Rustem Berisa v. City of Toronto, 2011 HRTO 912

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rustem Berisa

Complainant

• and -

City of Toronto, John Crilly, Toby Druce, Boris Rosolak, Nick Flora, Foster Cockburn, Al Cormier, Melanie Brown, Joe Briskos, Liam Quinn

Respondents

DECISION

Adjudicator: Kaye Joachim

Date: May 10, 2011

Citation: 2011 HRTO 912

Indexed as: Berisa v. Toronto (City)

Appearances

)

Rustem Berisa, complainant )Susan Ursel, counsel

City of Toronto, Toby Druce, Boris Rosolak, Nick Flora, )

Foster Cockburn, Al Cormier, Melanie Brown, Joe Briskos, ) Omo Akintan, counsel

Liam Quinn, Respondents )

John Crilly, Respondent )no one appearing

1This is a complaint referred by the Ontario Human Rights Commission (the “Commission”) under the old Part IV of the Human Rights Code in 2007.

2The Complainant, who self-identifies as a Canadian-Albanian originally from Yugoslavia alleges that he experienced discrimination and harassment at work as a result of his ancestry and ethnic origin and because he was perceived to be of the Muslim faith, contrary to sections 5(1) and 5(2) of the Code. He claims that he brought his concerns to the attention of his superiors and that they failed to take steps to prevent the ongoing harassment and discrimination. He also alleges that he experienced negative workplace consequences as a result of filing this human rights complaint, contrary to section 8 of the Code.

3The respondents deny that any of the alleged harassing events occurred and that, in the two instances that the complainant actually raised Code-related concerns, management responded promptly and appropriately. The respondents deny taking any actions to retaliate against the complainant after he filed his human rights complaint.

4This proceeding took place over 14 days from January 2009 to October 2010. Final argument following written submissions was heard in March 2011. There was an extended break during the proceedings, on consent.

PARTIES NOT IN ATTENDANCE THROUGHOUT THE HEARING

5The Ontario Human Rights Commission, initially a party to the proceedings was granted leave to withdraw from the proceedings in April 2010 and was removed from the style of cause.

6The personal respondent John Crilly was given notice of all the dates of the hearing and attended to give evidence. The parties attempted to send him the written final argument and were unable to reach him at his last known address. The Tribunal’s attempts to reach him at his last known address were also unsuccessful. I am satisfied that Mr. Crilly had adequate notice of these proceedings, and chose to change his address without notifying the Tribunal. Therefore, he remains a party to these proceedings.

PROCEDURAL AGREEMENT TO PERMIT AFFIDAVIT EVIDENCE

7On May 10, 2010 the parties advised that they were in agreement that the following witnesses’ affidavits could be tendered without cross examination: Gord Beasley, Sean Shipley, Aldo Supino, Noorjahan Bala, Qadeem Hamadi and Nick Flora. My reasons for agreeing to this procedure are as follows:

8The Tribunal hearing began in January 2009. Evidence was heard on January 22, 23, 30, February 5, 6, April 27, May 4, 19 and 22, 2009. On direction from the Tribunal, the respondent filed affidavits of proposed evidence in advance of the hearing, with the intention that the witness’s affidavit would constitute their evidence in chief, and subject to minor clarifying question, would proceed directly to cross examination. In accordance with this direction, I heard the evidence of the following respondents’ witnesses: Bill Cerovic, Foster Cockburn, Wayne Horton, Al Cormier, Liam Quinn, Melanie Brown, Carl Hornelhert and John Crilly.

9In my view, the cross examination of these witnesses (apart from John Crilly) did not effectively challenge their evidence, which essentially consisted in the denial of the applicant’s evidence. It was evident to me that the applicant’s counsel had no basis to challenge their evidence, except that their evidence contradicted the applicant’s and that to admit the allegations made by the applicant would be detrimental to their career.

10I did not find the cross examination of these witnesses (apart from John Crilly) to be helpful to these proceedings.

