Amadeo Melendez v. City of Toronto et al., 2012 HRTO 1230

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Amadeo Melendez

Applicant

-and-

City of Toronto, Charles Pringle, Andrew Boszin, Cindy O’Reilly, Lorain Burton, Rosanne Rinella and Charlotte Monardo

Respondents

DECISION

Adjudicator: Michelle Flaherty Date: June 22, 2012 Citation: 2012 HRTO 1230 Indexed as: Melendez v. Toronto (City)

APPEARANCES

Amadeo Melendez, Applicant Self-represented

City of Toronto, Charles Pringle, Andrew Boszin, Cindy O’Reilly, Lorain Burton, Rosanne Rinella, Respondents Robert M. Church, Counsel

Charlotte Monardo, Respondent Aleisha Stevens, Counsel

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of race and place of origin. The Application also alleges reprisal.

2For the reasons that follow, the Application is dismissed. I find that it has no reasonable prospect of success. While I appreciate that the applicant is frustrated by the number of job competitions conducted for the foreperson position, he has not pointed to any evidence or prospective evidence linking this (or any of his other allegations) to a prohibited ground under the Code.

OVERVIEW

3The main issue in this Application is the City of Toronto’s (“City”) conduct of three job competitions for the position of Foreperson, Grade 2. For reasons entirely unrelated to the applicant, there were irregularities in the first two job competitions that were conducted. The applicant was a successful candidate for the position in the first two times the competition was run. However, the third and final time the competition was held, he was unsuccessful. As a result, although he had been working as a foreperson for some time by this point, he has returned to his original position as a cleaner.

4In the Application, the applicant argues that the conduct of the third job competition was discriminatory. He also makes a number of other allegations of discrimination, including against Charlotte Monardo, a representative of the Canadian Union of Public Employees (“Union”).

5Consideration of the Application was deferred pending the determination of a number of outstanding grievances: 2010 HRTO 398. In a second Interim Decision, the Tribunal denied the applicant’s Request to Reactivate because the grievance process had not concluded. The applicant filed a second Request to Reactivate on January 18, 2011. This Request was granted and the respondents were directed to file a Response: 2011 HRTO 1817.

6Charlotte Monardo filed a Response in which she denies the allegations of discrimination and argues that the applicant’s allegations are not grounded in the Code. Monardo also asks to be removed as a personal respondent. The remaining respondents (“City respondents”) have filed a Response in which they deny the allegations of discrimination, argue that some of the allegations are untimely and submit that, in any event, the individual respondents should be removed as parties to the Application.

7The applicant did not file a Reply.

8Upon review of the pleadings filed by the parties, I invited written submissions regarding whether the Application should be dismissed pursuant to section 45.1 because the substance of the Application had been appropriately dealt with in grievance proceedings. On February 28, 2012, I issued an Interim Decision in which I found no basis to dismiss the Application in whole or in part pursuant to section 45.1 of the Code: 2012 HRTO 403. In a Case Assessment Direction, also dated February 28, 2012, I directed that the matter proceed by way of a summary hearing.

9A summary hearing was held on June 7, 2012. I heard submissions from the applicant and from counsel for Ms. Monardo and counsel for the City respondents.

THE FACTS

10The applicant applied for a foreperson position in the first job competition, which was held in or about July 2005. He was one of the successful candidates and he began work in the foreperson position in about August of 2005.

11Subsequently, a number of grievances were filed in respect to this job competition. The sister of a City manager had been a candidate in the job competition and, while this City manager had been involved in running the competition and preparing the questions, neither he nor his sister had declared a conflict of interest. In accordance with minutes of settlement between the City and the Union, the City agreed to rerun the job competition.

12The Minutes of Settlement state:

It is understood that [t]he current incumbents in the forepersons positions, should they no[t] be successful in the rerun competition, will return to the positions they held at the time of posting.

13The City conducted a second job competition in approximately June 2006. The applicant participated in this job competition and, again, was one of the successful candidates.

14A number of unsuccessful candidates grieved the second job competition and the City ultimately acknowledged that it did not weigh the candidates’ marks for the written exam and the oral interview in accordance with the collective agreement. In the context of a grievance hearing held on February 11, 2008, arbitrator Starkman issued an award stating:

Following discussions with the parties, I am making the following award:

1. The employer will re-run the job competition … as soon as is reasonably possible. For clarity, this re-run competition will apply to all six vacancies.

2. The re-run competition will be run in accordance with the collective agreement provisions in [p]lace at the time of the original position in July 2005.

3. The form and content of the assessment process shall be decided upon and run by the Employer but an independent third person, to be mutually agreed upon by the Employer and the Union, shall act as proctor.

4. It is understood that the current incumbents in the Forepersons position, should they not be successful in the re-run competition, will return to the positions they held at the time of posting.

15Pursuant to this award, the City and the Union agreed on a proctor and the job competition was conducted a third time. This time, the applicant was not successful; he received less than the required 70% on the written test portion of the competition process.

16The applicant took issue with the mark he obtained on the written exam. He reviewed his exam with a City representative and, as a result of this review, he was awarded extra points. Even with these extra points, however, his mark did not reach the necessary 70%. The applicant states that he asked for but was denied an opportunity to review his exam a second time.

