HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ghiansaroop Persaud
Applicant
-and-
Toronto Civic Employees’ Union Local 416 and Mark Ferguson
Respondents
DECISION
Adjudicator: Kathleen Martin
Indexed as: Persaud v. Toronto Civic Employees’ Union Local 416
APPEARANCES
Ghiansaroop Persaud, Applicant ) Self-represented
Toronto Civic Employees’ Union, )
Local 416 and Mark Ferguson ) Ryan Goldvine, Counsel )
1This is an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) filed on December 9, 2008. The original Application alleged discrimination in employment and membership in a vocational association on the basis of race, colour and disability.
2In an Interim Decision dated June 9, 2010 I dismissed all of the allegations made against the applicant’s employer, Toronto Community Housing Corporation (“TCHC”), and one of the individual respondents, and those allegations made against the union and Mr Ferguson which arose more than a year prior to the date of Application, on the basis of delay: 2010 HRTO 1315; reconsideration refused 2010 HRTO 2550. After hearing all of the applicant’s evidence in chief, I found that any delay in filing his allegations against his employer and Mr. Ballantyne (all of which occurred more than 12 months before the filing date) had not been incurred in good faith. I also found that the incidents involving the union and Mr. Ferguson which occurred more than 12 months before the filing date were not part of a series of incidents nor had the applicant established that any delay in proceeding with these allegations had been incurred in good faith.
3The hearing was reconvened to hear the cross-examination of the applicant and the respondents’ witnesses on the remaining timely allegations against the union. These allegations were summarized at paragraph 16 in the Interim Decision as follows:
On March 12, 2008, the union told the applicant that he could not run for certain union positions because he was on WSIB benefits, which the applicant alleges constitutes discrimination based on race.
On April 9, 2008, the applicant alleges that he was attacked in a humiliating way by a union member who implied that he should not be in attendance at a union meeting. The applicant states that the member was implying that because he was black he should not have a disability. The applicant alleges that the union chair and grievance chair were present but failed to interject.
In the period March 18, 2008 to May 24, 2008, the applicant brought a number of concerns, including in respect of the foregoing allegations, to the attention of the union’s president and national president but the union and its representatives did not appropriately respond to his inquiries.
At an unspecified date in 2008, the applicant attempted to volunteer with the union’s health and safety committee but was denied a position, which the applicant appears to allege was based on race.
4The applicant self identifies as a “Black person living in Canada” and indicates that he is of East Indian origin. In essence, the applicant’s claim is that he was discriminated against by the union in the ways described above because he is “black”.
The Proceeding
5At the outset of the reconvened hearing, the applicant renewed his request that I recuse myself for the same reasons provided earlier in his Request for Reconsideration. I ruled orally that his request was denied. In the absence of the applicant citing any new grounds for his request, I do not find it necessary to provide any further reasons other than those already contained in the Reconsideration Decision.
6In addition, at the outset I addressed the respondents’ Request for an Order During Proceeding objecting to the applicant relying on additional documentation filed after the Interim Decision on the basis of relevance and timeliness. The documentation included correspondence about an incident in 2004, a Labour Board Information Bulletin about section 74 in the Labour Relations Act, a letter related to the applicant’s WSIB claim, an extract from the Workplace Safety and Insurance Act, and two documents that appeared to relate to union electoral issues.
7The applicant did not file a response to the union’s Request. In addition, when asked at the hearing, he did not explain why he was attempting to rely on the documents now (given that he had concluded his evidence in chief), or how the documents were relevant to the timely allegations remaining. In the circumstances, I ruled that the documents would not be admitted. Even ignoring the late filing, in the absence of an explanation as to why the documents are relevant to the remaining timely allegations, I saw no reason to accept the documents into evidence.
8Following the in-person hearing, a conference call hearing was held for the purpose of hearing final submissions and the parties subsequently filed additional written submissions.
The Issues
9Section 6 of the Code provides as follows:
- Every person has a right to equal treatment with respect to membership in any trade union, trade or occupational association or self-governing profession without discrimination because of race….
10The applicant did not expressly refer to section 6 in his submissions. Instead he argued that he had been discriminated against contrary to the Code and also contrary to the collective agreement (obviously, the latter is not a matter I can address). The respondents took the position that only section 6 was applicable given that the applicant is not employed by the union and that only certain allegations (the allegation pertaining to the election and the applicant’s request to volunteer) fell under the scope of section 6. The applicant did not challenge the former submissions but did suggest through his submissions that he could properly complain about all of the alleged actions.
