Ms. Carey in which she said to him, "we've decided to permanently screen you out", meaning that the complainant would no longer be considered, either then or in the future, for hiring as a regular member of the TPS. Ms. Carey promised to follow that telephone call with a letter to the same effect, but no letter was sent to the complainant.
The Complainant
19The complainant testified that he decided to write a letter to the Chief because he felt he "was getting the run around". He was trying to achieve an offer of employment. He expected that an investigation would be undertaken and, at the end, he would receive a "letter of offer" and be placed in the December class, as Staff Sergeant Hogg had alluded to in his conversations with him. He explained that, in the letter, he advised that he felt that the treatment of him was unfair, particularly when he was advised that he was white, he was male, he was not a resident of the GTA and he lived in Guelph, they were relying on a criminal charge that was withdrawn by the Crown, and they were now relying on the fact that his certificates were expired.
20The complainant's five-page letter to the Chief, dated October 13, 2004, begins by indicating that he is seeking "answers as to the competency of the employment processes utilized with respect to [his] application for employment". In cross-examination, he agreed that he was implying that the people who handled his application, with the exception of Sergeant Zakrajesek, were less than competent. His letter also contains the following statements:
I did as instructed, and during my conversation with the officer, I was advised that the charge that had been laid against me goes against my moral character. As does my residency, my gender, and my "colour"...("you are a white male and we are of course pushing to hire minorities')
...
And I have serious concerns of those additional comments, with respect to gender and colour.
...
On May 20, 2004 I again attempted to obtain my file status. I was advised: "the file is on the Sergeant's desk – but as I am not a minority,that I am a white male" ... "it does not look good, and again there are issues in the file that go against your moral character...but be patient".
21The complainant testified that the meeting on November 9, 2004 with Ms. Carey and Staff Sergeant Hogg was, at the onset, very cordial. He and Staff Sergeant Hogg were talking about the birth of his daughter, as was Ms. Carey. Staff Sergeant Hogg also engaged him in a conversation about "Disney" which is one of his favourite places to go. They moved on to discuss the letter and Ms. Carey asked him what he expected out of the meeting. He replied, "I anticipate an offer of employment." Ms. Carey went through some of the points raised in his letter. He testified that when Ms. Carey got to the point where they were talking about the comments made by PC Slater, specifically that she said he "was white, male and living in Guelph, Ms. Carey stated she had very serious concerns about that, but she brushed over that topic." They did not return to it.
22The complainant testified that, at the meeting, he referred to the "changing of the parameters under the OACP program". In particular, the program states that you need valid certificates to get to the background stage. It does not require updated certificates to get a "letter of offer", particularly in light of his knowledge of members being hired without valid certificates. He reiterated that he felt that he was being excluded from the process based on criteria that made no sense in that whether or not PC Slater was being openly honest by stating that he "was white, male and living in Guelph", she then referred to the charge that had been laid but later withdrawn." He argued that the Crown withdrew the charge, he was reinstated without any discipline or censure, he remained an auxiliary, and if there was any doubt about core values, he had recently been promoted to the rank of sergeant based on core values.
23The complainant testified that he questioned the requirement for the certificates in order to be given an offer of employment. He testified that Staff Sergeant Hogg said he was unsure as to whether or not certificates were required and he would have to consult with the OACP. The meeting ended and there was an undertaking by Staff Sergeant Hogg to get back to him within a week. The complainant testified, in cross-examination, that the meeting was very relaxed, he thought it was very positive, and he was expecting an offer of employment.
24The complainant testified that he did not hear from Staff Sergeant Hogg within a week. Having heard nothing (I note that the parties agree in their statements of facts, as set out above, that Staff Sergeant Hogg contacted the complainant on November 17 to inform him that the OACP insisted that he have current certificates), he then called the Chief's office on November 18 to inquire as to the status of his complaint. He was advised that someone would get back to him.
25The complainant testified that Staff Sergeant Hogg called him on November 25 and said he was responding to the complainant's call to the Chief's office. Staff Sergeant Hogg confirmed that his certificates were expired and that there was nothing they could do. The complainant testified that he asked Staff Sergeant Hogg, hypothetically, if he spent the $300 (to renew his certificates) would he put him in the December class. Staff Sergeant Hogg advised that he hoped to have the class filled during the week, and the next class in April was the class that the complainant would be looking at. The complainant advised Staff Sergeant Hogg that he did not want to waste the money, and he "would like an answer if the TPS is going to make [him] an offer." Staff Sergeant Hogg advised that he would review the complainant's file and get back to him by the next Wednesday (December 1).
