Alleyne v. Toronto (City), 2011 HRTO 560

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tejan Alleyne Applicant

-and-

City of Toronto Respondent

-and-

CUPE Local 79 Intervenor

DECISION

Adjudicator: Brian Cook Date: March 21, 2011 Citation: 2011 HRTO 560 Indexed as: Alleyne v. Toronto (City)

APPEARANCES BY

Tejan Alleyne, Applicant ) Osborne Barnwell, Counsel City of Toronto, Respondent ) Kerri Kitchura, Counsel CUPE Local 79, Intervenor ) Melissa Kronick, Counsel

1This is an Application filed in June 2008 under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination in employment on the ground of race. The Application was heard on February 7, 2011. The applicant self-identifies as an African-Canadian person.

2The applicant has been employed by the respondent since 1988. In 2003, the applicant was working as a Municipal Standards Officer (“MSO”) in the Mobile Unit in Scarborough.

3In 2006, he was interested in trying something new and asked about a transfer from the Mobile Unit to the Property Standards Office. He was advised that the only vacant MSO position in Property Standards was at a location on Eglinton Avenue West in Toronto. This was not as convenient a location for the applicant because it was a further commute from his home. However, he accepted the transfer in order to do something new and acquire new skills. At the time, he understood that he would likely be able to transfer back to the Scarborough office as an MSO in Property Standards after a short period. However, the applicant has never succeeded in getting transferred back to the Scarborough office. He believes that there is a discriminatory reason for this.

4In 2006, the applicant filed a grievance under the collective agreement between the City of Toronto and CUPE Local 79 (the “union”) about the fact that he had not succeeded in getting the sought-after transfer. The union ultimately decided that it would not pursue the grievance to arbitration.

5In the Application, the applicant named the City and the union as respondents. The City and the union filed separate Responses with supporting documents and authorities.

6Subsequent to this, the applicant retained Mr. Barnwell as his counsel. On July 14, 2010, Mr. Barnwell sent a letter to the Tribunal which, among other things, advised that the applicant wished to withdraw the Application as against the union. Unfortunately, this letter was not sent to the other parties until February 1, 2011, approximately one week before the hearing. When the union received the letter, it filed a Request to Intervene.

7At the hearing, the applicant confirmed that he wished to withdraw the Application as against the union. The applicant opposed the union’s request to intervene on the grounds that the union was now no longer involved as the dispute was only between the applicant and the City. The City supported the union’s intervention request. I noted that the terms of the collective agreement seemed to lie at the centre of many of the issues raised in the Application. In such circumstances, unions are typically granted intervenor status. I accordingly granted the union’s request to intervene.

8Prior to the hearing, the City had filed a Request for Order During Proceedings asking the Tribunal to dismiss the Application on the grounds that the applicant had not disclosed a prima facie case. In a Case Assessment Direction dated January 26, 2011, I directed as follows:

I am not prepared to decide the requests made by the respondents at this time. While it may be appropriate to have some discussion at the hearing about the merits of the Application, I would prefer to hear some evidence first.

The Tribunal has scheduled a one day hearing for February 7, 2011 to hear the Application.

I anticipate that the applicant will provide his evidence at the hearing. It would be helpful if there was one witness available for the respondents who can provide evidence relevant to the human rights issues raised in the Application.

Either before or after hearing this evidence, we will discuss whether it will be necessary to hear from any other witnesses. In regard to potential witnesses for the applicant, I note a letter of October 25, 2010 from Mr. Barnwell’s office which indicates that the applicant may want to call four other witnesses. The letter mentions sworn affidavits but I can not find these in the materials that have been filed with the Tribunal. Mr. Barnwell should provide a detailed witness statement for each proposed witness. This does not have to be in the form of a sworn affidavit but should be sent to the Tribunal and the respondents as soon as possible.

It is not necessary for any witnesses to be present for the morning of February 7, other than the applicant and the one witness for the respondents mentioned above. Any other prospective witnesses should be available for the afternoon in the event that it is necessary to hear from them.

9No further information was filed by the applicant in regard to witnesses.

10At the hearing, there was first some discussion about the terms of the Collective Agreement, noted below. The applicant then testified and was asked questions in cross-examination. The respondent then called Bill Blakes, currently a District Manager, who was also asked questions in cross-examination by the applicant’s counsel. The union did not ask any questions of either witness.