11After May 22, 2009, the hearing was held in abeyance on the consent of the parties based on the respondents’ counsel’s parental leave and the applicant’s impending surgery. The parties agreed to continue the hearing on April 27, 28, May 4, 5, 13, 14, 20, 21, and June 17 and 18, 2010.

12Due to inadvertence, the applicant’s counsel’s law firm did not maintain a record of the resumption dates with the result that the applicant and applicant’s counsel did not attend on April 27, 2010. The hearing for April 27 and 28, 2010 was adjourned and a conference call held on April 27, 2010 to determine next steps.

13Applicant’s counsel indicated that she was no longer available on any of the previously scheduled dates except June 17, 2010. The respondents’ counsel opposed the cancellation of any further dates on the basis that the respondents have been put to considerable expense and inconvenience in preparing for the hearing and maintaining the scheduled dates. Further, the events giving rise to the Application date back to 1998 and the respondents would be prejudiced by any further delay. Thus, the respondents’ counsel opposed any further cancellation of dates.

14Alternatively, if dates needed to be cancelled, the respondents proposed relying upon detailed will says of some of their witnesses and calling only the key respondent witnesses and the applicant’s reply evidence, so that the evidence could still be completed by June 18, 2010. The parties agreed to discuss this possibility between them, failing which I would make a ruling at the next scheduled conference call on May 10, 2010.

15Having balanced the prejudice to the respondents in further delaying the hearing against the applicant’s counsel’s unavailability due to inadvertence, I ruled that I would adjourn the May 4, 5, 13, 14 hearing dates in order to give the complainant’s counsel time to rearrange her schedule to continue on May 20, 21, June 17 and 18, 2010.

16As stated above, the parties agreed to permit the introduction of some affidavits without cross examination in order to complete the hearing in the remaining days scheduled. I permitted this arrangement as I was satisfied that the cross examination of these witnesses was not necessary to the full and fair resolution of the issues in this Application.

THE COMPLAINANT’S ALLEGATIONS

17The complainant began working as an Assistant Hostel Supervisor (later renamed Client Services Worker) with the Shelter, Housing and Support Division of the City of Toronto in 1999. He worked at Seaton House, a City hostel for homeless men.

18The complainant alleges that during his initial interview, one of the members of the interview panel, Toby Druce, asked him how his religion would affect him.

19The complainant alleges that while at Seaton House several employees, including the respondents John Crilly, Nick Flora, Foster Cockburn, Al Cormier, Melanie Brown, and Liam Quinn made insulting comments about his ethnic origin and presumed Muslim creed.

20John Crilly, a shift supervisor, allegedly constantly berated the complainant by calling him a stupid fucking immigrant, an Iranian or fucking terrorist, a KGB and a piece of shit. Mr. Crilly allegedly denigrated the complainant’s qualifications because they were obtained in Albania and told him that he should “kiss his (Crilly’s) ass” for being permitted to immigrate to Canada. On one occasion Mr. Crilly allegedly told him he should bring his wife in to do his share of the laundry. On another occasion Mr. Crilly allegedly said to him that “only fucking immigrants buy Ford Tempos.” Mr. Crilly is alleged to have called him a “fucking immigrant” on another occasion as well. On two occasions Mr. Crilly allegedly assaulted him for standing up to his racism. In addition, Crilly repeatedly asked Berisa to do tasks that were not part of his job. This harassment is alleged to have occurred between 1999 and March 2001.

21Nick Flora, a shop steward allegedly called the complainant an “Iranian terrorist” a member of the KGB, and commented that he would be arrested if he attempted to travel to the United States. These comments persisted from 1999 through the fall of 2001. In the context of fighting between Macedonian and Albanians in the former Republic of Yugoslavia, Mr. Flora is alleged to have said that if the Serbians had killed all of the Albanians there would be no problems today. Mr. Flora also allegedly failed to properly deal with the complainant’s harassment grievances.

22Liam Quinn, a client services worker, is alleged to have said, on September 11, 2001 following the destruction of the World Trade Centre, that as member of the Canadian Reserves, he intended to go and kill all those Muslims, while making a motion as though holding a machine gun and shooting the complainant. He allegedly wound up the clients to such a pitch that another worker, Nala B, sought refugee behind the locked reception area.

