HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Pranjal S. Pathak
Applicant
-and-
Siemens Milltronics Process Instruments, Elaine Peacock, Robert Brown
Respondents
DECISION
Adjudicator: Michelle Flaherty
Date: August 21, 2012
Citation: 2012 HRTO 1602
Indexed as: Pathak v. Siemens Milltronics Process Instruments
APPEARANCES
Pranjal S. Pathak, Applicant
Self-represented
Siemens Milltronics Process Instruments, Elaine Peacock, Robert Brown, Respondents
André R. Nowakowski, 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, colour, ancestry, place of origin, citizenship, ethnic origin, disability, creed, and marital status.
2The Tribunal held a summary hearing in this matter on May 15, 2012. I heard submissions from the applicant and from counsel for the respondents. For the reasons that follow, the Application is dismissed. I find that it has no reasonable prospect of success.
OVERVIEW OF PROCEEDINGS
3The Application contains detailed and wide-ranging allegations of discrimination, extending from the offer of employment made to the applicant in 2005 to the termination of his employment in 2010. In essence, the applicant states that much of his interactions with the respondents were discriminatory and tainted by their consideration of his Code-related grounds.
4The respondents vigorously deny the allegations of discrimination. They argue that many of the applicant’s allegations are far-fetched, speculative, and that they have no connection to the Code. They also state that the applicant is engaged in a fishing expedition.
5In a Case Assessment Direction dated October 5, 2011, the Tribunal granted the respondents’ Request for a Summary Hearing.
6In advance of the hearing, the Applicant filed a Request for an Order During Proceedings (“Request”) seeking particulars and the production of numerous documents. At the outset of the summary hearing, I advised the parties that I would not determine the Request, but I invited the applicant to refer in his submissions to any documents or information that he believed he could obtain from the respondents and to explain how these documents could establish that the Application has a reasonable prospect of success. The applicant did not refer to any such documents or information in his oral submissions.
7At the summary hearing, I asked that rather than focusing their submissions on the details of the many allegations, the parties’ address the issue of whether or not the allegations have any reasonable prospect of success. In particular, I asked that they provide submissions on whether there is a reasonable prospect of establishing a link between the applicant’s allegations and grounds under the Code.
8The summary hearing went beyond the three hours allotted for the hearing. I heard lengthy oral submissions from the applicant and from respondents’ counsel. In reply, the applicant had an opportunity to make oral submissions in respect of all issues except the case law cited by the respondents. At the close of the hearing, the Tribunal suggested (and the parties agreed) that the applicant reply to the respondents’ case law by way of written submissions.
9The applicant filed very extensive written submissions on May 29, 2012 and on July 24, 2012. In the submissions, he references the respondents’ case law but also reiterates many of the arguments he made at the summary hearing. He also requests disclosure of complaints and investigation notes related to allegations that he had accessed confidential information. He states that these documents “capture comments against Indians, their food and their accents from 2006, 2007, 2008.” In the applicant’s July 24, 2012 submissions, he states that a level 7 position existed at the time he was hired by the respondent and that he was qualified for that position. He also provides documentation about the engineering accreditation process in Canada.
10The respondents object to the applicant’s written reply submissions because they go well beyond a reply to case law. In light of my conclusion that the Application has no reasonable prospect of success, it is not necessary for me to determine the respondents’ objections. Even considering the applicant’s written submissions of May 29, and July 24, 2012, I am not satisfied that the Application has a reasonable prospect of success.
THE FACTS
11While the applicant’s allegations are numerous and wide-ranging, they essentially fall within four general categories: comments and gestures; actions of the employer with respect to the applicant’s employment; failure to accommodate; and reprisal. The following list, while non-exhaustive, provides examples of the applicant’s allegations:
a. The job offer made to the applicant in 2005 was unfair and he ought to have been offered a more senior position;
b. He was harassed when the respondents attempted to schedule meetings with him and required him to sign a release;
c. Since beginning work with the corporate respondent, the feedback given to the applicant was discriminatory and his qualifications and skills were not appropriately recognized;
d. The applicant’s manager yelled at him in the presence of other employees. The manager subsequently apologized;
e. The respondents sometimes refused to consider projects or idea proposed by the applicant and his manager and co-workers often became frustrated with him when he raised ideas. On one occasion, the manager tried to “shush” the applicant in a meeting;
f. The respondents unfairly investigated the applicant when it received information from other employees (the “complainants”) that the applicant had access to their or others’ confidential information;
g. He was unfairly criticized for intimidating one of the complainants, when he drove to her home and was in his car when she arrived after work;
h. The respondents granted a non-racialized employee time off, but denied a later request for vacation from the applicant;
i. His performance was subject to heightened scrutiny and he was required to attend a number of meetings about his performance;
j. He was assigned less favourable jobs and was singled out and transferred to other work groups when workplace conflict arose;
k. He was not initially offered training that was available to other employees because they were members of a committee and the applicant was not;
l. The respondents failed to accommodate his disability (reflux and mental trauma caused by workplace stress) by allowing him to sit in an area away from particular individuals;
m. The respondents harassed him by insisting on meeting with him and conducting a review of his performance even though the applicant asked that the meeting take place after he had met with his doctor;
n. Code grounds were factors in the decision to terminate his employment in 2010;
o. The applicant was reprised against because he agreed to testify at a co-worker’s human rights hearing;
p. The applicant’s manager misspelled the applicant’s name on two occasions and “distorted [his] statements more than once”;
q. The applicant was included in a project in order to add ‘diversity” to that project team;
r. At some workplace functions, no vegetarian entrée was provided and, on one occasion, someone advised the applicant that bacon bits in a salad were imitation when they were not;
s. A number of discriminatory comments were made in the applicant’s presence, including disparaging remarks about other east Indians in the workplace and comments about vegetarianism, the bible, “offshoring” and Christmas; and
t. The applicant’s health benefits were erroneously cut off upon the termination of his employment;
u. The applicant’s manager intimidated him (kicking the door shut, scowling and occasionally yelling) and threatened to “spoil his annual review”; and
v. The applicant’s manager and his co-workers “made faces to show derision.”
