HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Emmanuel Oxley
Applicant
-and-
The Corporation of the City of Vaughan
and Paul Armstrong
Respondents
-and-
Vaughan Professional Fire Fighters Association
Intervenor
DECISION
Adjudicator: Douglas Sanderson
Indexed as: Oxley v. Vaughan (City)
appearances
Emmanuel Oxley, Applicant
Self-represented
The Corporation of the City of Vaughan, Respondent
Nancy Salerno, Counsel
Paul Armstrong, Respondent
Glenn Christie, Counsel
Vaughan Professional Firefighters Association, Intervenor
Cynthia Petersen
Introduction
1This is an Application filed on March 24, 2010 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, place of origin, citizenship and ethnic origin.
BACKGROUND
2The applicant is a firefighter with the organizational respondent. The applicant describes himself as a black man of African descent, who was born in the Caribbean. The applicant alleged that the respondents denied him the opportunity to drive the pumper truck at station number six (“station six”) to which he was assigned between September and December 2009.
3The applicant also alleged that the individual respondent made derogatory remarks about food the applicant prepared in his native custom and directed the applicant not to bring this food to work in the future.
4Finally, the applicant alleged that the individual respondent required him to remove a cap he was wearing indoors at station six, despite the applicant’s explanation that he was cold.
5The Intervenor is the trade union that represents firefighters employed by the organizational respondent.
EVIDENCE
6The hearing of this matter was held on May 9, 2011. At the outset of the hearing, I ordered the exclusion of witnesses. I heard evidence from the applicant and four witnesses for the respondents, including the individual respondent. The parties entered two books of documents as evidence out of which I refer to four documents in the following decision. I have set out below a summary of the material evidence and I have discussed any disputes in the evidence, along with the reasons for my findings.
The Applicant
Driving at Station Six:
7The applicant’s evidence was that firefighters normally rotate through the positions on a fire truck, including driving. The applicant stated that there are two trucks at station one. The applicant stated that he began driving fire vehicles in the spring of 2000 and rotated through all of the positions on the trucks while at station one. The applicant stated that when he was transferred to station six in 2009, he was never allowed to drive the fire trucks, although the trucks were the same as those found in station one.
8The applicant acknowledged that he had an accident while driving a fire vehicle in December 2007. The applicant pointed to a letter he received from his Platoon Chief noting the accident and assigning the applicant remedial driving training. The letter states the applicant would be placed “back in the driving rotation” after successfully completing the training.
9The applicant also referred to his work schedule in 2009 at station one. The schedule shows that he drove both trucks at station one on a regular basis between January and September 20, 2009. The schedule also indicates that he drove on only one day between September 21, 2009 and December 28, 2009, when he was assigned to station 76 (also referred to as station six). The applicant testified that even though he was not the most junior driver at station six, he was still not allowed to drive.
10In cross examination, the applicant agreed that he did not ask to drive when he was transferred to station six and agreed that Fire Captains have to decide how to best deploy their personnel. He noted, however, that in his experience, firefighters usually rotate through the different positions. The applicant also stated that it was not his role to question the Captain if he thought his driving skills were not adequate. The applicant stated that he did not ask for training to operate the vehicle at station six because he drove the same vehicle at station one. He did not challenge, however, the suggestion that there were some differences between the trucks at station one and station six.
11The applicant also testified in cross examination that Firefighter Schroder drove six tours (a tour is about four shifts) and two other firefighters each drove for two tours while the applicant was at station six. The applicant described all three of these firefighters as white. The applicant agreed that he was not aware that Firefighter Schroder drove more than the other firefighters because of a medical issue. The applicant acknowledged that driving is a less physically demanding position and that assigning someone to driving duty could be an accommodation.
12The applicant acknowledged that he knew the individual respondent prior to his transfer to station six and had spoken to him about job related matters.
The Applicant’s Food:
13The applicant testified that he brought fish prepared in his native custom for his lunch on October 6, 2009 while working at station one. When he warmed the fish at lunch time, the individual respondent stated that the fish “smelled stink”. The applicant did not appreciate this comment. On October 8, 2009, the applicant was sitting down to eat when the individual respondent told him not to bring fish to work anymore. On November 21, 2009 while working a split shift, the individual respondent asked the applicant if he had brought fish to work again. The applicant asked him why he wanted to know and the individual respondent replied that something smelled like “that fish shit you brought before”.
14Moreover, on November 25, 2009, the applicant brought a dish prepared in his native custom for himself and another firefighter. Firefighter Schroder asked “what is that scent” and when the applicant asked why he asked, the individual respondent replied that it “smelled stink”. The individual respondent then positioned himself over the applicant’s left shoulder and asked him if he minded if he watched the applicant eat. The applicant responded that he was not comfortable with this and did not like derogatory comments made about his meals.
15In cross examination, the applicant confirmed that he continued to bring fish to work after the incidents he described in his testimony.