23Foster Cockburn is alleged to have to have called the complainant a stupid fucking immigrant, told him to go back to his country and called him a piece of shit. In addition, on September 12, 2001, Mr. Cockburn allegedly said that as good Christians were killed in Muslim attacks, he would kill Muslims in return.

24Al Cormier, a client services worker, is also alleged to have been present on September 12, 2001 when Mr. Cockburn made the comments about killing Muslims and upon leaving the area, made a motion of having a gun in his hand and pretended to shoot the complainant.

25Melanie Brown, a client services worker, is alleged to have berated the complainant after reading a newspaper account in late September 2001 of monuments being destroyed in Afghanistan by repeatedly asking “What are you Muslims doing…?” and stating “ you are an Albanian, you are from there”.

26Dan Anstett, program supervisor is alleged to have stated to the complainant that because he was Muslim he had trouble dealing with female employees and lesbian, gay and transgendered clients. In addition, Mr. Anstett allegedly failed to properly address the situation when urine and feces were left on the complainant’s chair in 2002 with a note stating “welcome fucking idiot, ha ha.”

27The complainant testified that after each incident he immediately spoke to Boris Rosolak, Manager of Seaton House, and Toby Druce, program supervisor, Alex Blair, shift supervisor and/or Dan Anstett program supervisor and that they failed to take any action to redress these incidents. He also sought assistance from Qadeem Hamadi, a program supervisor and practising Muslim who allegedly refused to help him because he was afraid in the aftermath of September 11, 2001. Another shift supervisor, Gord Beasley also allegedly failed to take action.

28The respondents denied all of the above allegations except one. They acknowledged that Mr. Crilly on one occasion did say to the applicant that “only fucking immigrants buy Ford Tempos.” They assert that, having regard to the context in which the comment was made, and having advised Mr. Crilly of the inappropriateness of the comment, this isolated incident (hereinafter referred to as the “Ford Tempo” incident) does not amount to a breach of the Code.

ASSESSMENT OF THE APPLICANT’S CREDIBILITY

29I have concluded that the complainant’s evidence is not reliable and, except where there is confirming evidence, I have not accepted any of the complainant’s evidence.

30This is not a situation which can be explained by fading or mistaken memories. One does not forget calling someone a fucking immigrant, or mistakenly threatening to kill all Muslims. The complainant’s evidence (except for the Ford Tempo incident) conflicted with every respondent witness, as well the written notes of those witnesses recorded at the time. Even the applicant’s own notes written at the time, made no mention of any of the above allegations.

31The complainant was not reticent in putting his work-related concerns in writing, yet not one of the written complaints or responses he filed makes any mention of any of the above allegations. The complainant did complain of harassment by John Crilly, but the written documentation at the time does not reveal any ethnic or creed based form of harassment. Rather the written documentation relates to complaints about the legitimacy of Mr. Crilly’s authority to direct the complainant.

32Some of the above allegations were alleged to have taken place in the presence of other colleagues, such as Carl Hornelhert and Noojahan Bala and those witnesses specifically denied the complainant’s version of events, except in the case of “Ford Tempo incident.” The complainant did not present one witness who could confirm the above allegations.

33It is not credible and in keeping with the preponderance of probabilities that the Manager of the Seaton House (Rosolak), and three program managers (Druce, Hamadi, Anstett) the most senior members of management in charge of a diverse government organization, repeatedly refused to address allegations that members of their staff were making the vile and obnoxious comments described above and that one of them (Anstett) made grossly inappropriate and stereotypical comments about Muslims. It is also not likely that Mr. Druce openly questioned whether the complainant's religion would affect his work in an interview in which a union member and steward was present. That steward, Nick Flora, although a respondent in this proceeding, would have had no reason at that time not to challenge such an offensive question.