12It is clear from the parties’ submissions and from the materials filed with the Tribunal that there was considerable discord between the applicant, his manager and many of his co-workers. The respondents deny that many of the alleged comments or gestures were said or made. In any event, they argue that the applicant was the clear cause of this discord, that he was unreasonable, insubordinate and confrontational with his manager and co-workers.
13The applicant disputes that he was the cause of the workplace discord. He submits that, throughout the course of his employment, he was disproportionately blamed for the workplace conflict. He states that some disagreement is a necessary part of regular work and that to the extent that there were interpersonal issues, they stemmed from his having to work in an oppressive work environment, where he was treated differently from non-racialized co-workers.
14As I have indicated, the applicant also alleges reprisal based on his agreement to be a witness at a co-worker’s human rights hearing. I understand that this hearing did not take place, but the applicant submits that the respondents nevertheless knew of his involvement in the other matter. The respondents argued that there was no evidence before me that they knew of the applicant’s participation in the other matter.
ANALYSIS
15Section 5 of the Code states:
5.(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.
(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.
16The issue before me in determining this summary hearing is whetherthe applicant has no reasonable prospect of establishing that the respondents discriminated against him based on the Code grounds identified. In particular, I must consider whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him can show a link between the alleged events and a prohibited ground. I must also consider whether there is no reasonable chance that the applicant can establish that the respondents reprised against him.
17In considering these issues, I am mindful that the Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination on the grounds set out in the Code: 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.
18As I have indicated, the applicant essentially claims that much if not all of the respondents’ behaviour from 2005 to 2010 was tainted by consideration of the applicant’s Code grounds. The respondents strongly object to this as a basis for proceeding with the Application beyond the summary hearing stage.
19As the Tribunal explained in Preddie v. Saint Elizabeth Health Care, 2011 HRTO 2098 (at para. 25), while discrimination based on race or colour can be subtle and hard to detect, an applicant must nevertheless 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 reasonably available to him can show a link between the events alleged and a prohibited ground.
20I fully accept that subtle discrimination can take various forms, which can include isolation in the workplace and others’ perception that a racialized person (or someone identified by other Code grounds) is confrontational or insubordinate. However, in all of the circumstances of this case, I find that the applicant has no reasonable prospect of establishing a connection between the workplace incidents he complains of and a Code ground. In reaching this conclusion, I am influenced by the nature of the applicant’s allegations and the comments and incidents the applicant characterizes as discriminatory as well as the breadth of the interpersonal difficulties he encountered. I have also carefully considered the applicant’s arguments about why he believes the respondents’ behaviour is connected to prohibited grounds under the Code.
21In respect of the comments referred to in the Application, as the Tribunal stated in Gurney v. McDonald’s Restaurants of Canada, 2011 HRTO 984 (at paras. 6 and 7), the purpose of the Code is not to police the respondents’ every comment, nor does a person’s hurt feelings, anxiety or upset about a situation mean that the Code was violated. A passing comment regarding the fact that the applicant is a vegetarian or has a particular mother tongue is not, without more, sufficient to fall within the realm of discrimination or harassment. I am not satisfied that, in all of the context, the allegedly discriminatory comments referenced in the Application could reasonably be interpreted as humiliating or denigrating to the applicant on the basis of a Code ground.
22The applicant has characterized a number of comments and gestures, including slamming doors, facial expressions, and disagreements, as discriminatory. It flows from the Tribunal’s decision in Gurney, supra, and the principles set out above that a gesture of frustration or disagreement, without more, does not amount to a breach of the Code. In all of the circumstances, I am not satisfied that the allegedly discriminatory gestures or expressions could reasonably be interpreted as discrimination or harassment based on a Code ground.
23The applicant also alleges that he was otherwise discriminated against, when his employer took or failed to take certain steps in the workplace see, for example, paragraph 11 a, b, c, e, f, h, i, j, k, n. He states that the termination of his employment was in breach of the Code and that he was unfairly blamed and targeted for workplace conflict.