26The complainant testified that he did not receive a call from Staff Sergeant Hogg, however, on Friday, December 3, he received a call from Ms. Carey. It was very short. Ms. Carey said she was getting back to him, instead of Staff Sergeant Hogg, and that they had made a decision to permanently screen him out of the process.
Ms. Carey
27Ms. Carey testified that she joined the TPS in about the fall of 2003 and she left in May 2006. While employed with the TPS, she was the Manager and Unit Commander of the EU. She testified that, in the EU, she had the last word in terms of hiring uniform staff, but could be overruled by the Deputy Chief. She would not see every application because there were many, about a thousand, or maybe more, over the course of a year. She would see the "final candidates."
28Ms. Carey testified that clearance through the background check did not guarantee that someone would move on in the hiring process. She explained that the background officer may pass the file to the sergeant, who reviews the file and either passes it or rejects it. If the sergeant passes the file, it then goes to the staff sergeant for review. The file then goes to the most senior officer in the unit for final review, and is then passed on to Ms. Carey for a final decision. At the time the complainant was permanently screened out, the most senior uniformed officer in the EU was then Inspector Deborah Preston. Prior to Staff Inspector Preston, Inspector Leonard Faul was with the EU. Ms. Carey was considered a civilian
29Ms. Carey was referred to a number of emails concerning the complainant's October 13, 2004, letter to the Chief. She testified that the "email chain" started at the Chief's office. The Correspondence Co-ordinator from the Chief's office forwarded the letter to the Executive Assistant to the Deputy Chief (Corporate Support Command) who, in turn, passed it on to an individual who worked in the office of the Director of Human Resources. The individual in Human Resources passed the letter on to Ms. Carey because it was a complaint relating to the EU.
30Ms. Carey confirmed that she received letters of complaint from time to time through the Chief's office. She testified that people complained about the fact that they did not get a job, and either they couldn't understand why or they wanted an explanation. She testified that when she received the email concerning the complainant's letter she was "bound by the process to respond to the complaint within ten days."
31On October 26, 2004, Ms. Carey sent an email to the individual in Human Resources who had forwarded the complainant's letter to her. Ms. Carey advised that, because the issues the complainant brought forward needed to be investigated and addressed, she felt that "it would best be served by a meeting" with the complainant and Staff Sergeant Hogg.
32Ms. Carey testified that, in her view, the complainant was questioning the competency of the recruitment process for police officers. When they met, they talked about his wife having a baby before they engaged in a conversation about his concerns. The complainant voiced the same concerns he outlined in his letter. She testified that, at the onset, the complainant was very friendly, but he was clearly upset and annoyed about the whole situation. She testified that, at the end of the meeting, she asked the complainant what he wanted and he said he wanted to be a police officer. She responded, "well, we cannot make that offer or commitment right now," but she promised him that they would put his file through the process and he would receive a decision from her. She recalled that, at some point, he raised concerns with respect to discrimination, but she could not recall if it was in the meeting, which lasted about 45 minutes.
33Ms. Carey testified that, after the meeting, she arranged for the complainant's file to go back into the process to be reviewed. It would have gone back into the process from a background officer through to the sergeant, the staff sergeant, with a final review and report by Inspector Preston. She testified that Staff Sergeant Hogg checked into the certification status of the complainant because he had a concern that his certification may have expired and he would have to reapply and there was a cost to it.
34Ms. Carey testified that, prior to meeting with the complainant, she reviewed his application file. She testified that there were a number of issues in the file. Incidents were indicated in the file that caused her concern and that she felt were not alleviated. When asked if she recalled anything specifically, she testified that there had been a complaint about him impersonating a police officer. She was asked if it was still a cause for concern if he was not convicted of an offence around that. She indicated that it was. She explained that the standard for hiring police officers is one whereby if there are incidents in the file that may cause concern to anyone in the process, even though they may be deemed to be alleviated, then that would affect the person's ability to be hired. When asked why it is a concern if someone might have portrayed himself as a police officer, she testified that "there could be disastrous consequences if someone does that and in terms of what could have been the outcome." She testified that an incident like that in your file is quite serious.
35Ms. Carey asked Staff Inspector Preston to review the complainant's file. Ms. Carey testified that she explained to Staff Inspector Preston that there had been a complaint and that she promised to put the file through the process. She asked Staff Inspector Preston to review the file and provide her final recommendation.
36Ms. Carey was referred to Staff Inspector Preston's report concerning the complainant. She testified that Staff Inspector Preston reviewed the issues that were of concern to the TPS contained in the complainant's file, but at the same time she also acknowledged some of the positives in the complainant's background – commendations that he had received. She felt that the report was fair and balanced.