34It is worth noting that the Manager, Boris Rosolak, self-identifies as Yugoslavian Canadian, and the program supervisor, Qadeem Hamadi self-identifies as a devout Muslim. While members of minority ethnic groups are not immune from engaging in harassment and discrimination, or in refusing to take action against it, the commitment of the above individuals as well as Druce and Anstett to maintaining a diverse and respectful workplace was overwhelming.

35Written notes taken by various respondent witnesses at the time describe the complainant’s demeanour and responses during meetings in a manner which is consistent with my own observations of the complainant during his oral evidence. The complainant refused to acknowledge that he might ever have been in the wrong, he engaged in lengthy explanations and justifications, and he consistently pointed out what he believed was a breach of the rules or policies by others as an excuse not to accept direction from those persons. In particular, his description of how he engaged in techniques to defend himself against Crilly is inconsistent with the written notes of Toby Druce on March 3, 2001.

36Also, the complainant readily altered his version of events throughout the hearing. In his complaint he mentioned a soiled chair in March 2002. At the hearing he embellished this to include a sign allegedly left on the chair denigrating him. The complainant’s failure to mention the message on the chair prior to the hearing is not believable. The alleged sign was not seen by the caretaker who was called to get rid of the chair, a witness called by the complainant.

37Similarly, he altered his evidence regarding the Ford Tempo incident, inventing a second similar incident. This was contradicted by the complainant’s own witness, Carl Hornelhert.

ASSESSMENT OF OTHER WITNESSES CREDIBILITY

John Crilly

38Mr. Crilly is a personal respondent. He testified at the hearing as a witness for the City respondent and did not file his own response or make any submissions on his own behalf. Mr. Crilly’s employment was terminated by the City and he candidly admitted that he was a recovering alcoholic and drug addict who had used crack cocaine towards the end of his employment tenure. He was fairly defensive in the manner in which he gave his evidence and attempted to minimize any friction he had with the applicant. He was inconsistent in his evidence with respect to whether he ever used the term “fucking immigrant” as opposed to a “fucking idiot” in respect of the Ford Tempo incident and on this point I found his evidence not believable. At the same time he admitted that he had been reprimanded by Mr. Rosolak for calling the applicant a “fucking immigrant” and acknowledged to Mr. Rosolak that he had been in the wrong, which indicates that he probably did use the word “immigrant” rather than “idiot” on that occasion. I find that Mr. Crilly was not a credible witness.

39Thus, in those cases where the applicant alleges that Mr. Crilly made derogatory remarks, I am left with the evidence of two incredible witnesses. In these circumstances, I rely upon the onus of proof and conclude that the complainant has not established on a balance of probabilities that Mr. Crilly made other ethnic based comments to the applicant (other than the “fucking immigrant” comment).

Toby Druce

40Mr. Toby Druce is a personal respondent. His evidence was mostly reliable and supported by written notes that he made at the time. The only area where his evidence was not reliable relates to when the applicant first complained about the “fucking immigrant” comment and how Mr. Druce dealt with this. While Mr. Druce’s evidence was vague and inconsistent on this point, I conclude that this was due more to the passage of time (the event having occurred in February 2001 and the hearing being held in 2008 and 2009) than any deliberate attempt to deceive. The complainant relied on statements allegedly made by this witness to a Commission investigator in February 2006. I do not find this statement useful. It was not a verbatim account; the witness was not given an opportunity to review his notes to refresh his memory, was not given an opportunity to review the investigator’s notes, and was not asked to sign the statement.

Boris Rosolak

41Mr. Rosolak is a personal respondent. His evidence was given in a straightforward manner and was consistent with notes taken by him at the time. There was an attempt to discredit his evidence based on a written statement taken by a Commission investigator in February 2006. Mr. Rosolak did sign the statement and made several notations where it was inaccurate. There were some matters that he did not indicate were inaccurate which appeared to contradict his evidence given at the hearing. I am not overly concerned by these inconsistencies. They are consistent with the fact that Mr. Rosolak was asked questions by the Commission investigator out of context, without any date attached, with inaccurate references to notes, and without having an opportunity to review his notes or the applicant’s file, some four years after the events.