17The Union filed a grievance on behalf of the applicant and one other unsuccessful candidate. At the hearing, the other candidate (Linda Rose) withdrew her grievance. The applicant decided not to withdraw his grievance, but he refused to participate in the grievance hearing because he and the Union disagreed as to what arguments would be advanced in support of the grievance. In minutes of settlement between the City and the Union, the applicant’s grievance was adjourned sine die pending review of the matter by the Union’s grievance committee. Ultimately, the grievance committee decided not to pursue the applicant’s grievance.

18In a further Interim Decision, I declined to dismiss the Application in whole or in part pursuant to section 45.1: 2012 HRTO 403

THE ALLEGATIONS OF DISCRIMINATION

19The applicant makes a number of complaints regarding the conduct of the job competitions. He alleges that his race and place of origin were factors in the decision to conduct the competition for a third time. I understand him to argue also that his race and place of origin were factors in the results of the competition and the fact that he was not the successful candidate.

20The applicant has made a number of other allegations of discrimination and reprisal. He states that he was not offered overtime or paid appropriately for overtime pursuant to the collective agreement. He states that some of his managers set other employees against him, that they unfairly criticized his work and subjected him to discipline. He also alleged that the respondents interfered with his work station, that cables were unplugged and that there were footprints on his desk. Finally, the applicant alleges that he was slandered and subjected to demeaning remarks. In the Application, he refers to being called an “asshole”. During the summary hearing, although he was asked to provide submissions regarding these allegations, including the alleged slander and demeaning remarks, the applicant did not provide any further particulars.

ANALYSIS

21Section 5 of the Code states:

(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability. R.S.O. 1990, c. H.19, s. 5 (1); 1999, c. 6, s. 28 (5); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (5).

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.

22The issue before me in this summary hearing is whether or not the applicant has no reasonable prospect of success in establishing that the respondents discriminated against him based on Code grounds. In particular, I must consider whether there is no reasonable prospect that evidence the applicant has or that is reasonably available to him can show a link between the applicant’s allegations and the prohibited grounds of race and place of origin (Dabic v. Windsor Police Service, 2010 HRTO 1994).

23In considering these issues, I am mindful that the Tribunal does not have the general power to inquire into claims of unfairness outside the areas and grounds listed in the Code. Importantly, the Tribunal’s mandate is not to correct general unfairness, but to deal with alleged discrimination on Code grounds: Dabic v. Windsor Police Service, 2010 HRTO 1994. In addition, as the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, for an application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code.

24Furthermore, in considering the allegations against Monardo as a representative of the applicant’s union, I am guided by the following principles, set out in Traversy v. Mississauga Professional Firefighters’ Association, 2009 HRTO 996 at para. 33:

Assuming that the Code also applies to this aspect of a union’s relationship with the employees it represents, a claim that the union violates the Code must be based on an assertion of differential treatment, and not simply a failure to act. The failure or refusal to take forward a human rights issue, such as accommodation of a disability in the workplace, is not, in and of itself, a breach of the Code. There may be many reasons that have no discriminatory overtones why a union might choose not to pursue a human rights claim on behalf of an employee: see Baylet v. Universal Workers Union, 2009 HRTO 700. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.

25I explained the above principles to the applicant at the outset of the hearing and I invited him to explain why he believes the respondents’ acts or failure to act amount to discrimination under the Code.

26The applicant argued that the respondents treated him less favourably than they did his non-racialized coworkers. He states the Union takes non-racialized workers’ grievances forward, but that it “never” advances his own grievances or takes them to the hearing stage. The applicant makes essentially the same argument in regards to the City respondents: he states that white employees are given privileges and favours that he does not receive, including overtime hours and time off. In essence, the applicant submitted that he had been a victim in the workplace in a number of circumstances and that his experience is different from that of his non-racialized coworkers. He argues that the only reasonable explanation for this differential treatment is based on his race and place of origin.

27I have considered the applicant’s arguments and I find that, in the circumstances of this case, he has no reasonable prospect of showing a link between the respondents’ alleged conduct and a Code ground. In reaching this conclusion, I am influenced by two factors.

28First, as the respondents pointed out, the applicant’s allegations of discrimination are quite vague. He complains of the treatment he received at the hands of the respondents, but provides only the general comments described above to connect his allegations to prohibited grounds in the Code. As the Tribunal explained in Preddie v. Saint Elizabeth Health Care, 2011 HRTO 2098 (at para. 21), to get beyond the summary hearing stage, it is not sufficient for the applicant to make general allegations that all of the respondents’ acts are tainted by consideration of a Code ground. An applicant must instead point to identifiable allegations of discrimination based on the Code and explain a link between the respondents’ actions and possible violations of his rights under the Code. The applicant has failed to do this.

29I adopt the Tribunal’s reasoning in Preddie, supra, (at para. 25), where it wrote:

I accept the argument …. that discrimination based on race or colour can indeed be subtle and hard to detect, but an applicant must provide some reasonable basis for making allegations of such discrimination. It is not sufficient to claim discrimination as a member of a group protected under the Code and to look to a hearing process before the Tribunal as the means to discover whether such discrimination occurred; there must be some reasonable prospect that evidence the applicant has or that is reasonable available to her can show a link between the events alleged and the alleged prohibited ground.

