Bauer v. Toronto (City), 2011 HRTO 1628

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Harro Bauer

Applicant

-and-

City of Toronto

Respondent

• and -

Toronto Civic Employees’ Union, Local 416

Intervenor

DECISION

Adjudicator: David A. Wright

Date: August 30, 2011

Citation: 2011 HRTO 1628

Indexed as: Bauer v. Toronto (City)

APPEARANCES

Harro Bauer, Applicant ) Self-represented

City of Toronto, Respondent ) Michael Martosh, ) Counsel

Toronto Civic Employees’ Union, Local 416 ) Risa Pancer, Counsel

INTRODUCTION

1Harro Bauer, an ambulance attendant, was a union steward when his union went on strike in 2002. He crossed the picket line and worked during one of his strike shifts. He believed and was assured that his decision to work during the strike would be confidential. Other union members subsequently found out, however, and he says he was harassed and reprised against for not participating in the strike.

2Mr. Bauer filed this Application in 2009 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). He says that the Code ground of creed is engaged because his reasons for crossing the picket line in 2002 were connected with his Christian faith. The applicant states that although he opposed the 2002 strike on the basis that he believed it was contrary to the union members’ interests, the reason he crossed the picket line was because his faith prevented him from denying medical care for financial gain.

3In an Interim Decision, 2009 HRTO 2185, the Tribunal scheduled a preliminary hearing on the issue of whether the Application in fact engaged the ground of “creed” under the Code. While the Application potentially raises various issues about responsibilities of management under the Code and the scope of the ground of creed, I need not address these issues because I do not accept the applicant’s assertion that he crossed the picket line in 2002 because of his creed. On this basis, I find that the Code is not engaged and the Application is therefore dismissed.

HEARING

4The central question is whether the applicant crossed the picket line because of his religion or whether this is revisionist history. This turns upon credibility. l heard evidence through written statements and oral evidence over three hearing days in 2010. The parties made final submissions in writing which concluded in January 2011. The applicant testified, as did his work partner, Marc Bilz, and two other witnesses on his behalf. The respondent employer presented 12 witnesses. Where evidence was contested, the witnesses were cross-examined and I asked them questions.

FACTUAL BACKGROUND

5The applicant is a level one paramedic for the City of Toronto. His principal function is to do non-emergency transfers. He has worked as partner with Mr. Bilz for about 10 years.

6In 2002 the applicant and Mr. Bilz were union stewards for the intervenor, Toronto Civic Employees’ Union, Local 416 (the “union”). In that year, the union engaged in a legal strike. The strike was subject to an essential services agreement imposed by the Ontario Labour Relations Board (“OLRB”), pursuant to which paramedics were required to work three quarters of their shifts.

7The applicant had two “strike shifts” (shifts he was not required to work) during the 2002 strike. He worked the first of these two shifts. He did not work the second shift. After the strike, a list of bargaining unit members who had worked during the strike became public. Since that time, the applicant has experienced various forms of harassment in the workplace, including being called a “scab” and having his locker vandalized.

8The applicant has been a Christian all his life. His uncle, cousin and wife are all pastors leading congregations. For 10 years he has been a member of the Jesus Christ to God be the Glory Church, and he is a member and ex-executive of Horizons Inter Faith group which produces interfaith television programming. He states that he attends church regularly. He testified that he is generally private about his faith and does not talk about it in the workplace as he does not evangelize.

9The applicant testified that it is contrary to his faith to remove medical care for monetary reasons and cited various biblical verses to support that view. He noted the extensive role played by churches in building hospitals and other medical facilities.

10Mr. Bauer had two “strike shifts” during the 2002 strike: on June 26 and July 5, 2002. He testified that he worked during the first shift, on the basis of his concern about removing medical care to those in need. He said that he observed during that shift that it was quiet and there were only one or two calls that day as opposed to the usual seven or eight, since Toronto EMS did not do patient transfers during the strike. Accordingly, he testified, when he saw that needed medical care was not being denied, he did not work his second strike shift on July 5, 2002. Because needed medical care had not been denied in 2002, the applicant participated in the 2009 strike.

The Applicant’s Decision to Work in 2002

11It is undisputed that the applicant was opposed to the 2002 strike, made his opposition known, and that his public reasons for doing so were not related to his religion. He was concerned that a strike would lead to a loss of patient transfer work and jobs would be lost. On a union list serve, he and others, including Mr. Bilz, opposed the strike and took the position that it would be harmful to the union’s interests. He never referred to his religious beliefs in those posts.