11Pursuant to the Case Assessment Direction, I then heard submissions from the parties regarding the further handling of the Application. The respondent asked that the Application be dismissed either because the applicant had not established a prima facie case, or because, pursuant to Rule 19A of the Tribunal’s Rules of Procedure, there was no reasonable prospect that the Application would succeed. The applicant submitted that there was clear evidence of discrimination by the respondent and that the Application should not be dismissed.

12In deciding how to deal with the Application I have considered the following questions:

a. Has the applicant established that there is a factual basis to any or all of his allegations?

b. If not, is there any reasonable prospect that a factual basis might be established if I heard from the additional witnesses identified by the applicant in advance of the hearing?

Background

13The allegations that dominate the Application concern events in 2006. At that time, the applicant had been working at the Eglinton Ave. West location for approximately three years. He submitted a transfer request to allow him to go back to the Scarborough office immediately after starting at the Eglinton Ave. West office. As noted, he wanted to continue working as an MSO in Property Standards, but wanted to do that work out of the Scarborough office because it was closer to his home.

14For the three years that he had been waiting for the transfer, he had been told that there were no vacancies at the Scarborough office to allow him to transfer, but that he was at or near the top of the transfer list, based on his seniority.

15In approximately November 2006, he learned that another MSO (referred to as “DS” in these reasons), with much less seniority, had been transferred from the Eglinton Ave. West location to the Property Standards office at the Scarborough location. DS accordingly obtained the position that the applicant wanted and that he had been waiting for three years to get. He felt that the transfer of DS was contrary to the collective agreement and, if it was not, that it was tainted by racism. DS was described by the parties as a White person.

16The respondents submit that the transfer of DS was completely in accordance with the collective agreement and that, in fact, the transfer process was driven entirely by the collective agreement.

The temporary to permanent process

17In 2006, the applicant was classified as a “permanent” employee. DS was classified as a “temporary” employee.

18In the negotiations giving rise to the 1999-2001 Collective Agreement, the City and the union recognized that there were a large number of temporary employees. It was agreed that, with some exceptions, temporary employees who had been continuously employed in the same position for at least two years would become permanent employees. A similar agreement was reached relative to the 2002-2004 Collective Agreement and relative to the 2005-2008 Collective Agreement. In respect of the latter the Letter of Intent reads, in part, as follows:

The Union and the City shall conduct a one time review of all existing assignments filled by temporary employees for the purpose of identifying the length of time that the temporary employee has been employed. Such review will be effective the date of ratification.

Upon completion of the review, any temporary position that has been filled continuously for longer than two (2) years will become a permanent position, unless the position is one to which a permanent employee has a claim or the position is expected to be eliminated in the near future. The most senior qualified temporary employee(s) in the classification within the Division will be offered the position as a permanent employee. In the event that the most senior qualified temporary employee declines, the position will then be offered to the next most senior qualified employee(s) in order of seniority until the position is filled.

It is understood that the job posting provisions of the Agreement will not apply in this situation.

[Emphasis added.]

19According to the respondent, the phrase “unless the position is one to which a permanent employee has a claim” refers to a situation where a permanent position exists which is normally filled by a permanent employee but is being filled temporarily by a temporary employee. This could arise due to a maternity or sick leave, for example.

20According to the respondent, DS was offered the permanent MSO position in Property Standards at the Scarborough office pursuant to the temporary-permanent conversion process. He had been doing that job for more than two years as a temporary employee and so was offered the position on a permanent basis.

21The applicant believes that the City did not interpret the language of the Letter of Intent correctly. He believes that the phrase, “unless the position is one to which a permanent employee has a claim”, applied to him because he was a permanent employee who had a claim to the position and had been waiting for such a position for three years. He believes that it is manifestly unfair that DS got the transfer because the applicant has greater seniority.

22At the hearing, Ms. Kronick advised, on a without prejudice basis, that the union did not dispute the City’s interpretation of the Letter of Intent on this point. She noted that the union had obtained a legal opinion on this issue before deciding that it would not pursue the grievance that the applicant filed. The legal opinion was filed by the union as part of its Response and does not support the applicant’s interpretation of the letter of intent.