24I have reviewed the documents filed by the parties and, along with the allegations contained in the Application, they show that the applicant experienced serious interpersonal difficulties with a considerable number of individuals in the workplace, including his manager, his colleagues, and other co-workers. In 2006, following a number of workplace incidents and after he was advised that his employment would be terminated unless his behaviour changed, the applicant agreed to undergo conflict management training. It is clear from the allegations and the documents submitted that, while the situation improved temporarily, the applicant again experienced widespread interpersonal issues beginning sometime in 2008.
25Given the breadth of the interpersonal difficulties experienced by the applicant and the scope and number of other co-workers involved, I find that there is no reasonable prospect of establishing that he was disciplined or otherwise singled out as confrontational or insubordinate because of Code grounds. I note that, while the applicant may have been the only person of East Indian origin in his particular work group, the workplace was generally diverse. In circumstances where the applicant encountered such broad-based conflict and interpersonal difficulties, it is not sufficient for him to state that he believes this conflict occurred because of his particular Code grounds. In this regard, I adopt the Tribunal’s reasoning in Preddie, supra.
26The respondents state that the applicant’s employment was terminated because of these on-going interpersonal issues. The applicant argues that the respondents’ perceptions were tainted by Code grounds and that these were a factor in the decision to terminate his employment. Given my conclusions in para. 25, above, I find that there is no reasonable prospect that the applicant can establish that the termination was discriminatory in the sense that his Code grounds were a factor in that decision.
27There is also no basis to conclude that the other allegations related to workplace treatment have any reasonable prospect of success. The applicant speculates that his Code grounds were factors in the treatment he received, but he has not pointed to any evidence or prospective evidence that could establish this link. Again, the applicant has made bald allegations that, without more, do not meet the summary hearing test.
28I find that the allegations of failure to accommodate have no reasonable prospect of success. In the context of this proceeding, the applicant has explained that he required accommodation, but he has not pointed to any evidence or any prospective evidence to show that he had a disability at the material times.
29Notwithstanding this, the respondents state (and the applicant does not dispute) that he was assigned a workspace away from particular individuals for a period of approximately nine weeks. The applicant was repeatedly asked to provide medical documentation to substantiate his requests for accommodation, but he failed to do so. In all of these circumstances, I conclude that the applicant’s allegation that the respondents discriminated against him by proceeding with a meeting has no reasonable prospect of success.
30With respect to the applicant’s claim of reprisal, it is not clear to me that the respondents knew that the applicant had agreed to testify in a co-worker’s human rights proceeding. Even assuming that the applicant could establish that the respondents were aware, there is no basis to suggest that the respondents reprised against the applicant in the sense that they acted or made a threat with the intention of retaliating against the applicant because he had participated in a proceeding under the Code: Noble v. York University, 2010 HRTO 878.
31Section 8 of the Code 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.
32The applicant argued that the respondents discriminated against the applicant throughout the course of his employment, from 2005 to 2010. He did not point to any evidence or any prospective evidence that could show that the respondents’ approach to him changed after they allegedly became aware of the applicant’s involvement in the other proceeding. Nor did he point to any evidence or prospective evidence that could establish that the respondents intended to retaliate against the applicant for his involvement in the other proceeding.
33In all of the circumstances, I am not satisfied that the documentary disclosure and particulars sought by the applicant will assist him in establishing that the Application has a reasonable prospect of success. The applicant’s allegations are based on speculation and the applicant has failed to point to any evidence that support them. For example, while the applicant disputes accessing confidential information, he does not dispute that the respondents received complaints to this effect. It is clear that the applicant was upset at the respondents’ decision to investigate these complaints, but he has provided no basis beyond speculation to suggest that this decision or the conduct of the investigation were discriminatory.
34In his written reply submissions, the applicant requests disclosure of all documents related to the investigation; he states that these documents contain “comments against Indians, their food and their accents.” The applicant has not, however, explained why he believes the documents contain such comments. It is not clear to me that any such documents could demonstrate a link between the prohibited ground and the applicant’s allegations. In any event, even if I did accept this evidence, I have already addressed the applicant’s allegations concerning other allegedly discriminatory comments and there is no basis to suggest that the nature of the alleged comments contained in the investigation documents is any different.
35Finally, while I have not referred to each and every allegation of discrimination brought by the applicant, I have addressed the common issue of whether these allegations have a reasonable prospect of being linked to the Code. In support of his Application, the applicant has pointed to numerous incidents which caused him frustration or embarrassment. However, in my view and for the reasons described above, these incidents cannot reasonably be interpreted as based in a Code ground. The applicant urges me to consider the situation, generally, and conclude that it amounted to a poisoned work environment. I do not doubt that the circumstances were very difficult for the applicant, but I cannot conclude that he has a reasonable prospect of demonstrating that they arose from any breach of the Code.
36For all of these reasons, the Application is dismissed. I find that it has no reasonable prospect of success and, in particular, that there is no reasonable prospect of establishing a link between the applicant’s allegations and a Code ground.
Dated at Toronto, this 21st day of August, 2012.
Signed by
Michelle Flaherty
Member