12Mr. Bauer testified that before he became a paramedic, he decided that because of his beliefs he would not participate in a strike if one occurred. He stated that he was aware before the strike that there was an essential services agreement providing for 75% of scheduled ambulance workers to work each day, although he was not familiar with the details of how it came into being.

13The applicant testified that he had told Mr. Bilz, Mike Merriman, the ambulance unit chair of the union, and a colleague, Mr. Alexander, of his reasons for not participating in the strike. Each testified at the hearing.

14Mike Alexander, a friend of Mr. Bauer and co-worker until he retired in 2001, testified that he remembered Mr. Bauer saying that his reason for not participating in the strike was his religious beliefs. However, he did not have a clear recollection of when his discussions with Mr. Bauer about his reasons for not participating in the strike had occurred.

15Mr. Bilz testified that Mr. Bauer felt strongly that participation in a strike was inconsistent with being a Christian. He testified that they discussed Mr. Bauer’s religious beliefs, and that this was why Mr. Bauer did not strike. He testified that after discussions with the applicant, Mr. Bilz decided not to participate in the strike either because the union was making judgment errors in withdrawing services. He testified that both he and Mr. Bauer spoke with others and encouraged them not to participate in the strike. Both told their colleagues that striking would harm the union’s public image and would not lead to gains for the union.

16Mr. Bilz testified that he spoke to Mr. Bauer during the strike and did not remember Mr. Bauer changing his views about withdrawing services. He stated that both were aware that the strike was “as useless as we thought it might be” and it was a bad idea to withdraw services from the public.

17Mr. Merriman testified that Mr. Bauer had advised him of his religious beliefs and concerns about withdrawing services to the public before the strike. He said that when contract negotiations were breaking down the applicant was “wrestling with going on strike” and said that he was concerned that people could die if ambulance workers struck.

Signing the Application to Work

18The City required employees who intended to cross the picket line and work during the strike to complete and sign an application to that effect. Steve Tyukodi, who was a District Supervisor, obtained Mr. Bauer and Mr. Bilz’s signatures on the relevant agreement during their first strike shift.

19Mr. Bauer testified that he was not aware that the shift he was working was a strike shift. He testified that Mr. Tyukodi came around and asked “everyone” if they would sign an agreement to work during the strike. He said that Mr. Tyukodi simply asked them to sign the form and they did. Mr. Bilz remembered asking to sign the form and very little discussion with Mr. Tyukodi when he came to meet with them.

20Mr. Tyukodi testified that Mr. Bauer and Mr. Bilz attended for a shift for which they were scheduled to be on strike. He was asked by his manager to have them sign the form. He testified that he explained to them that if they wanted to work, they had to sign the form. There was a discussion between them. Mr. Tyukodi, who knew that they were union stewards, asked if they understood what they were doing. Mr. Bauer, according to Mr. Tyukodi, said something to the effect that he was not going to lose money for this union executive. Mr. Tyukodi remembers this clearly because of his surprise that two union stewards would cross the picket line, and because he remembers returning to the office and discussing it with other supervisors, who were also “astounded” that they took the position they had.

21Mr. Bilz testified that he had already indicated that he would cross the picket line. He said he attended for the shift and told managers he wanted to work. Mr. Bauer and Mr. Bilz deny the comment about not losing money for this union executive.

Discussions With Management Representatives After the Strike

22The parties agree that Mr. Bauer told management, in 2009, before this Application was filed, that his opposition was based on creed. Mr. Bauer, however, alleges that he raised the fact earlier with various management representatives: Ron Kelusky, Monica Edwards, Sandra Cuff, Rob Hughes and Kerry Lehmann. The management representatives deny that he did so and the respondent says 2009 was the first time creed was raised.

23Ron Kelusky was the General Manager of Toronto EMS at the relevant time. In August 2002, he met with Mr. Bauer and Mr. Bilz about their concerns about harassment. Mr. Bauer and Mr. Bilz say that he raised the creed-based nature of his objection to the strike during those meetings. Mr. Kelusky says that Mr. Bauer did not mention his religion. Mr. Kelusky exchanged various e-mails with other management representatives and provided Mr. Bauer and Mr. Bilz a letter summarizing the actions the city took. None of them refer to the applicant’s religion.