11Based on the foregoing, I have approached the remaining issues in this Application as alleging a denial of a right to equal treatment with respect to membership in a trade union. While I am not convinced that s. 6 should be as narrowly interpreted as the respondent suggests, I do not find it necessary to determine whether all of the allegations fall within “membership in any trade union”. Even assuming that the allegations do properly fall under s. 6, I am not convinced that the applicant has met his onus of proving that race was a factor in his treatment by the respondents in the incidents that occurred.
12One final comment should be made about the scope of the issues. The applicant was given a full opportunity to explain his allegations when he gave his evidence in chief, and from that evidence I summarized the allegations as set out in paragraph 3 above. Notwithstanding this process, in final argument, the applicant’s submissions went beyond the allegations summarized in various ways. For example, the applicant continued to assert that the union had acted inappropriately in its involvement in negotiating his departure from active employment for the purpose of applying for benefits under the Workplace Safety and Insurance Act and in the handling of his grievances (allegations that had been dismissed as untimely).
13In determining the issues in this case, I have based my decision on the evidence given and submissions received subject to the submissions being related to the timely allegations remaining.
The Evidence and Findings
14I heard evidence about the allegations from the applicant and three witnesses for the respondent: Ronald Johnson, the union’s chief of stewards; Daria Ivanochko, Assistant Managing Director for the national CUPE union; and Andrea Addario, the national representative assigned to the respondent local during the period of the applicant’s complaint to the respondent union. On agreement of the parties, the latter two witnesses were heard by telephone conference.
15Mr. Ferguson did not attend the hearing or give evidence. The union took the position that there were no allegations against him and therefore there could be no findings against him (a submission with which the applicant did not disagree). I agree. Thus, the issue that remains is whether the union respondent violated the applicant’s rights in the alleged incidents.
16I will now turn to a review of the evidence and findings.
Background
17The applicant has been employed as a permanent full-time employee by the TCHC since August 15, 1994, although he ceased to be actively at work on May 14, 2007. On that date, following a meeting with representatives of TCHC and his union, the applicant left active employment and applied for benefits from the Workplace Safety and Insurance Board (“WSIB”). The applicant was subsequently approved for WSIB benefits and continued to be in receipt of such benefits during the time of the alleged events addressed below.
a. Exclusion from Nominations for Union Positions
18The facts pertaining to this allegation were not in dispute.
19On March 12, 2008 at the housing unit meeting elections, the applicant was nominated for the Bylaw Review Committee and the Political Action Committee but was told that he was unable to run because he was not at work (the applicant was on WSIB benefits at the time). The applicant asked that this be put in writing. At the next unit meeting, the Chair stated that there was a mistake made and that the applicant should have been permitted to stand for election. The elections were re-run at this meeting, and while nominated for each committee, the applicant states that he “chose” not to run because notice had not been given to the membership about the election, which the applicant believed was required by the union’s constitution.
20The applicant states that he was denied the right to run because of race and “union politics”. He contends that he was the only person who was denied the right to run. The applicant states that in mentioning “union politics” he is referring to the fact that if you are a “minority” and try to get funding for training, you are shut out. In his final submissions the applicant also referred to this allegation as being based on disability, although he did not expand upon this point. The applicant also complains that he did not receive a copy of the stated reasons as requested, although he concedes he got a copy of the minutes from the meeting which set out the reason for the initial objection to him running as the fact that he was not a “working member”.
21Based on the evidence, I cannot reasonably conclude that race was a factor in the union’s initial refusal to permit him to stand for a position on the committees. Apart from the applicant’s assertion to that effect, there is no foundation on which I can draw any inference that race was considered in any way in denying him the initial opportunity to run in the election. I do not find that the vague unparticularized allegation regarding a “minority” being shut out from funding for training to be of any assistance in determining what occurred in an election in a specific membership meeting. Nor do I find that the failure to give him a separate letter about the reasons for being denied the option of running to be of any significance particularly when he received a copy of the minutes from the meeting which provided the reason.
22It would appear that the stated reason the applicant was excluded was his non active status in the workplace. To the extent the applicant suggested in cross-examination that this explanation was inaccurate as it was based on an “edited” version of the minutes (i.e. suggesting that the minutes do not reflect the actual reason), I do not accept this contention. The suggestion of the minutes being edited was raised in his cross-examination and there is no other evidence, other than the applicant’s contention, supporting that the minutes were edited to include this as the reason. Contrary to the applicant’s submissions, while Mr. Johnson agreed that the minutes are not always a full representation of what occurs at a meeting, he did not suggest that this reason was not the initial explanation given for denying the applicant the opportunity to run.
