Louis Daniel Davis v. The Corporation of the City of Windsor, 2012 HRTO 1848

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Louis Daniel Davis Applicant

-and-

The Corporation of the City of Windsor Respondents

-and-

CUPE Local 82 Intervenor

INTERIM DECISION

Adjudicator: Leslie Reaume Date: September 27, 2012 Citation: 2012 HRTO 1848 Indexed as: Davis v. Windsor (City)

APPEARANCES

Louis Daniel Davis, Applicant Clayton Talbert Sr., Representative

The Corporation of the City of Windsor, Respondent Patrick Brode, Counsel

CUPE Local 82, Intervenor Matthew Todd, Counsel

BACKGROUND

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 reprisal and discrimination with respect to employment because of race and colour. This Interim Decision addresses the respondent's Request to dismiss the Application.

2The applicant's union, CUPE Local 82, was granted intervenor status by the Tribunal on April 19, 2012 (2012 HRTO 801).

3The applicant has been employed by the respondent as a refuse collector since May 29, 1989. He alleges that during the three years prior to the filing of his Application on May 21, 2009, he was subjected to harassment on the basis of race or colour, as well as reprisal, by a number of employees of the respondent in management or supervisory positions. The applicant also alleges that throughout his employment, the respondent has permitted a poisoned environment of systemic discrimination based on race or colour to develop in the workplace.

4The Respondent argues that all of the allegations, excluding the allegation that a racist comment was made in the presence of the applicant on July 30, 2008, are either out of time or properly the subject of grievance proceedings under the governing collective agreement. There are also allegations contained in the Application which the respondent alleges are improperly before the Tribunal because they do not relate directly to the applicant.

5I have set out below the particulars of the applicant's allegations, along with the respondent's position on each of those allegations.

6In February 2005, a racial slur is alleged to have been made by an employee in the presence of a co-worker named Alan Shreve. The applicant did not witness the event. The incident was brought to the applicant's attention in March, 2005, and he raised concerns about it with the respondent and the union. The respondent's position is that this allegation is out of time and does not directly involve the applicant. The respondent argues that the applicant cannot proceed since the Tribunal has already determined that this allegation is out of time in the context of the application of Mr. Shreve, the person who was directly involved: Shreve v. Corporation of the City of Windsor, 2012 HRTO 270 (the "Shreve" Decision).

7The applicant alleges that his involvement in the events of February and March 2005 gave rise to a series of reprisals and that he filed an internal complaint in relation to these concerns on November 17, 2008. The applicant alleges that he has been subject to an inequitable enforcement of internal policies and disciplinary procedures. The disciplinary action alleged by the applicant includes a written reprimand on August 9, 2005, for failing to collect at three pickup locations, without first receiving a verbal warning; several written disciplinary notices received in September 2005, again without verbal warnings; and a written reprimand for by-passing an operating control system on December 8, 2005, without a verbal warning. The applicant alleges he first raised concerns about these allegations with the respondent's Diversity Officer in December 2005. The respondent's position is that the allegations of reprisal are not fully particularized and the incidents which are described in the Application are out of time. The respondent argues that the incidents relate solely to the performance of the applicant's job and are governed by the collective agreement. The applicant admits that he filed grievances in relation to some, but not all, of these incidents.

8A workplace violence incident report was filed against the applicant on February 27, 2006, outlining incidents of workplace harassment. The applicant alleges that the incidents were without merit, not brought to his attention at the time, and that was he disciplined in relation to them. The respondent's position is that these incidents are out of time, the applicant was exonerated by the investigation that was conducted into the allegations against him; and they have no connection to the one allegation which was filed in time.

9The applicant began to experience stress, anxiety and paranoia for which he sought medical attention on or about May 8, 2006. He was absent from work on medical leave and was required to use sick days during this period from his sick bank. His WSIB claim was denied on June 9, 2006. The applicant returned to work on May 25, 2006, to a different position. He participated in a WSIB mediation on May 30, 2006, which resulted in an agreement that he would return to "Solid Waste" and that management would not approach him without union representation. The applicant alleges that when he returned to work he was subject to a number of reprisals from June 6, 2006, to February 22, 2007. He filed a grievance in relation to these allegations on May 16, 2007. A hearing was held November 6, 2008. The grievances were denied on December 12, 2008. The respondent's position is that these incidents are out of time, relate to the applicant's job performance and were the subject of a labour arbitration following the denial of the grievances. In addition, the allegation of June 15, 2006, involving a reprimand was, by the applicant's own admission, resolved in his favour and all deducted hours were returned to him.

10The applicant alleges other incidents of discrimination, including a racist joke which was told to a co-worker and then repeated to him on or about September 27, 2007; a reference made to the "KKK" at a workshop for harassment in the workplace on January 18, 2008 (an Application was filed by Alan Shreve to the Tribunal in relation to this incident); a racist comment made on July 30, 2008, which was reported to management; and a racist comment made to Alan Shreve on October 28, 2008. The respondent's position is that the sole incident affecting the complainant which was filed in time is the incident of July 30, 2008. The only other incident which is timely and which occurred on October 28, 2008, did not involve the applicant and is already the subject of the Application filed by Mr. Shreve, as cited above.