24In September of 2002, Monica Edwards, a human resources consultant employed by the City who worked in the human rights and diversity office, spoke to Mr. Bauer and Mr. Bilz about their allegations of harassment. The applicant and Mr. Bilz say he told Ms. Edwards that his opposition to the strike was based on creed. Ms. Edwards says he did not say anything about his creed.

25Prior to their face-to-face meeting, Ms. Edwards asked Mr. Bauer to provide a written statement, which he did and signed. The two-page statement of events makes no mention of his creed being the reason he did not participate in the strike.

26Ms. Edwards made extensive notes of the conversations, in accordance with her usual practice, which she says attempted to record what was said verbatim as much as possible. The notes reflect Mr. Bilz saying, “Harro and I did this for political reasons. Very upset about the way things went down. No consultation or input from the shop stewards.” The notes do not reflect Mr. Bauer saying anything about creed. Mr. Bauer states there are various errors in these notes, but has been unable to point to other significant omissions.

27The notes do suggest that Ms. Edwards told the men that they had the right to file a union grievance or lodge a complaint with the Ontario Human Rights Commission. Mr. Bauer argues that this suggests that she knew it was based on creed. Ms. Edwards testified that she generally tells individuals about the complaint options available to them including a human rights complaint, even if she believes the matter does not fall under the Code. Ms. Edwards testified that since she works for the City, it is helpful for individuals to hear from another source that personal harassment, which is what she considered this, is not covered by the Code. Ms. Edwards prepared a document entitled “Human Rights Enquiry Record”, which has a column entitled “Ground”, which includes Code grounds and others. It is marked “Personal Harassment”. Ms. Edwards testified that she would have marked “Creed” if the applicant had raised it.

28In January of 2006, Sandra Cuff, a Senior Human Resources Consultant employed by the respondent, met with Mr. Bilz and Mr. Bauer about various issues they said stemmed from their crossing of the picket line. Mr. Bilz testified that Mr. Bauer stated during this meeting that he had refused to withhold services because of his religious beliefs. Mr. Bauer did not testify about this discussion. Ms. Cuff’s notes of the meeting make no mention of Mr. Bauer raising his creed. Ms. Cuff said she would have included a reference to the creed issue if it had been raised.

29Rob Hughes was an operations supervisor who was a health and safety representative. In March 2008 Mr. Hughes was called to attend when Mr. Bilz and Mr. Bauer staged a work refusal under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 relating to what they said was ongoing harassment. Mr. Bilz said that over a period of two hours Mr. Bauer discussed his religious beliefs with Mr. Hughes. Mr. Bauer did not testify about this discussion. Mr. Hughes testified that Mr. Bauer’s religion was never mentioned.

30Kerry Lehmann was Mr. Bauer’s supervisor in 2009. In May of 2009, she met with Mr. Bauer for about an hour about his ongoing concerns about harassment. She took notes of this meeting, which have since been lost for reasons she cannot explain. Her recollection is that Mr. Bauer did not raise the issue of creed at that meeting. Mr. Bauer states that he did.

31Dean Lynden was a district supervisor in 2002. In August of that year, Mr. Bauer reported to him that his locker and that of Mr. Bilz had been vandalized. Mr. Lynden investigated that complaint. Mr. Lynden testified that Mr. Bauer did not mention his creed. Although he was not positive, his recollection is that the reason Mr. Bauer gave for not participating in the strike was that he could not afford it and did not believe in it.

32In late 2002 and early 2003, Mike Wiseman investigated complaints made by Mr. Bauer and Mr. Bilz. He spoke and met with them on numerous occasions. He testified that on none of these occasions did Mr. Bauer mention that his non-participation in the strike was related to his creed, and Mr. Bauer does not dispute this.

33In April 2007 Mr. Bauer and Mr. Bilz drafted a document entitled “Summary of Harassment Issues Concerning Harro Bauer and Marc Bilz”. It contains no mention of Mr. Bauer’s creed and begins as follows:

During and before the 416 strike we took the position that the strike was placing the transfers in danger of being replaced by private services. We were stewarts [sic] at the time, though we took some flak [sic] no one was sure if we had signed to work or not so it was minimal.

In cross-examination, Mr. Bauer said he did not include his religion or creed because he “wanted this to be settled quietly”.

CREDIBILITY

34This case depends on an assessment of the witnesses’ credibility. The accepted approach to making credibility determinations was set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). At pp. 356-357, the British Columbia Court of Appeal stated:

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

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

35Applying this approach, I do not accept that Mr. Bauer’s faith was a reason for his decision not to strike in 2002. The evidence given by Mr. Bauer and Mr. Bilz is not consistent with the surrounding conditions and what is reasonable in those circumstances.