42In my view, it is not credible that Mr. Rosolak would have failed to investigate these overly racist comments when he had already demonstrated that he took such alleged comments very seriously (i.e. the Ford Tempo incident, described below).

Other Witnesses

43Coworkers Foster Cockburn, Al Cormier, Melanie Brown and Liam Quinn all testified with passion that they would never have made the comments alleged to have been made by them and that they were shocked and dismayed by the allegations. The handwritten notes of Mr. Rosolak dated January 30, 2002, immediately following receipt of the human rights complaint; confirm their immediate outrage and denial of the allegations. Their evidence was entirely believable and in keeping with the preponderance of probabilities that front line workers with the most marginalized members of society, in a diverse working environment would not have made such comments and understood that such comments would have been cause for justifiable and severe discipline.

44While the evidence of Gord Beasley, Nick Flora or Qadeem Hamadi was admitted by affidavit (on agreement) without cross examination, their evidence was entirely consistent with the evidence of all other respondent witnesses.

45I conclude that whatever the inconsistencies in the respondents’ witnesses they were far more credible than the applicant.

46Accordingly, where the allegations of discrimination rest entirely on the complainant’s evidence, I do not accept his evidence as reliable and credible.

CONCLUSION ON ALLEGATIONS OF HARASSMENT AND DISCRIMINATION

47There are some allegations which are corroborated by other witnesses and I accept those events as follows:

The Fucking Immigrant Comment

48On March 3, 2001 the complainant reported to a shift supervisor that John Crilly had assaulted him. The complainant testified that Mr. Crilly also called him a fucking stupid immigrant during the course of this attack.

49Toby Druce, program manager gathered the witness reports to this incident. The complainant described this incident as Mr. Crilly grabbing his shoulder in an angry manner. Mr. Crilly reported touching the complainant’s shoulder. There were no witnesses to the event. The written statements of the complainant and Mr. Crilly mentioned that the precipitating event was Mr. Crilly giving the complainant directions about whether condiments should be left out in the open for the clients to help themselves or whether they should be kept restricted and handed out upon request. The complainant’s written statement at the time makes no mention of any ethnic based slurs. The complainant initially related his complaint to three employees. The witness statements of these employees do not record that the applicant made any allegations of an ethnic slur.

50The employer decided not to take any disciplinary action against Mr. Crilly over this event. The complainant decided to pursue the matter and alleged that he was being harassed by Mr. Crilly.

51During the investigation of the harassment allegations, the complainant met with Boris Rosolak, Manager of Seaton House, and complained that Mr. Crilly had been harassing him for some time. When asked for particulars, the complainant related various events, including that Crilly had previously and often denigrated his educational qualifications, that Crilly had once said that “only stupid fucking immigrants buy Ford Tempos” and that Crilly had once told the complainant to get his wife to come and show him how to use the laundry machines at Seaton House. Mr. Rosolak’s notes indicate other complaints but none of these engage any Code-related grounds.

52Of the various allegations made by the complainant, Mr. Rosolak decided that two were worthy of further investigation: the “fucking immigrant” comment and the laundry incident. Mr. Rosolak spoke to Mr. Crilly.

53Mr. Crilly reported to Mr. Rosolak that he had made a comment about the Ford Tempo to the complainant when the complainant’s car broke down admitting that he said only “fucking idiots.” Mr. Crilly attempted to explain himself by saying the he himself had previously owned a Ford Tempo and felt he was mocking himself. Mr. Rosolak advised him that whether he said fucking idiot or fucking immigrant, neither was acceptable and Mr. Crilly agreed that his conduct was inappropriate.

54Mr. Rosolak advised Mr. Crilly that if any further complaints were received of this nature, whether by Mr. Berisa or by any other worker, there would be further disciplinary action. Mr. Rosolak testified that he considered his discussion with Mr. Crilly to amount to a verbal warning.

55Mr. Rosolak testified that he advised the complainant that he had spoken to Mr. Crilly about the fucking immigrant comment and that he was to report any further incidents by Mr. Crilly to him. The complainant denied that Mr. Rosolak reported back to him on his investigation. I note that in his statement to the Commission Mr. Rosolak stated that he did not report back to the complainant and also, that Mr. Rosolak had no notes confirming that he had spoken with the complainant.