37Ms. Carey discussed the report with Staff Inspector Preston. She testified that they discussed the issues that were of concern to them and the final decision in terms of whether they were going to extend an offer or reject his application. They had a discussion about the fact that they would not be extending an offer and, based on what Staff Inspector Preston had indicated in her report, that they couldn't see him being a police officer in the future. She testified that she agreed with Inspector Preston's report.
38Ms. Carey was asked if she permanently screened out any applicant other than the complainant and confirmed that she had. Ms. Carey was asked why she permanently screened out the complainant. She testified that Staff Inspector Preston's report highlighted the concerns that they had. The complainant had applied over many years and these incidents were in the file. He had been turned down and now he'd reapplied again. These concerns had not been alleviated and that was the reason for the decision.
39Ms. Carey testified that the complainant had every right to have his file go through the process in a fair and consistent way and he deserved a decision. She testified that he deserved a decision from her, as to whether he was going to get an offer or not, because he had applied over the course of so many years and he had come back questioning the process. She testified that he deserved an answer about his opportunity, or his future, with the TPS.
40Ms. Carey denied that the complainant writing to the Chief had any effect on her decision. She testified that the Chief's office receives many complaint letters and it's the right of any applicant or citizen to forward letters of complaint. She testified that the complainant questioned the competency of the recruitment process in his letter and had every right to complain about it. They, in turn, in the EU, and in her capacity, had the responsibility to ensure he received a response.
41Ms. Carey testified that she called the complainant and told him that, not only would he be screened out, but he was screened out permanently. She called him personally because he told her he wanted a job as a police officer and she felt she owed him that response. She felt that she should call him herself, because she promised him that he would get an answer. He didn't receive a letter. She explained that, after they make a decision, the file goes to the civilian section of the unit where the supervisor arranges for letters to go out. She learned that did not happen.
Staff Inspector Preston
42Staff Inspector Deborah Preston testified that she was transferred to the EU as a Sergeant in April 1999. She was promoted to Staff Sergeant and remained in the EU until 2001 or 2002. She then left to be the Executive Officer for the Director of Human Resources, after which she transferred to 55 Division as a Staff Sergeant. She was then promoted to Inspector and returned to the EU on November 22, 2004. She testified that she would have started reviewing files immediately.
43Staff Inspector Preston testified that she was given the complainant's application file by Ms. Carey to review on her behalf. She testified that she believed Ms. Carey told her that she had a meeting with the complainant and that he asked for an answer one way or another.
44Staff Inspector Preston was referred to her report, dated November 29, 2004, concerning the complainant. In her report, she mentions that the complainant was cautioned in 1995 regarding speeding in a police vehicle. She was asked why she noted that. She explained that, when reviewing the file, one of the things that she wanted to do was to note each of the issues that she felt were important, both positive and contrary to his application. She explained that, as an auxiliary officer or a uniform officer or any member of the TPS, it's important to respect the rules of the road. It speaks to public trust, and the public expects them to follow the rules of the road. She felt that speeding in a police vehicle was important to note.
45Staff Inspector Preston mentions in her report that the complainant was charged with impersonating a police officer in 1997, and notes that the charge was withdrawn by a Crown Attorney with no further action. She testified that, at that time, the complainant was an auxiliary officer, and whether an auxiliary officer or not, impersonating a police officer is a serious charge. With respect to the charge being withdrawn, she testified that, in her opinion, something still occurred, so it was still an area that needed to be considered in its totality with everything else.
46In cross-examination, Staff Inspector Preston was asked if she recalled being provided with information, to the effect, that at least one investigator thought that the individual who laid the charge, or who made the complaint (related to the charge of impersonating a police officer), was doing so for secondary gain because he was trying to offset the complainant's charge against him of dangerous driving. She testified that she had no knowledge of that, and that she did not see the Internal Correspondence from Sergeant Cocksedge, dated December 18, 1997, related to that.
47In her report, Staff Inspector Preston also notes that the complainant received several positive documentations from the TPS, and one from the RCMP, and also a commendation and a merit mark. She testified that she noted these items because it's important to highlight all the positive issues as well, and the complainant was a long-serving auxiliary officer (since 1992). She testified that it's important to note that he did some positive work with the TPS, as well as with another agency, and he was commended for his actions.
48In her report, Staff Inspector Preston also mentions that the complainant had applied on other occasions. When the complainant re-submitted his application in 2004, he indicated that he had made five previous applications to the TPS (including his 2003 application), and a total of nine applications to three other police services.