23Arguably, the facts (of denying the applicant the opportunity to run) could give rise to a Code claim on the ground of disability. However, I do not find it appropriate to consider such a claim. I gave the applicant multiple opportunities to identify his allegations, including being expressly directed at paragraph 43 in the Interim Decision dated June 9, 2010 to tell the Tribunal if he was relying on anything other than race, and as well at the outset of the recommencement of the hearing. In response, the applicant confirmed that race was the only ground.
24In any event, even if I considered a claim based on disability, I find no basis for a finding of a violation of the Code. While the union initially prevented the applicant from running in the election, that decision was corrected at the next meeting, with the result that it is difficult to see how the applicant was adversely treated. I do not find the applicant’s concerns about compliance with the union’s constitution to be germane to the Code issues before me, particularly when he did not suggest in his evidence or submissions that the constitutional issue was related to his claim of discrimination beyond it being the reason he declined the nomination.
b. Alleged Failure to Respond to Request to Volunteer
25The factual foundation of this allegation was also uncontested.
26The applicant testified that he sent a letter to the local president offering to volunteer in the area of health and safety dealing with the “safety and insurance cases” for the union. The applicant received no reply to his offer, which he “assumed” was because of his race. He believes that this is because he did not get a response and the union has no use for “non-whites”.
27The applicant did not dispute that the position of health and safety in the union has historically been a paid position.
28I do not find that the applicant has established that there is a nexus between the union’s non-response to his offer to volunteer and the applicant’s race.
c. Failure to Interject in Humiliating Treatment of the Applicant
29The applicant also complains about his alleged treatment in a union meeting.
30In his evidence in chief the applicant testified about his treatment by a union member and the union’s failure to interject in such treatment at the meeting on April 9, 2008, which resulted in the articulation of the allegation set out in paragraph 3 above. In his cross-examination, the applicant gave further evidence about the incident, although it was confusing in terms of both the content and timing of the comment.
31At one point the applicant stated that at the March meeting a “brother” was in attendance who had a problem with the “WSIB” and that the applicant had begun to speak on the issue. In response, another member told the applicant to shut up and that he “was not supposed to be here”. The applicant states that the member is white and he is black and he felt that the member was threatening him and the union did not interject.
32At a later point in his evidence the applicant recounted a different exchange at the April meeting. In that exchange a union member stated “let me fuck him in the ass” referring to the applicant. The applicant further commented that this member was white and he was black, thus implying there was some racial element that was operative. The applicant also commented that he knows the character of the individual, suggesting that is how he knows there is a racial component.
33Even if I accept that both comments were made, the applicant has not provided any evidence to link either comment to race under the Code, or from which an inference could be drawn that the comments were related to race. The thrust of the applicant’s submission is limited to the assertion that because he is “black” and the speakers were white there is a racial component to the humiliating treatment. This is not sufficient evidence on which any reasonable inference can be drawn that race is a factor in what transpired.
34Before leaving this section, I note that during his closing submissions, the applicant asserted that the comment made to him in the April meeting was “let me fuck his black ass” and not “let me fuck him in the ass”. This is contrary to the evidence and the applicant’s own written complaint at the time. As such I do not accept this assertion. Further, this conflicting “evidence” or submission provided by the applicant undermines his credibility.
d. Union’s Alleged Failure to Respond to his Allegations
35The applicant’s final allegation pertains to the alleged deficiencies in the union’s response to various complaints made by him. While much of the chronology of what occurred was uncontested, the parties took very different positions with respect to the conclusions I should reach.
36The basic chronology of what happened is captured in a series of letters, which was supplemented by oral evidence. The oral evidence was provided by the applicant and the respondents’ evidence came from Mr. Johnson (who was identified in some of the allegations) and two representatives who work for the national union who were involved in responding to the allegations. There were two members of the local executive who were not available at the time of the hearing (the local president who was sent the applicant’s first letter is deceased and the local chair was unavailable because he was awaiting surgery for a serious medical condition). The applicant did not take issue with the fact that the two local witnesses were legitimately unavailable, nor the submissions of the respondents that the national union which ultimately responded to his “complaint” did so on behalf of the local union. I have therefore considered the respondent union’s response to be that provided by the national union.