56Having regard to the relative credibility of the witnesses, I accept Mr. Rosolak’s evidence on this point. I have already explained why I have given little weight to the Commission witness statements. Having regard to the fact that Mr. Rosolak believed the Ford Tempo incident was serious enough to warrant a second and personal investigation, I find that it is more likely than not that he would have reported back to the complainant with the results of his investigation.

The Laundry Incident

57With respect to the laundry incident and the reference to the complainant’s wife, Mr. Rosolak concluded that in the context in which the statement was made, it did not rise to the level of a Code-related harassment.

Educational Qualifications

58As stated above, the complainant complained that Mr. Crilly constantly denigrated his educational qualifications. In his view, they were degraded because the complainant was from Albania.

59Toby Druce testified that “I did think John Crilly put more value on people with lived experience, he did not have the same level of appreciation for those with an education.” He also confirmed that John Crilly did generally make comments about staff’s education and stated that he thought John Crilly made comments regarding the role of the CSW and that previous training was not relevant to the role of CSW.

60Boris Rosolak confirmed that the Complainant had raised the issue of John Crilly’s disrespect of the complainant’s education to him, that it was not his experience that the Complainant bragged or used his credentials inappropriately, but that he took no action because the allegations about the education comments were “in close proximity” to the Tempo incident and that he felt his warning to John Crilly about the “stupid fucking immigrant” comment would be sufficient. He also confirmed on cross that he had not specifically told the Complainant about how he had dealt with the matter of the education comments.

61At the step one meeting into the harassment grievance, Mr. Rosolak advised the complainant that his allegations of harassment by Mr. Crilly were not substantiated and that the employer viewed the problem as emanating from the complainant’s refusal to accept direction from shift supervisors. The employer noted that shift supervisors, other than Mr. Crilly, had expressed similar concerns about the complainant. Although the complainant did not agree with the employer’s view, he did not pursue his harassment grievance.

Conclusions on Fucking Immigrant Comment

62In my view, the employer’s response to Mr. Crilly’s admission that he stated to the complainant that “only stupid fucking immigrants buy Ford Tempos” fell within the bounds of a reasonable response. The discipline meted out could have been harsher (one witness testified that she would have expected the employer to fire an employee who made such a comment), but these are judgment calls and I am loath to conclude that the fact that I might have made a different judgment call amounts to a breach of the Code.

63The human rights case law addressing whether a single incident amounts to a breach of the Code is divided.

64In Abdallah v. Thames Valley District School Board, 2008 HRTO 230, Dr. Abdallah was enrolled in an ESL program provided by the respondent Board. He had been accused of cheating, and in a heated exchange when he later sought to address the situation with one of the teachers who had accused him, he claimed that the accusations were discriminatory. The teacher responded by saying “I am sick and tired of immigrants crying discrimination when they don’t get what they want.” There then was a conversation about what she meant by immigrant in which she indicated that she herself was not an immigrant because she was born in Canada.

65Vice-Chair Chadha decided that this comment did amount to discrimination. It was argued by the individual respondent that this comment should be taken in its context as being derived from the aggressive conduct of Dr. Abdallah, and was a description of the teacher’s experience of discrimination complaints. This argument was rejected. It was found that the fact that the teacher taught ESL and should have been aware of how such a comment would be taken weighed heavily. Also, the comment was exacerbated by the personal respondent’ subsequent discussion of the meaning of “immigrant” being distinguishable from the status of being “Canadian.”

66In Pillai v. Lafarge Canada Inc., [2003] B.C.H.R.T.D. No. 26, the British Columbia Human Rights Tribunal held that an ongoing pattern of racial slurs uttered behind Pillai's back and one instance of a slur being shouted at him in the midst of an argument constituted a poisoned work environment and therefore discrimination.