30Second, the applicant has not pointed to any evidence that would support his allegation that the Union “never” advanced his grievances. In fact, the documents that have been filed with the Tribunal by the Union suggest that many of the applicant’s grievances advanced through the grievance steps and at least one was referred to arbitration.

31Counsel for the City respondents pointed out (and the applicant did not dispute) that the City workforce is a diverse one and fully one third of the workers in the applicant’s unit are racialized. While it is clear from the parties’ submissions and the documents filed with the Tribunal that the relationship between the applicant and the respondents has been a difficult one, the applicant has provided nothing beyond speculation to link his allegations of discrimination to a Code ground.

32In regards to the conduct and outcome of the job competition, in particular, I find that the applicant has pointed to nothing to suggest his race or place of origin were factors in the decision to re-run the competition a third time. The third job competition arose from an arbitral award and it is not clear to me that it would be appropriate for this Tribunal to determine the appropriateness of that award. In any event, the applicant has not so much as suggested that he or any of his Code grounds were considerations material to the arbitrator’s award.

33Further, while I appreciate the applicant’s frustration with the outcome of the third job competition, he has pointed to no evidence or prospective evidence to show that Code grounds were factors in how the competition was run or how the applicant was evaluated. I note that the applicant had an opportunity to review his written examination and that he successfully challenged the mark he obtained. At the summary hearing and in his written materials, the applicant has provided no basis to suggest that he merited additional marks or that the marking system applied was discriminatory. Although he argues that he did not have an opportunity to review his written exam a second time, the applicant has not suggested that any other candidates had an opportunity to do so or that his Code grounds were a factor in this decision.

34To the extent that the applicant is alleging there was a conspiracy between the Union (Monardo) and the City to conduct a number of job competitions in order to oust him from his position, this is a bald allegation and he has pointed to no evidence or prospective evidence that could support it.

35In regards to Monardo, not only has the applicant not established a link between his allegations against her and the Code, he does not appear to allege anything beyond a failure to represent. As the Tribunal stated in Traversy, supra, this is not a basis for a finding of discrimination.

36Finally, I turn to the applicant’s allegations of reprisal. The relevant provision of the Code is section 8, which states:

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.

37The applicant explained that he filed a human rights Complaint in 2004 and that, sometime in 2004 or 2005, a City manager suggested to the applicant that he would get the foreperson job if he abandoned the Complaint. As I have indicated, the applicant was ultimately successful in the second round of the job competition.

38In a previous Case Assessment Direction dated December 15, 2011 I invited submissions from the parties as to the timeliness of the Application pursuant to section 34 of the Code as well as whether the Application should be dismissed pursuant to s. 45.1 of the Code. In Interim Decision 2012 HRTO 403 I addressed the 45.1 issue, however I reached no conclusion at that time as to the timeliness of the allegations contained in the Application. At this summary hearing, I explained to the applicant that this allegation appeared to fall outside the limitation period contained in the Code and I invited him and the respondents to make submissions on the timeliness of this allegation and, in the alternative, whether any delay in filing the Application was in good faith within the meaning of the Code. Neither party objected to the Tribunal addressing the issue of delay at the summary hearing.

39Section 34 of the Code states:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2:

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

40Under section 34, the Tribunal will not deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that:

a. the delay was incurred in good faith; and

b. no substantial prejudice will result to any person affected by the delay.

41The initial onus is on the applicant to show that any delay in filing the Application was incurred in good faith. If he is able to establish good faith, the onus shifts to the respondents to show that they will suffer substantial prejudice as a result of the delay in filing the Application.

42The applicant did not argue that the allegations of reprisal were timely, but he submitted that the delay in filing the Application was in good faith because it is attributable to the City and the Union. He argued that he should not be prejudiced in this Application because the City and the Union failed to take appropriate steps to address his concerns.

43The Tribunal has repeatedly held that waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an application. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670 and Hassell v. Parkdale United Church - Ottawa, 2010 HRTO 991. It was open to the applicant to file a timely Application under the Code while he pursued his rights under the collective agreement. In fact, this is the very course of action the applicant adopted regarding most of the other allegations he makes in the Application.

44For all of these reasons, the applicant has not satisfied me that the delay in filing the Application was in good faith within the meaning of section 34(2) of the Code. The allegations regarding reprisal are therefore dismissed for delay.

SUMMARY

45The applicant is understandably frustrated that he had to compete three times for the same job, particularly since he was successful in two of the three job competitions and worked in the job for a period of time before being returned to his original position. I fully appreciate that the applicant is distressed by this situation and feels it is unfair. However, he has not provided any basis to suggest that the Code was breached, either in regards to the job competition or the other allegations of discrimination contained in the Application.

46For the reasons set out above, I find that the allegations of reprisal are not timely and the applicant has not established that the delay in filing the Application was in good faith.

47For all of these reasons, the Application is dismissed.