37On March 18, 2008, the applicant wrote a letter to Brian Cochrane, then local president of the union, raising a number of concerns. The letter identifies the applicant as a “visible minority” and refers to having been the target of social and racial hatred. The letter uses inflammatory language in describing the “deviously conceived strategy” used by various union representatives and a representative of the employer to effect his “constructive dismissal” and lists seven points, only two of which appear to have any connection to the applicant’s race. He refers to being called a “turbanhead” by a co-worker/union steward, and he asserts that on January 17, 2008, during the counting of the ballots at a polling station, he was told by Ron Johnson that he was going to “fuck my Black ass and was going to use salt and sand”. Mr. Johnson is a different person from the person the applicant referenced in the similar allegation discussed in paragraph 32 above.
38With respect to the “turbanhead” comment, the applicant testified that it occurred in 2006 and he addressed it with the union member involved who agreed not to say it again – suggesting that it had been resolved by him. The applicant clarified that the concern he was raising in the letter related to the union member writing a letter about him, giving it to management, and the union not providing him with a copy of the same. Given the applicant’s testimony and the absence of any reference to it in the applicant’s final submissions, I do not address the alleged comment below beyond its reference in the testimony of the witnesses.
39In a subsequent letter dated April 15, 2008, the applicant wrote again to the local union president. In this letter, he outlined a different concern. He complained about the April 12th membership meeting, suggesting it was contrary to the union’s constitution, and made the assertion that, at the meeting, a member made a comment to the effect – “let me fuck his ass”. On its face this letter did not appear to raise any issues of discrimination, although the applicant testified that the union should have known that it did since he had identified himself in the February 18, 2008 letter as a “minority”.
40The applicant states that he received no response to either letter so he followed up with a letter to the national president on May 24, 2008. In this letter, the applicant complains about not participating in the electoral process and asks that the national office “investigate this systematic racial exhibit by local 416 executives”.
41In a letter dated July 7, 2008, Ms. Ivanochko, assistant managing director in the organizing and regional services department of the national office, responded. Ms. Ivanochko’s response was based primarily on information received from Andrea Addario, the national representative who was servicing the local union at the time and who had looked into the issues for the national office.
42In her letter, Ms. Ivanochko characterized the applicant’s letter as raising two issues: an allegation of not being able to participate in a democratic electoral process; and an allegation of systemic racism. Ms. Ivanochko responded that there was no evidence that he had been denied the opportunity to run in any electoral process (noting that he had participated in the elections for the Housing Unit and, after being initially deemed ineligible, was given an opportunity to run for the Bylaw Review Committee) and referenced the applicant’s participation in various union activities. On the issue of systemic racism, Ms. Ivanochko indicated that the allegation was strongly denied by the local, although she encouraged the applicant to work with the local union to resolve his issues.
43Ms. Addario separately testified about her efforts to look into the allegations. Ms. Addario stated that she spoke to members of the local, including the president, the local secretary, the unit chair, and a retired colleague. She states that anyone who was implicated denied the allegations, although she could not recall if she spoke to Mr. Johnson. She states that she did not speak to the applicant directly because the alleged comments and events had occurred prior to her servicing the local and it appeared that the allegations were related to his grievances. Ms. Addario stated that she thought she would “interact” with the applicant on that basis. She also referenced the flat denial she had received and indicated that she believed that Ms. Ivanocko would be reporting back to him.
44Ms. Addario also indicated that she became aware that the applicant had regularly been into the local for training sessions, had received funding to participate in the “Workers of Colour Conference” in May 2008, and attended most of the Labour Council meetings.
45In a letter dated July 14, 2008, the applicant responded to Ms. Ivanochko. With respect to the election, he complained again about the union’s failure to give him a letter and stated, “on the race question, inept you’re, so you agree with Mr. Johnston to Fuck MY BLACK ASS”.
46Ms. Ivanochko testified that she found this last letter to her vulgar and threatening, and because of that did not respond to it. As for the applicant, while he acknowledged that he had been invited to raise issues with the local union, he stated that he did not raise the issues again because he was still waiting for a response to his last letter from the national union. The applicant indicated that he was frustrated and that it did not make sense to go back to the local since they had ignored him when he first wrote to them.
47I also heard from Mr. Johnson about the alleged remark attributed to him. Mr. Johnson denied the comment stating that on that particular day he was present as a liaison officer (to deal with disputes involving ballots) and that it is not his “style” to make such a remark.
Did the Union Violate the Code?