49Staff Inspector Preston notes in her report that, on November 25, 1996, an EMP 20 (Employment Investigator's Report) deemed the complainant to be "not acceptable" at that time. She notes that he went through "Freedom of Information" to receive documents pertaining to his employment. As a result, he wrote a letter dated March 6, 1997, refuting the issues cited in the EMP 20, and, on July 10, 1997, he retained a law firm with respect to his application for employment.
50Staff Inspector Preston testified that she noted these things because she felt that it was important. She testified that "it was another piece of the puzzle." She referred to the fact that there were several applications, and testified that she wanted to know the reasons why he was not considered previously, and that she started to notice a pattern as she went along. She explained that there just seemed to be a pattern, in her opinion, where he would use various mechanisms if he didn't receive the answer that he was looking for. She testified that he was certainly entitled to the mechanisms, but it just seemed to start to develop a pattern as she went along and she felt it was important to note that.
51In cross-examination, Staff Inspector Preston was shown four letters in relation to the November 25, 1996, EMP 20: a letter dated January 20, 1997, from the complainant to "A/S/Sgt. Paul Allen", referring to inaccuracies in the complainant's file; a letter dated February 13, 1997, from Staff Inspector Ron Taverner to the complainant, indicating that documentation has been removed from the complainant's file; a letter date-stamped as received on June 30, 1997, from Staff Inspector Cheryl Ingwersen to the complainant's counsel, waiving the one-year waiting requirement for the complainant to reapply as a police constable; and, a letter dated July 15, 1997, from Staff Inspector Taverner to the complainant's counsel, confirming documentation was removed from the complainant's file.
52Inspector Preston testified that the first two letters did not look familiar to her, but added that it doesn't mean that she didn't see them. She testified that she did not see the third letter and did not believe she saw the fourth letter. Staff Inspector Preston testified that, had she seen these letters in November 2004, she believes that she would have made reference to them in her report.
53Staff Inspector Preston was asked if, having read the letters from Staff Inspectors Taverner and Ingwerson, would she have noted those as positive in terms of the complainant's overall application. She didn't know whether she would have noted it as a positive or more of an alleviation. She testified that there was an issue and, as a result, "these steps were taken and that documentation had been removed and the issue remedied if you will." She would have accepted the judgement of her colleagues. In re-examination, she testified that, had she seen the letters, it would not have changed her mind, as they spoke to one issue.
54Staff Inspector Preston confirmed that she accepts that the complainant, or any applicant, has the right to address negative comments made about them in the course of an application, however, it gives her concern that he does that, in terms of the TPS's ability to supervise him. She testified that she didn't know if she had come across a candidate that had used as many avenues or challenged as many decisions.
55In her report, Staff Inspector Preston also mentions that the complainant was disciplined at work for insubordination and that this concern was withdrawn at the grievance process. She testified that, even though it was an issue that was withdrawn, something would have happened to instigate or start the process, so there was something behind it, and she felt that it was important to note.
56Staff Inspector Preston also notes that the complainant has been involved in two at-fault motor vehicle collisions. In particular, he was involved in a property damage collision in 1997, and his vehicle struck a pedestrian in the fog in 2001. She notes that he received three speeding tickets in 1985, 1986 and 1991, and that he also received a ticket for failing to stop at a stop sign in 2001. She testified that the public expects the police to operate at a very high level and they are held to a high standard as they drive. She testified that driving is one of the issues that they really looked at for all applicants as they went through the process.
57Staff Inspector Preston notes that the complainant's personal and employment references speak highly of him, as do his supervisors in the auxiliary program, and that PC Slater recommended him on January 30, 2004. She testified that the fact that his references speak highly of him and that PC Slater recommended him was important. She didn't believe that she spoke to PC Slater about what she had written.
58Staff Inspector Preston again referred to "a pattern" and the complainant using "mechanisms" that he was entitled to. She mentioned "the grievance process", "an issue withdrawn by a Crown", "retaining a law firm", and "going through Freedom of Information". She testified that it "painted a picture" to her of somebody that they may have difficulty supervising in a uniform capacity. She acknowledged that his references spoke highly of him and that he did well in the auxiliary program, but noted that it is a separate program from the uniform process. She testified that when she looked at the background in its totality, it "painted a picture" to her of somebody that would be difficult to supervise.
59The last paragraph of Staff Inspector Preston's report, regarding the complainant, states as follows:
The police constable process is a competitive process. One of the priorities of the Service includes reflecting the community in which we serve. As a result, we must ensure that we are hiring the absolute best possible candidates to represent the Service. When considering our organizational needs of being a resident of the GTA, having a second language and higher education, I would not consider this candidate to fall into these categories. In addition, I have some concerns about this applicant and would not consider him at this point and do not see that position changing in the future. I recommend that he not be considered in this process.