23After some discussion at the hearing, Mr. Barnwell conceded that the correct interpretation of the collective agreement was not something that this Tribunal has jurisdiction to determine. However, he suggested that the process was in some way tainted by discrimination against the applicant on the ground of race.

24In support of this, the applicant argued that other temporary MSO’s were transferred to an entirely different department some months before DS was transferred. Based on his understanding of the relative seniority of these various individuals, he believed that DS should have been transferred too. If that had happened, he would not have ended up in the Property Standards position at the Scarborough location. The applicant submitted that the reason DS was not transferred had something to do with discrimination or at least favouritism towards DS, which then had an adverse affect on the applicant.

25Mr. Blake testified that the other MSO’s were transferred as part of the temporary-permanent conversion process and the review of positions that was conducted as part of that process. The jobs that they had been doing were ending and they had to post for jobs if they wished to continue working. Some of them were successful in obtaining jobs in other departments on this basis. Some no longer had employment with the City. DS was not required to post for other jobs because he had been doing a job continuously for over two years and so was eligible for the temporary to permanent transition.

26The applicant indicated that he questioned whether DS had really been doing the job for over two years. This concern arose from a conversation before the transfer occurred in which DS indicated that he had only started with the City in 2004. If that had been true, DS had been doing the job for less than two years. This allegation was investigated by the union and it was confirmed that DS in fact started with the City in 2003 and had in fact been doing the job for at least two years. Mr. Barnwell indicated that this was no longer an issue.

Conclusions regarding the allegations concerning the transfer of DS

27I can find nothing in the applicant’s testimony or in any of the other evidence in this case to suggest that the process regarding the transfer of DS was in any way tainted by discrimination.

28In my view, it is clear that the transfer of DS occurred pursuant to the Letter of Intent negotiated between the City and the union concerning the temporary to permanent transition process. The applicant was not part of that process. As the respondent conceded, it may be understandable that the applicant felt that the process was unfair because as a result of it a co-worker with much less seniority secured a position that the applicant wanted. However, to the extent that there was unfairness, it arises out of the collective bargaining process and there is no evidence that it was in any way related to discrimination.

29The applicant was unable to identify any further evidence that might shed any further light on this issue. In his disclosure documents, he had identified two other witnesses who might be relevant to this issue. However, it appears that they were simply being called to provide evidence as to DS’s employment start date. They were going to say that they had heard DS say that he had only been employed since 2004. It is clear that, if DS said this, he was in error, and, further, the applicant agreed that the evidence from these two witnesses would not be very helpful.

The process regarding JM

30The applicant alleges that another example of discrimination arose in regard to a transfer in 2008 involving another MSO, referred to as JM in these reasons. The parties described JM as a White person. In 2008, JM applied for a transfer to the Property Standards department at the Scarborough office. This was again the position that the applicant had been wanting for some years. Although JM had more seniority than the applicant, the applicant took issue with the transfer because he had been told that there were no vacancies in the Property Standards department in Scarborough and was therefore surprised that JM was able to transfer to that position. He was also concerned because JM told the applicant and others that Mr. Blakes had “encouraged” him to apply for the transfer. The applicant appears to believe that Mr. Blakes did this to further frustrate the applicant’s desired transfer to Scarborough. The applicant could not explain why JM would apply for a position that he did not want.

31In cross-examination, the applicant conceded that JM lives in Scarborough, which might explain why he wanted the transfer. As well, he agreed that it is also true that JM had been having some issues with his supervisor and that the transfer would have allowed him to have a different supervisor. The applicant however believes that the problem with the supervisor arose only after JM was “encouraged” to apply for the transfer although he agreed that he did not know the full history of the matter. He suspects that JM would not have applied for the transfer without the “encouragement”.

32The respondent referred to the transfer list and pointed out that at the time of JM’s transfer, there were two other people with more seniority than the applicant had who were on the transfer list and who also wanted to transfer to Scarborough. Accordingly, even if JM had not applied for the transfer, it appears that the applicant would not have been able to transfer to Scarborough at that time.

Conclusions regarding the allegations concerning JM’s transfer

33I can find nothing in the applicant’s testimony or in any of the other evidence in this case to suggest that the process regarding the transfer of JM was in any way tainted by discrimination. The applicant has not provided any examples or evidence of a link between the alleged events and his race.