36The evidence that creed was a reason for not striking in 2002 is inconsistent with all of the written documentation, including documents prepared by Mr. Bauer and Mr. Bilz. He prepared two summaries of his concerns, in 2002 and 2007, which make no reference to any faith-based reasons for not participating. He suggests that this was not written down because of his desire to keep his faith-based reasons private and not publicize them, but at the same time suggests he told various management representatives of them. He says he did so despite the fact that he complained actively and vociferously about the manner his co-workers were treating him. As Mr. Bauer describes it, he was willing to be open about his religious beliefs orally with managers, but not in writing when he summarized his concerns. This is not credible. Moreover, the applicant has provided no reason why he would have been willing to tell certain managers, but not Mr. Wiseman who had several meetings with him and Mr. Bilz and conducted an extensive investigation, or Gary Thorne, who was assigned to be a “contact person” if Mr. Bauer had any concerns.

37I accept the evidence of each respondent witness that Mr. Bauer did not raise the issue of his creed with them during the meetings they discussed. The notes of Ms. Edwards and Ms. Cuff were detailed, and there is no reason why they would have left out this fact or take note of the other aspects of the allegations and not this one. I accept Ms. Edwards’s evidence that the reason she referred Mr. Bauer and Mr. Bilz to the Commission was because this was her standard practice in circumstances where an employee alleged personal harassment.

38I find that during the initial meeting with Mr. Tyukodi, Mr. Bauer said that he would not lose money for this union executive. In accepting Mr. Tyukodi’s evidence, I note first the conflict between Mr. Bauer’s and Mr. Tyukodi's evidence about how he came to be working during one of his strike shifts. Mr. Bauer said that he was not aware it was a strike shift and that Mr. Tyukodi was asking all the employees if they would cross the picket line. Mr. Tyukodi says that he was called because the applicant and Mr. Bilz had asked to work during the strike and it was not management’s practice. Mr. Bilz’s evidence supports Mr. Tyukodi’s evidence, since he testified that he had asked, rather than been asked, to sign the agreement.

39Mr. Tyukodi explained that he remembered the conversation in detail, despite it being so long ago, because he was so surprised that a union steward was crossing the picket line, and remembered discussing this with the other managers when he returned. This evidence was reasonable and compelling.

40In light of all these findings, I cannot find that his faith was one of the reasons for the applicant’s decision to cross the picket line, despite the supporting evidence of Mr. Bilz, Mr. Merriman and Mr. Alexander.

41Mr. Alexander’s evidence was unhelpful, because he could not remember in detail when Mr. Bauer had told him of his reasons for crossing the picket line. I have rejected the evidence of Mr. Bauer and Mr. Bilz where it conflicts with the evidence of the respondents, and that gives me considerable reason to doubt that evidence where it relates to the critical issue of Mr. Bauer’s reason for working in 2002, about which the respondent has no knowledge.

42Mr. Merriman’s description was of Mr. Bauer “wrestling” with the decision of whether to strike or not as the strike approached. Mr. Bauer stated that he knew as soon as he started working in the EMS that he would not strike. This contradiction casts further doubt on the evidence.

43I do not accept Mr. Bauer’s testimony that he worked the second of his two strike shifts because he realized he was not denying services to the public contrary to his religious beliefs. First, the applicant provided no valid explanation of why he did not investigate or accept, before the first shift, that the essential services legislation and agreement imposed by the OLRB would ensure medical care. If the applicant was so concerned to ensure that he would only cross the picket line if he was denying medical care to those in need, why was the judgment of the Legislature and the Chair of the OLRB not worth investigating or sufficient? Moreover, despite the fact that he said he had many conversations with Mr. Bilz about his actions, Mr. Bilz had no knowledge or recollections of Mr. Bauer changing his view that striking would deprive medical care to those in need.

44I find that Mr. Bauer’s reasons for working during his strike shift were those he stated publicly: he was opposed to the strike and concerned about its effect on patient transfers. It was not out of a concern about withdrawing services to those in need. The applicant’s reasons for working his second shift were more likely that he became aware during the first shift that there were no transfers being done in any event and decided not to risk the ire of other union members by being seen to work on a strike shift.

45For all these reasons, I find that the Application does not raise the ground of creed under the Code.

ORDER

46The Application is dismissed.