Pitter v. Toronto Transit Commission, 2012 HRTO 1412

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Desmond Pitter

Applicant

-and-

Toronto Transit Commission

Respondents

DECISION

Adjudicator: Leslie Reaume

Date: July 18, 2012

Citation: 2012 HRTO 1412

Indexed as: Pitter v. Toronto Transit Commission

APPEARANCES

Desmond Pitter, Applicant

Self-represented

Toronto Transit Commission, Respondent

Steve Lavender, Counsel

Introduction

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 colour. The Application also contains references to discrimination on the basis of ancestry and place of origin.

2By Case Assessment Direction dated September 14, 2011, the Tribunal, on its own initiative, scheduled this matter for a Summary Hearing by teleconference pursuant to Rule 19A of the Tribunal’s Rules of Procedure.

3The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure. The issue in a summary hearing is whether the Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

4In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-10, the Tribunal observed that in some cases, the focus of the summary hearing will be on the legal analysis and whether the allegations could reasonably be considered to amount to a Code violation. In other cases, the focus will be on the applicant’s ability to point to evidence which is reasonably available which would demonstrate a link between the actions of the respondent and the prohibited grounds alleged by the applicant. The Tribunal also emphasized the importance of being attentive to the fact that in some cases of alleged discrimination, the respondent may be in possession of most or all of the evidence related to the applicant’s allegations and it may be appropriate to give the applicant the opportunity to acquire that evidence through disclosure and cross-examination of the respondent’s witnesses.

5As the Tribunal noted in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17, the Tribunal does not have the power to deal with general allegations of unfairness and that there must be a basis for the allegations beyond mere speculation.

6The Case Assessment Direction also addressed the issue that some of the applicant’s allegations may be untimely. Section 34 (1) and (2) of the Human Rights Code, read as follows:

(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.

ANALYSIS

7The applicant self-identifies as a black man from Jamaica. He has been employed with the respondent since 1982 as a General Body Repairperson/Painter in the Rail Cars and Shops department. His allegations span the period from 1990 to 2011 during which he was allegedly denied promotions to the position of Foreperson. During that period he was working first at the Hillcrest location and then at the Wilson location for the respondent.

8In the Application the applicant cites job competitions he unsuccessfully applied for in August 2009, October 2010 and August 2011 while he was working at the Wilson location. The applicant was given an interview in February 2011, which he alleges came about because he raised concerns about not having been contacted in relation to previous competitions. The applicant alleges that he was told at the February 2011 interview that he would be contacted, but that he was not notified of the outcome of the competition and that two candidates who were described as “white or Italian” started work as forepersons in April 2011.

9The Application also makes reference to the applicant’s experience working at the Hillcrest location going back to 1990 where he alleges that he was not selected to be a foreperson because of the respondent’s preference for candidates of Italian decent.

10The respondent filed a response addressing the later allegations and arguing that the early allegations are so far out of time that it would not be possible to acquire the necessary information to respond to them. Moreover, the respondent alleges that there is no reasonable prospect that evidence is or will be available to the applicant to demonstrate that the failure to select him as a foreperson at any time is linked to his race, colour, ancestry or place of origin.

The Early Allegations from 1990

11The early allegations which go back to 1990 are clearly out of time and cannot be considered part of series of incidents which end with the last competition in August 2011. There is almost a 20-year gap between the early allegations and the later ones. While the applicant describes those early experiences as having an ongoing effect on him, they are not connected to the later job competitions except in so far as they can broadly be defined as competitions for a foreperson position.

12The applicant’s explanation for not filing an application in relation to those early allegations is that he was told to “try again” and that is what he chose to do. This explanation is insufficient to establish that the delay was incurred in good faith for the purpose of extending the limitation period under section 34(2) of the Code.

13Accordingly, I would not extend the time for filing in relation to these allegations.

The Later Allegations Commencing in 2009

14It was not contested that the respondent had identified a need to create a pool of qualified people for foreperson positions as a result of an anticipated high rate of attrition in the near future. The pool was to comprise qualified candidates from both inside and outside the company. The position was posted several times and the respondent’s records indicate that the applicant applied for three of those postings: “7458” in March 2010; “7635” in August 2010 and a second posting of “7635” in December 2010. The respondent has no record of the applicant applying in August 2009.

15The respondent alleges that the applicant was not qualified for the position of foreperson. The applicant disagrees. However, the real question is what evidence is reasonably available to the applicant to support his belief that the respondent failed to promote him to the position of Foreperson because of the prohibited grounds set out in his Application.

16The applicant alleged that the outcome of each of the competitions was pre-determined in the sense that the successful candidate was picked before the competition was underway. He indicated, for example, that he had information that certain candidates received the interview questions in advance. The respondent denied this allegation and the applicant indicated that he would not disclose the details of this information until the hearing despite being advised of the Tribunal Rules related to disclosure. In his oral submissions the applicant cited a number of other reasons for the success of certain candidates including the respondent’s alleged preference for candidates of Italian descent, as well as nepotism and more generally, “who you know”. The applicant alleged that some of the successful candidates had contacts which made it possible for them to come in from outside the company with no knowledge of buses, trains or streetcars.

17In oral submissions, the respondent cited examples of men who self-identify as people of colour who have been promoted. The applicant did not dispute the respondent’s examples but instead alleged that those positions were given to men as “tokens” in order to cover up what is otherwise a racially-biased work environment.

18The applicant attributes the conduct of the respondent to discrimination. However, even if I accepted the applicant’s allegations, the burden on the applicant is higher than proving that something adverse happened to him and that he is also a person of colour. He must demonstrate that the adverse treatment occurred at least in part because he is a person of colour. The Application and underlying materials as well as the submissions of the applicant fail to make this connection.

19The Tribunal has long accepted that is often difficult to establish direct evidence given the subtle and nuanced ways in which racial discrimination manifests in our culture. The Tribunal is often called upon to draw reasonable inferences from circumstantial evidence which establishes that race is more likely than not one of the factors associated with the conduct in question. In Phipps vs. Toronto Police Services Board, 2009 HRTO 1604 (“Phipps”), for example, the Tribunal drew the inference of racial discrimination from evidence that Mr. Phipps, a black man dressed in his postal uniform delivering mail door to door, nevertheless aroused the suspicions of a police officer who thought it possible that Mr. Phipps might be wearing the postal uniform as a ruse. Even after speaking with Mr. Phipps himself, and also with a neighbour as well as conducting a criminal records check, none of which raised any concerns, the officer continued his investigation of Mr. Phipps by inquiring about him with another letter carrier.

20The facts in the Phipps case are not the only kinds of facts which give rise to an inference of discrimination. However, the Phipps case demonstrates the necessity to look beyond the mere speculation of the applicant to the surrounding circumstances of the respondent’s actions. In this case, the applicant is unable to point to evidence which would be reasonably available to him which would enable the Tribunal to draw the inference that the applicant was treated by the respondent in an adverse manner because of his race, colour, ancestry or place of origin.

21Accordingly, the Application is dismissed.