34The applicant’s theory of discrimination appears to rely on a rather elaborate and implausible conspiracy. It seems highly unlikely to me that Mr. Blakes would encourage JM to transfer to the Scarborough position only to frustrate the applicant’s desire to get the same position, especially given that, after JM, there were still two other employees who wanted to transfer to Scarborough with more seniority than the applicant. As a result, the applicant would not be able to transfer until the other two employees were transferred or withdrew from the list. Even if the applicant’s theory about Mr. Blakes alleged involvement in JM’s transfer were true, it seems very unlikely that JM, an employee with thirty years seniority, would be induced to apply for a job he did not want. The evidence in fact supports that the JM appears to have had good reasons for seeking the transfer.

35The applicant suggested that his allegations would be shown to be true if JM was called to give evidence. The applicant had named JM as a possible witness in his disclosure documents. However, he had taken no steps to contact JM. He assumed that a summons might be required in order for JM to attend because he supposes that JM might be a “hostile witness” but had taken no steps to obtain a summons. Even if JM had been called as a witness, given the highly improbable nature of the allegations involving him, I find that his evidence would not have been relevant or necessary to my findings.

Other allegations

36As noted earlier, after Mr. Barnwell was retained by the applicant, he sent a letter to the Tribunal dated July 14, 2010, which was not sent to the other parties until February 2, 2011. The July 14, 2010 letter in turn references a July 19, 2005 letter written by the applicant. That letter was sent to the City’s Executive Director, Municipal Licensing and Standards. It sets out allegations of “discrimination, harassment, blatant favouritism” involving the applicant and other people in the office.

37The applicant alleges that he experienced reprisal for writing this letter. He also alleges that he has experienced general, continuing discrimination. At the hearing, he had an opportunity to provide evidence regarding these allegations. However, as noted in the July 14, 2010 letter, the applicant’s real complaint is that “managers and supervisors acted together to deny the Complainant a transfer for which he was entitled.”

38The respondent disputes the applicant’s allegations. The respondent also notes that the allegations dating back to 2005 and earlier were not raised in the Application and were not raised within one year of when the events are alleged to have occurred and that the Tribunal should accordingly not hear the allegations. Sections 34(1) and (2) of the Code state:

(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.

39The applicant argued that the earlier events were part of a series of incidents that have been ongoing since at least 2003 culminating in being denied the transfer he had requested as a result of the process concerning the transfers of DS and JM, discussed above.

40The July 14, 2010 letter which, as noted, was not received by the other parties until February 1, 2011, includes allegations that relate to events in the period from 2003 to 2005.

41The allegations in the July 2005 letter that directly concerned the applicant were that he was once told that he was required to attend a meeting but when he arrived there was only one other person present. When he made inquiries regarding seniority, he was immediately transferred to a different job.

42The applicant alleges that he has experienced continuing harassment and discrimination since 2005. He testified, as an example of this, that last summer he came to work early to get some paperwork done and was told by a supervisor that he should be doing his job on the road. Another example of alleged harassment arose when he was criticized by a supervisor for having a conversation with a co-worker. The applicant testified that the co-worker, who is white, was not criticized. In 2006, he claims that he was singled out for not booking out at the end of his shift. This was resolved through a grievance. At around the same time, he alleges that his mileage claim was questioned and a supervisor called him at home to ask about a file.

43It does not appear that these alleged events were a “series of events” within the meaning of section 34(1). In my view, for the purpose of section 34(1) a “series of events” must be connected and related: Bish v. Canadian Union of Public Employees, 2011 HRTO 221. I find that the alleged events here are not related or connected and involve different individuals and different circumstances. There is no explanation for why the applicant did not pursue the allegations in the July 2005 letter earlier, apart from the filing of grievances, and I am therefore not satisfied that the delay was incurred in good faith. See Cartier v. Securitas Canada, 2010 HRTO 546.

44Even if the incidents were a series of events within the meaning of section 34(1), the applicant has not established that the alleged events were related to discrimination on the ground of race. The incidents appear to me to be isolated incidents of a nature that are experienced by people in a workplace setting. The only common factor is that the incidents were experienced by a Black person. However, he has not established that his race played any role in the alleged 2003-2005 events.

45For all of these reasons, I find that the Application must be dismissed.