60When asked what the organizational needs were, Staff Inspector Preston testified that they look at whether an applicant reflects the community that they serve (and, in terms of that, "visible minority, female, aboriginal"), lives within the City of Toronto or in the immediate GTA, has any work-related experience, and speaks a second language.
61Staff Inspector Preston was asked what her concerns were about the complainant as a candidate that resulted in her not seeing her position changing in the future. She testified that the main and only one really had to do with ability to supervise. She referred to people being hired into "a para-military or a semi-military organization" where there are rules, procedures, and regulations that need to be followed, a hierarchical reporting structure, and people that tell you what to do, where to go, and what your duties are on a daily basis.
62Staff Inspector Preston was also asked if she had concerns about the complainant's judgement and she confirmed that she did and that it related to "a few areas." She referred to the impersonation charge, and, although it was withdrawn, "something occurred" that would have been inspired, in her opinion, by poor judgement. She also referred to the "speeding issue in the police vehicle", the speeding tickets and the at-fault accidents, although she acknowledged there were mitigating factors to at least one of them. She indicated that she was "not going to say that he's the one and only person in the Service that has ever sped in a police vehicle", and "he's not the only individual that's ever applied, or is on the Service, that has received speeding tickets." She testified, however, that all these issues individually and in totality, to her, were judgement issues. She testified that, in 2004, when she looked at the time periods, she didn't see any pattern where things were changing as the years progressed, so there was nothing that would say to her that they would change in the future at that stage.
63Staff Inspector Preston testified that she did not recall any discussion with Ms. Carey when she gave her report to her. She testified that she did not speak to either Sergeant Zakrajesek or Staff Sergeant Hogg.
64In cross-examination, Staff Inspector Preston was asked if she intended to permanently screen out the complainant when she wrote her conclusion in her report. She testified that when she was previously with the EU, they didn't permanently screen out, but when she returned in 2004, there was a new process in place. When she was looking at the file, it was more for the next class and the immediate future, but she also didn't see her opinion changing for future classes.
Inspector Faul
65Inspector Leonard Faul held numerous positions before joining the EU in January 2004, for nine months, as the second-in-command. He joined Traffic Services in January 2006, which is where he was at the time he testified. The complainant is one of his auxiliary sergeants at Traffic Services and he met him in early 2006. He testified that they are not friends and do not socialize outside of work. It's strictly a professional relationship.
66Inspector Faul does not recall seeing the complainant's application file while he was with the EU in 2004. He was, however, provided with an opportunity to review the complainant's application file. He was asked what recommendation he would have made in 2004 if he did see the complainant's file.
67Inspector Faul testified that certainly the file contained some areas of concern. He referred to the complainant being charged with impersonation of a police officer and indicated that would certainly give him cause for concern. He noted, however, that PC Slater had alleviated that concern and she had done so by talking with Sergeant Cocksedge. He indicated the Crown withdrew the charge and Peel Regional Police had basically done no investigation before laying the charge.
68He explained that when another officer alleviated a concern, that meant that, even though a candidate had something which could be considered to their detriment, it did not detract from the overall decision to support the application. Even though somebody had been charged with a criminal offence, the circumstances of the event leading to those charges would have to be considered, as well as the resolution of the charges. Even though somebody may be acquitted, they still want to know what they did that caused them to be in that situation in the first place.
69He testified that the investigating officer's task would be to bring concerns to the attention of the supervisors and to him. His focus would be on how they have alleviated the concerns and have they done so thoroughly and properly. He testified that he got to know PC Slater's level of experience quite well and he would accept that she had alleviated those concerns, but he would still review it himself. He testified that certainly there were other concerns with the complainant's file that PC Slater had alleviated and he would have accepted those alleviations as well. Based on everything else that he saw in the file, he would have supported PC Slater's recommendation that the complainant be employed.
70Inspector Faul was asked if the file would have given him any concerns about the ability of the TPS to supervise the complainant. He indicated that it would not, that the complainant was an auxiliary officer, and would not remain so if he didn't meet their core values and was not a team player. He testified that all of the supervisory comments he could see in the file would indicate that he's quite capable of being supervised.
71Inspector Faul was asked to comment on Staff Inspector Preston's evidence that the complainant's history, as revealed in the file she reviewed, presented a picture of someone that would be difficult to supervise if he had been hired. He testified that there would be some concerns because he had grieved an issue at his place of employment, and there was another concern in relation to an allegation in his auxiliary file which really shouldn't have been there and Staff Inspector Taverner reviewed that and purged the file quite correctly. He testified, however, that in the hiring of constables, he's looking for somebody that is quite prepared to stand up for their own rights, as well as the rights of others. He testified that if a work-related situation is wrong, or something is in one of their files that shouldn't be there, they should challenge it. He would support those challenges.