48In his final submissions, the applicant expanded upon his allegation about the union’s failure to respond to his concerns. While initially the applicant had framed his concern as being strictly about the union’s alleged failure to properly investigate certain allegations, in final submissions he attempted to provide additional evidence about some of the historical incidents underlying the concerns brought to the union’s attention, and separately argued that Mr. Johnson had discriminated against him by making the remark identified (as distinct from the applicant complaining about it to the union).
49I do not find it appropriate at this stage to consider new evidence about incidents addressed in the evidence.
50As for the allegation that Mr. Johnson actually made a discriminating remark, even if I were to consider it as a separate allegation, I am not satisfied that there is sufficient evidence on which I would conclude that the remark was actually made. I note that this remark was raised for the first time in the letter to Mr. Cochrane in March 2008 and pertained to an incident that occurred two months earlier. The applicant provided no explanation as to why he did not raise it at the time it allegedly occurred. Further, I do have concerns about the reliability of the applicant’s evidence, as reflected in the initial decision on delay (see paragraph 32) and in some of the allegations made in this part of the hearing (see paragraph 30-34 above). Given my concerns, in the face of Mr. Johnson’s denial, I do not find there is sufficient evidence to conclude that the remark was made.
51The core of the remaining allegation is the sufficiency of the union’s response to the applicant’s allegations. The substance of those allegations appears to be a general complaint of racism in the local and the specific comment allegedly made by Mr. Johnson. The applicant alleges that the union failed to appropriately respond to his allegation by not interviewing him, and that he strongly believes that they would have come to a different conclusion had they done so. The applicant suggests that the union’s only concern was “white washing” the situation, thereby encouraging the culture of racism and discrimination that exists in the local.
52In certain contexts, the Tribunal has recognized that a duty not to discriminate may include a duty not to condone or further a discriminatory act that has already occurred and to investigate a complaint of discrimination. See B.L. v. Marineland of Canada Inc., 2005 HRTO 30 at paras. 51-53 and the cases cited therein; and Bekele v. Cierpich, 2008 HRTO 7 at para. 76. In the area of employment, where most of the cases have been generated, the Tribunal has stated that the standard to be applied in assessing an employer respondent’s response is one of reasonableness and not correctness or perfection (see B.L., supra, at para. 60).
53The applicant did not rely on any cases in support of his claim that such a duty should be imposed on a union in an application relying on section 6 of the Code, although it was implicit in his submissions. The respondents, while acknowledging there “may” be a duty, indicated that even if there is such a duty, what transpired in this case was reasonable given the allegations made.
54I have carefully considered what occurred in this case, and have concluded that, even assuming the union had an obligation to take reasonable steps to investigate the allegations made, in all of the circumstances, the respondent union’s conduct was reasonable.
55In this case, the applicant made a broad allegation of racism and detailed a number of concerns – most of which had no apparent connection to the Code. The exceptions were two specific allegations, one of which (being called a “turbanhead”) the applicant indicated was not of concern to him. Against this backdrop, I accept that the union viewed the allegations as being limited to the general allegation of racism and the two specific remarks.
56The union did take some steps to investigate the allegations. While the union’s actions may have lacked some promptness or rigour, the union did take action through the national office to investigate the applicant’s allegations by interviewing members of the local. It is clear based on its inquiries that it had some doubt about the applicant’s assertions because the allegations were strongly denied, and on that basis saw no reason for independently pursuing them further.
57While it is arguable that the union could have done more, such as interviewing the applicant, I do not find its response to be so inadequate or unreasonable as to amount to condonation or perpetuation of alleged discrimination. The allegations were for the most part general in nature, the union investigated the allegations and reported back to the applicant and encouraged him to work with the union to resolve his issues. In all of the circumstances, there was nothing preventing the applicant from explaining why the result was not satisfactory and continuing to seek a different response from the union. The applicant’s decision to not do so was a choice he made: it does not detract from the fact that he was encouraged to do so.
58I do not find that the last letter sent by the applicant changes my view of what transpired. While the applicant suggests that he was owed a response, I accept Ms. Ivanochko’s evidence that she found the letter vulgar and threatening and therefore did not respond to it. Given the content of this letter, I do not find Ms. Ivanochko’s conduct unreasonable.
59Thus, in all of the circumstances, I do not find that the union breached the Code.
60The remaining part of the Application is therefore dismissed.
Dated at Toronto this 26th day of January, 2012.
”signed by”______________
Kathleen Martin
Vice-chair