67I find that those cases are distinguishable from the case before me. In Abdallah, the comment was made by a teacher to a student, a relationship of particular vulnerability. I note that Mr. Crilly, although a shift supervisor, and therefore superior to the complainant in the line of supervision, was not a member of senior management. There is little doubt that the complainant did not feel vulnerable to Mr. Crilly and took every opportunity to engage him in a confrontational manner. In fact, part of the issue between them was the complainant’s refusal to recognize Mr. Crilly’s authority.

68In Pillai, there were numerous comments made behind the applicant’s back, in addition to the single racial slur. That was not the case before me.

69Also, in this case, unlike the other cases, the employer took action to discipline the worker and reported back to the complainant. This dispels the submission that the complainant would have believed that such comments were acceptable, which could have led to a poisoned work environment.

70In Trang v. Alberta (Edmonton Remand Centre), 2010 ABQB 6 the Court states that in an employment context, an isolated racial slur, even one that is very harsh does not necessary amount to discrimination (paragraph 1129).

71Similarly in Dhanjal v. Air Canada, [1996] C.H.R.D. No. 4, the Board concluded that an isolated slur, will not by itself constitute harassment (paragraph 212) and even one uttered by management does not necessarily trigger the duty of due diligence (paragraph 246).

72In Banwait v. Forsyth, 2008 BCHRT 81, the Tribunal found that the applicant’s colleague had referred to him as a “fucking Hindu” during the course of a heated exchange. The Tribunal concluded that this single racial slur did not constitute a violation of the Code.

Conclusions on Education Comments

73I conclude that Mr. Crilly, who had little formal education in working with addicts, but was a former addict himself, put little value on education and credentials. I find that Mr. Crilly’s comments to the complainant devaluing his education were not related to his having obtained his credentials in Albania, but were a general denigration of the value of education in dealing with addicts. The evidence established that he similarly denigrated the educational qualifications of other colleagues.

Conclusions on the Laundry Comment

74In my view, the single comment about bringing his wife in to teach him to use the laundry does not rise to the level of Code-related harassment.

DID THE RESPONDENTS REPRISE AGAINST THE COMPLAINANT FOR FILING A COMPLAINT?

Failure to award a Housing Re-direct worker Position

75The complainant alleged that the employer’s failure to assign him to a counsellor position following a successful competition and his removal from the position of alternate rate housing redirect worker were direct consequences of his filing a human rights complaint.

76The competition for various counsellor positions was held around September 11, 2001. Several employees, including the complainant were successful in the competition and Mr. Rosolak assigned the successful candidates to various programs in Seaton House. Although there was a counsellor position in the O’Neill program, Mr. Rosalak testified that he decided not to assign the complainant to that position because of his ongoing conflicts with clients and shift supervisors at O’Neill house. Instead he assigned the complainant to a temporary counsellor position at Birkdale House.

77However, Joe Brinkos, the program supervisor at Birkdale House advised the complainant on October 3, 2001 that no position was available because the employee on disability leave, whom he was to replace, returned to work unexpectedly. The Complainant filed a grievance with respect to the counsellor competition on the basis that less senior part-time employees had been offered counsellor positions at other locations. I note that the documentary evidence submitted by the respondent to support the employee returning to work is not consistent in terms of timing (the documents suggest that a worker on disability leave did not return to work until much later).

78The employer agreed to place the complainant in a position of alternate rate relief counsellor and housing redirect worker at O’Neill house. The employer understood this to be a complete resolution grievance which was subsequently withdrawn by the union.

79I find that the complainant has not established on a balance of probabilities that the complainant was assigned to Birkdale house or not assigned to Seaton as a reprisal for filing a human rights complaint. I conclude that the City has established a non-discriminatory explanation why the complainant was assigned to Birkdale rather than Seaton house and a non-discriminatory explanation why the position at Birkdale did not materialize. I further find that the applicant has not presented any credible evidence to demonstrate that the employer’s explanation was a pretext.

Removal from Housing Re-direct Worker Position

80In 2003 the employer advised the complainant that he was removed from the position of housing redirect worker and returned to a position as a client services worker as the employer had lost confidence in his ability to represent the employer in that capacity. The complainant views this as another form of reprisal.