72With respect to the practice of permanently screening out some applicants in 2004, Inspector Faul testified that generally it would have to be for something quite significant. He testified that he absolutely disagreed with Ms. Carey's conclusion that the complainant be permanently screened out. He testified that he saw nothing in the file that would stop him from recommending that the complainant be employed.
ANALYSIS AND DECISION
Relevant Code provisions
73Sections 8 and 9 of the Code provide as follows:
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
Assessment of credibility
74In assessing credibility, I am guided by the principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354:
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 carries 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 a 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. [emphasis added]
75In assessing the evidence, in addition to the oral evidence of the parties and witnesses, I have considered the documentary evidence submitted at the hearing.
Reprisal
76Section 8 of the Code provides that every person "has a right to claim and enforce his or her rights under this Act... without reprisal or threat of reprisal for doing so." In order to prove a violation of section 8 of the Code, there must be evidence of an actual or threatened prejudicial act. In addition, a nexus must be established between the actual or threatened prejudicial act and the claiming or enforcement of the complainant's rights under the Code. See Entrop v. Imperial Oil (No. 7), (1995) 1995 CanLII 18196 (ON HRT), 23 C.H.R.R. D/213 (Ont. Bd. Inq.) at para. 37. Further, in Jones v. Amway of Canada Ltd., 2001 CanLII 26217 (ON H.R.T.), where the issue was whether the termination of the complainant's employment was a reprisal, the Board of Inquiry held that "the complainant must adduce evidence to show that, on the balance, the respondent intended to retaliate." On appeal, the Divisional Court held as follows:
Although it is clear that in human rights law generally there is no need to prove an intent to discriminate, we have great difficulty appreciating how there can be breach of section 8 without an intent to perpetrate the prohibited conduct... There is, in our opinion, nothing incorrect or unreasonable about the Board's finding that the onus was on the appellant to prove an intent on the part of the respondents. (see Jones v. Amway of Canada Ltd. (2002), CHRR Doc. 02-177 (Ont. Sup. Ct.), at para. 11.)
77In a more recent Decision of the Tribunal dealing with reprisal, Noble v. York University, 2010 HRTO 878, the Tribunal held that the following elements must be established in order to prove reprisal:
a. An action taken against, or threat made to, the complainant;
b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce, a right under the Code; and
c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.
The Tribunal also held that, in proving reprisal, there is no strict requirement that the complainant has filed a complaint or application under the Code, and the complainant need not prove that their rights have in fact been infringed to claim the protection of section 8.
78I am satisfied that when the complainant wrote to the Chief on October 13, 2004, and indicated that he had serious concerns about the comments made to him, with respect to gender and colour, he was claiming rights under the Code. I also accept the complainant's evidence that PC Slater's comments, with respect to the complainant being white and male, were raised during his meeting with Ms. Carey and Staff Sergeant Hogg on November 9, 2004. The parties also agree in their pleadings that the complainant indicated to Staff Sergeant Hogg, in a telephone conversation on November 17, 2004, that the "TPS was openly discriminating against him because of his gender and race". I find that on these occasions, the complainant was also claiming rights under the Code. However, for the reasons that follow, I do not find that the complainant has established a nexus between claiming rights under the Code and being permanently screened out of the employment process as alleged.
79To begin with, it is quite clear from the complainant's own evidence regarding his conversations with PC Slater that there were concerns with his application well before the complainant claimed rights under the Code. PC Slater told the complainant that there were concerns, despite having alleviated the concerns she identified in the background check and having recommended him for a position with the TPS. PC Slater told the complainant that the concerns were that he is male, white, lives in Guelph, and the 1997 charge of impersonating a police officer was still an issue. There is, however, no evidence before me as to with whom the concerns referred to by PC Slater originated. Neither PC Slater, Sergeant Zakrajesek, nor Staff Sergeant Hogg were called as witnesses at the hearing.