ANALYSIS

11Section 34 of the Code sets a limitation period for bringing applications alleging infringements of the Code:

34.1(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 is 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 affect by the delay.

12The Application was filed on May 21, 2009. The only allegations which fall within the statutory one-year time limit under the Code are the allegations of racist comments made on July 30, 2008, and October 28, 2008. Despite the fact that it is timely, the incident which occurred on October 28, 2008, did not involve the applicant and is the subject of another application by the person who was directly affected. That Application has been heard by the Tribunal and a Decision is pending.

13The applicant's allegation of a poisoned work environment could encompass the experiences of others who work with the applicant and self-identify with the grounds of race and colour. However, in this case, Mr. Shreve is the person directly affected by the allegation and, in my view, it is not appropriate for me to determine that issue until the Tribunal has rendered a decision in Mr. Shreve's application.

14Prior to the hearing of Mr. Shreve's application, the Tribunal rendered an Interim Decision on February 8, 2012 (the "Shreve" decision cited above), which deals with the timeliness of the allegation that Mr. Shreve was the subject of a racial slur in February 2005. That allegation is also contained in the Application before me. The Tribunal refused to extend the time for Mr. Shreve to file in relation to this allegation. This decision is not determinative with respect to whether the applicant before me may proceed to have this allegation adjudicated. The test for this allegation, and the others which are out of time, is whether the applicant can demonstrate good faith with respect to the delay, or a series of events which culminates with the incidents which are in time.

15I agree with the respondent that the applicant's written materials are not responsive on the issue of good faith delay and contain inappropriate accusations about the motives of counsel for the respondent. I would caution the applicant's representative to take greater care in the preparation of such material in the future.

16During the oral submissions the applicant was asked to explain why he did not file an application with the Tribunal before the expiry of the statutory time limit. The applicant indicated that he did not believe that he could file a human rights application until the grievance process was complete. He alleged that he made a call and was told that "everything had to be exhausted" before he could file an application. This explanation is insufficient to demonstrate the good faith requirement of section 34 for a number of reasons. First, the applicant did not say when he made the call or whether it was made to the Tribunal or to the Ontario Human Rights Commission, the institution which received complaints until June 2008. Second, despite his explanation that he was told not to file before he had exhausted other processes, the applicant filed this Application before his outstanding grievances were resolved. The Application was then deferred pending the outcome of those grievances. Third, the applicant chose not to file a grievance in relation to some of these incidents which he alleges are reprisals against him for speaking out about racism in his workplace. Accordingly, there was no process which he was required to complete before filing an application with the Tribunal. To permit these allegations to proceed would be tantamount to giving virtually no meaning to the limitation period established by the Code and the good faith requirement which creates the basis for an exemption in appropriate but limited circumstances.

17Given that I have found that the applicant is unable to establish good faith in relation to delay, I do not consider it necessary to determine the issue of prejudice.

18The remaining question is whether there is a connection between the last incident, which is in time, and the others, which are out of time. In R.M. v Toronto Police Services Board, 2011 HRTO 410, the Tribunal observed at paragraph 20:

Generally, events are not part of a series of incidents if there is a break in the temporal connection between them. A gap of more than one year between events has been considered in some cases to interrupt the series.

19The incidents which are in time involve allegations of racist comments in the workplace. Even if the events of February and March 2005, the alleged acts of reprisal in 2005 and 2006, the applicant's return to work from medical leave in May 2006, and the allegations of reprisal from June 2006 to February 2007 are connected in some way, I would find that the gap of more than a year between those incidents and the incidents in June and October 2008 constitutes an interruption in the series. More importantly, only the incident of February 2005 is remotely similar in character to the allegations which are in time. While the applicant may perceive this incident as part of a series, it is my view that a gap of more than three years is sufficient to interrupt the series for the purpose of extending the time limit under section 34 of the Code.

20The allegations of a racist joke which was told to a co-worker and then repeated to the applicant on or about September 27, 2007, and reference made to the "KKK" at a workshop for harassment in the workplace on January 18, 2008, are of essentially the same character as the allegations which are in time. I note that Mr. Shreve has also filed an Application in relation to January 18, 2008, incident. In my view, these allegations constitute a series of incidents and are not so remote in time from the allegations which are in time as to create a gap between them.

21Accordingly, I find that there are four allegations which the applicant may pursue, which are alleged to have occurred on or about September 27, 2007; January 18, 2008; July 30, 2008; and October 28, 2008.

22Given the connection to the Application of Mr. Shreve, this matter will be adjourned pending the release of the Decision; following which a case management conference call will be scheduled to determine the next steps in this matter.