81The employer relied upon three incidents in which the complainant allegedly comported himself in an unacceptable manner, as a basis for removing the complainant from his position. In April 2002 the complainant had a conversation with a female caseworker from the Workplace Safety and Insurance Board about his benefits. The caseworker subsequently sent an email on May 2002 to the employer alleging that the complainant had refused to allow her to speak, questioned her about her ethnic background and threatened to sue the City.

82On May 17, 2002 the complainant had a conversation with Ms. Funnel about his son’s application for a position as client services worker. Ms. Funnel subsequently sent an email to the employer alleging that the complainant had been aggressive and rude, had questioned her credentials, had threatened to go to a supervisor and had insisted that his son would attend at the next stage of the process for a written examination.

83On October 16, 2002 he had a dispute with a front line worker at Social Services.

84On April 14, 2003, the employer received a complaint about the complainant’s behaviour at a public event.

85I find that that the complainant has not established on a balance of probabilities that the complainant was removed from the housing redirect worker position as a reprisal for filing a human rights complaint. I conclude that the City of Toronto has established a credible non-discriminatory explanation why the complainant was removed from the housing redirect worker position and the applicant has not presented any credible evidence to refute the employer’s non-discriminatory explanation.

QUESTIONING THE COMPLAINANT’S ABILITY TO WORK WITH WOMEN

86The complainant testified that Mr. Anstett challenged whether he could work with women or lesbian gay or transgendered clients as he was a Muslim. Mr. Anstett denied being aware that the complainant was Muslim or that he questioned his ability to work with the lesbian, gay and transgendered community. Mr. Anstett agreed that he approached the complainant to discuss whether he had difficulty working with women, in light of the above incidents, all of which involved women. I find that Mr. Anstett’s discussion was prompted, not by any stereotype he held about Muslim men, but directly by the complaints received by three women about his interaction with them. There is nothing discriminatory in this.

FAILURE TO INVESTIGATE

87The complainant submitted that the City’s failure to investigate the allegations set out in the complaint amounted to a breach of the Code. The complaint was filed on May 2002. At that point, City’s legal department took responsibility for filing a response. However, Boris Rosolak did speak to every person named in the complaint and asked for their response to the allegations. Each of the personal respondents denied making the comments alleged.

88The complainant alleges that this level of investigation was inadequate and the failure to mount a reasonable investigation amounts to a breach of the Code. The complainant submitted that the City’s own human rights policy required it to investigate, jointly with the legal department.

89The corporate respondent denied that the policy required a joint investigation. It is unnecessary for me to comment on the meaning of the corporate respondent’s human rights policy. The question before me was whether the corporate respondent breached the complainant’s rights in its response to the complainant’s formal human rights complaint.

90Essentially Boris Rosolak conducted a brief investigation and concluded that the complainant’s allegations were untrue. This conclusion was based in part on the fact that he felt that the allegations against him were preposterous and untrue and that the allegations against the others were also preposterous.

91The City’s human rights office declined to inquire into the allegations on the basis that they were being dealt with through the human rights commission process.

92I conclude that this was not an inappropriate response in the particular circumstances of the case. In some situations, the fact that the Commission was also investigating might not relieve an employer of an obligation to conduct its own internal investigation. In this case however, I accept that the corporate respondent’s decision to allow the Commission process to play out was a reasonable response. Boris Rosolak had limited ability to conduct an investigation, as he was a named respondent and the complaint was primarily being handled by the legal department. Their efforts to determine the matter is protected by privilege. Nonetheless, Mr. Rosolak did inquire of several named respondents their response. They each denied the allegations.

93It does not make sense that the corporate respondent would be obliged to conduct two investigations, one by the human rights office and one by the legal department in response to the human rights complaint.

94I find that it was reasonable that Mr. Rosolak, having done a cursory investigation and satisfied himself that the allegations could not be substantiated, except through a formal legal process, left the formal investigation and response process to the legal department. The nature of the allegations (he said, she said) could only be resolved through a formal hearing process, which is how the matter eventually proceeded before me.

95The Application is dismissed.