80With respect to the application process in the EU, Ms. Carey referred to application files going from the background officer, to the sergeant, to the staff sergeant, to the most senior officer, and then to her for a final decision. Inspector Faul similarly testified that, at the time he was in the EU in 2004, once a file investigator made a decision as to whether they would support an application or not, the file was forwarded to their immediate supervisor (Sergeant Zakrajesek) who would review the file and either agree or disagree with the officer's recommendation. The sergeant would sign an EMP 20M (Employment Investigator's Report Management Sign-off Sheet) as having reviewed the file and add any comments either agreeing or disagreeing. The file would then go to the staff sergeant for the same process, then to the inspector for final review, and, finally, to the unit commander with a recommendation to make an offer or not. He confirmed that there were instances where Ms. Carey would ask him to review a file, however, he did not recall seeing the complainant's application file in 2004.
81The complainant testified that he had a conversation with Sergeant Zakrajesek, who looked at his file before he applied, including documents from the 1997 charge, and said it was stale and told him to apply. He also testified that, on August 6, 2004, he called Sergeant Zakrajesek who told him that his file had moved on to the next level of supervisor and said "good luck."
82The complainant testified that he received a voice mail message from PC Slater on August 25, 2004, and she told him that the Inspector and the Staff Sergeant were both on leave and Sergeant Zakrajesek was off. She told him that she spoke to the Unit Commander about his file, the Unit Commander made a note, and she was going to wait until the Staff Sergeant and Inspector came back to see if they even had a look at his file, and she would talk to them about it. When he spoke to PC Slater on August 30, 2004, she was not sure if the Unit Commander had discussed his file with the Staff Sergeant and Inspector.
83In any event, it appears that by early September 2004, the complainant's application file was with Staff Sergeant Hogg. The complainant testified that he spoke to Staff Sergeant Hogg about the status of his file on September 8, and met with him briefly on September 10 when he completed a new application form.
84Ms. Carey agreed that the complainant's background check was completed at the end of January 2004. She testified that, after the background check was completed, the complainant's file went to Sergeant Zakrajesek to be reviewed. She agreed that the next step was for the file to go to Staff Sergeant Hogg and she was aware that Sergeant Zakrajesek had passed the file forward to move on to Staff Sergeant Hogg.
85Ms. Carey also testified that, prior to receiving correspondence concerning the complainant's letter to the Chief, she remembered that they had received the file, there had been concerns about the file, and the complainant was concerned about the fact he had not been hired. In cross-examination, Ms. Carey indicated that she believed Staff Sergeant Hogg's position, in respect of the complainant as an applicant, was supportive.
86Based on the evidence, the complainant was advised that there were concerns with his application file as early as the end of March 2004. However, it is not clear who held these concerns.
87It also appears that the complainant's application file was moving slowly through the application process. The complainant testified that he was quite disheartened knowing that, while his file sat around the EU, people were being invited and "raced" through the process, without undergoing the same scrutiny that he underwent. In cross-examination, the complainant confirmed that he was getting very frustrated about the situation.
88Ms. Carey was asked how long a background check typically takes. She testified that a file that has no issues can move through the process very quickly, but if there's one or two issues, it can take a lot longer, depending on what those issues are. She testified that she could not say exactly but a file that presented no issues would take a couple of weeks to go through the two-step interview process, the background check, the sergeant, the staff sergeant, and the inspector.
89The complainant testified that in September 2004 he filled out a new application form as his August 2003 application was over a year old. Shortly thereafter, PC Slater and Staff Sergeant Hogg confirmed that he also needed to obtain new certificates. The next action that the complainant took was to write a letter of complaint to the Chief, dated October 13, 2004.
90While I have found that the complainant claimed rights under the Code in his letter to the Chief, it is clear from a review of the letter that this is only one of a number of issues that the complainant raised in the letter. In internal email correspondence, the TPS characterized the complainant's letter to the Chief as "concerns with competency of the employment process re constable application". The complainant's letter resulted in a meeting on November 9, 2004, with the complainant, Ms. Carey and Staff Sergeant Hogg. At the meeting, the complainant told Ms. Carey that he wanted or expected an offer of employment. She promised him that they would put his file through the process and he would receive a decision from her.
91Ms. Carey asked Staff Inspector Preston, who had just recently returned to the EU as an Inspector, to review the complainant's file and provide her final recommendation. She explained to Staff Inspector Preston that there had been a complaint. Staff Inspector Preston ultimately recommended that the complainant not be considered.
92While Ms. Carey testified that she explained to Staff Inspector Preston that there had been a complaint, there is no evidence before me with respect to what, if anything, Staff Inspector Preston understood about the nature of the complaint. Staff Inspector Preston testified that she believed Ms. Carey told her that she had a meeting with the complainant and that he asked for an answer one way or another. In my view, the evidence does not establish that Staff Inspector Preston was aware that the complainant had claimed rights under the Code. In the circumstances, I do not find, nor am I able to draw an inference, that Staff Inspector Preston's recommendation constitutes an intention to reprise for claiming rights under the Code.
93Based on Staff Inspector Preston's recommendation, Ms. Carey permanently screened out the complainant. She testified that she agreed with Staff Inspector Preston, and based on what Staff Inspector Preston had indicated in her report, they could not see the complainant being a police officer in the future. When asked why she permanently screened out the complainant, Ms. Carey testified that Staff Inspector Preston's report highlighted the concerns they had, which had not been alleviated. She also indicated that the complainant had applied over many years, he had been turned down, and he had reapplied. She also testified that the complainant deserved a fair review and an answer about his opportunity, or his future, with the TPS. She denied that the complainant writing to the Chief had any effect on her decision.
94In cross-examination, Ms. Carey testified that applicants could be permanently screened out based on anything that could not be alleviated in their past. She agreed that it would be something serious in nature. She indicated that the complainant's charge in 1997 of impersonating a police officer, amongst other issues identified in the file, troubled her. Ms. Carey was not asked if she was aware of Sergeant Cocksedge's correspondence, dated December 18, 1997, regarding the complainant's 1997 charge.
95I find the evidence of both Staff Inspector Preston and Ms. Carey to be reasonable and credible. I find that their evidence is both internally consistent and consistent with the other oral and documentary evidence presented at the hearing. In the circumstances, I do not find, nor am I able to draw an inference, that Ms. Carey's permanent screening out of the complainant was intended as a reprisal for claiming rights under the Code.
96I have also carefully considered the reply evidence of Inspector Faul that he would have supported PC Slater's recommendation that the complainant be employed, and that he disagreed with Ms. Carey's conclusion that the complainant be permanently screened out. Inspector Faul testified that the complainant's file contained some areas of concern, but he also testified that PC Slater had alleviated those concerns, and he would have accepted those alleviations. With respect to the 1997 charge of impersonating a police officer, Inspector Faul specifically noted that PC Slater had alleviated that concern by talking with Sergeant Cocksedge
97Inspector Faul was asked about Staff Inspector Preston's concern that the complainant's history, as revealed in the file she reviewed, presented a picture of someone that would be difficult to supervise. Inspector Faul testified that it's "quite subjective" depending on Staff Inspector Preston's knowledge of the complainant and intimate knowledge of the content of the file. He testified that he couldn't say she's right or wrong, but in his experience, in the hiring of constables, he would be looking for somebody that is quite prepared to stand up for their own rights as well as the rights of others.
98In my view, it is possible for two inspectors to come to different conclusions concerning an applicant's file. It appears from the evidence that an application could be screened out by any one of a number of individuals in the process. As Inspector Faul acknowledged, the process is quite subjective, and he couldn't say if Staff Inspector Preston was right or wrong with respect to her concern. It also appears from the evidence that, when reviewing the complainant's application file, Staff Inspector Preston did not see some material, such as internal correspondence from Sergeant Cocksedge and correspondence from Staff Inspector Taverner, which it appears Inspector Faul was aware of.
99In the circumstances, I find the evidence of both Staff Inspector Preston and Inspector Faul to be reasonable and credible. I note, however, that Inspector Faul testified that he has known the complainant since early 2006 and that he's been very impressed with the complainant's dealings with his officers, other officers, and members of his communities, and his very high level enthusiasm and professionalism. In my view, Inspector Faul's observations of the complainant over the past approximately four years could have coloured his evaluation of the complainant to some extent.
100In any event, the Tribunal's jurisdiction is to determine if the complainant was subjected to reprisal pursuant to the Code, and not whether the recommendation that he not be considered or the decision to permanently screen him out was otherwise unfair. In all of the circumstances, I do not find that either the recommendation that the complainant not be considered in the application process or Ms. Carey's decision to permanently screen the complainant out of the application process were intended as reprisals. I do not find that the complainant was subjected to reprisal within the meaning of the Code.
101In final submissions, the complainant submitted that the respondents purport to rely on a record of offences (the complainant's speeding tickets) and that, in and of itself, would have been a breach of the Code. I note that the respondents referred to the complainant's speeding tickets in their initial response to the Complaint, prior to the Commission referring the Complaint to the Tribunal, and in their subsequent pleadings. In both his pleadings and opening submissions, the complainant was clear that the only issue before the Tribunal was reprisal. There was never any request to amend the Complaint to add record of offences as a ground. I therefore make no determination with respect to the ground of record of offences as this issue was not appropriately before me.
102For all of the above reasons, the Complaint is dismissed.
Dated at Toronto, this 18th day of January, 2011.
"Signed By"
Brian Eyolfson
Vice-chair