The Cap:
16The applicant testified that when he came to work at station six on September 28, 2009 at approximately 5 p.m., the station was being painted and, as a result, the doors and windows were open. According to the applicant, the outside temperature was in the low single digits. The applicant was wearing a baseball cap inside the station. The individual respondent directed the applicant to remove the cap while indoors. The applicant explained that he was wearing the cap because he felt cold. The individual respondent replied that the applicant was wearing a sweater and should not feel cold. The applicant stated that his head was cold and the individual respondent stated that he was indoors and should not feel cold.
17In support of his view that he was allowed to wear a cap inside the station, the applicant referred to the organizational respondent’s Standard Operating Guidelines Regarding Uniforms, which states as follows regarding baseball caps at paragraph 3.2:
Baseball caps (black/navy with appropriate VFRS or Association crest) may be worn while performing station maintenance and/or training, not requiring a safety helmet.
18The applicant testified that he understood that wearing a baseball cap inside the station was not forbidden by the terms of this Guideline. The applicant clarified in cross examination that the individual respondent asked him to remove his cap at around 7 p.m. and acknowledged that an Environment Canada report for that day indicated that the temperature at Pearson International Airport was over 10°C at 7 p.m. The applicant described his cap as a baseball cap with a gold crest. The applicant acknowledged that the firefighter at station six who has less seniority than him actually joined the organizational respondent on the same day.
19In re-examination, the applicant described an earlier incident, not involving the individual respondent, when he had been directed to remove a toque and sweater when he was cold. The applicant felt singled out by this direction and believed that the direction had been discriminatory. He complained to human resources, but the organizational respondent did not agree that he had been treated improperly. Consequently, the applicant concluded that he could expect no assistance if such issues arose in the future.
Janet Ashfield
20Janet Ashfield is the organizational respondent’s Director of Human Resources and has held that position since December 2006. She had over 20 years of experience in human resources prior to assuming that role. She is responsible for functions such as recruiting, labour relations, training and policy and procedure development. Ms. Ashfield described the Respectful Workplace Policy and the Workplace Violence Policy, which are the policies the organizational respondent has in place to address harassment and discrimination in the workplace. The Respectful Workplace Policy, for example, was promulgated in November 2007 to replace a less detailed policy and to bring the organizational respondent’s policy up to date. The policy defines such terms as discrimination, harassment, personal harassment and prohibited grounds of discrimination. Ms. Ashfield indicated that employees may make a complaint under the policy by speaking to anyone in a supervisory capacity, human resources or their union. The organizational respondent made employees aware of the policies through classroom training, consisting of half-day sessions. Ms. Ashfield confirmed that both the applicant and the individual respondent attended the training. She also confirmed that the applicant did not make a complaint under the organizational respondent’s policies and did not file a grievance under the collective agreement between the organizational respondent and the intervenor regarding the human rights issues raised in his Application.
Larry Bentley
21Larry Bentley has been a Deputy Fire Chief for the organizational respondent since October 2006. He has also held positions as a Platoon Chief, Captain and Firefighter and has 32 ½ years of service with the Vaughan Fire and Rescue Service (“VFRS”). Deputy Chief Bentley was familiar with the applicant, noting that the applicant joined the VFRS in October 1998. Deputy Chief Bentley explained that the applicant was transferred to station 76 (also referred to as station six) in the fall of 2009 for operational reasons.
22Deputy Chief Bentley reviewed the letter of January 12, 2008 regarding the vehicle accident that occurred when the applicant was driving and the remedial training assigned. The letter stated that the applicant would be placed back in the driving rotation after completing the training. Deputy Chief Bentley noted that the letter was from Platoon Chief Fraser and assumed that he used a driving rotation. Deputy Chief Bentley explained that Station Captains are not required to implement rotations. Rather, Captains decide who drives vehicles, based on their assessment of competence, confidence etc. According to Deputy Chief Bentley, safety is the main factor in determining who drives.
23The applicant had never spoken to Deputy Chief Bentley about driving and had not complained to him about the individual respondent.
24Chief Bentley stated that he was familiar with the Standard Operating Guidelines regarding uniforms. He explained that baseball caps are permitted when working outside of the station or when working on apparatus in the workplace.
25In cross examination, Deputy Chief Bentley agreed that modified work could be assigned depending on an employee’s medical functionality. He agreed that modified work could be offered when a firefighter was not able to carry out his or her normal duties. When the applicant pointed out that he had driven on several occasions, Deputy Chief Bentley reiterated that all individual Captains have different ways of assigning work.
26Deputy Chief Bentley stated that wearing baseball caps indoors was “frowned upon”, but was not actively prevented. When asked if it was acceptable to wear a hat inside if one was cold, he stated that this would be permitted if the hat is in good taste and noted that VFRS hats are preferred.
Paul Armstrong
27Paul Armstrong, the individual respondent, has been a Captain with the VFRS since 1997 and has 32 ½ years of service. He described a Captain’s general duties as assigning truck positions, dealing with the public regarding fire prevention, supervising firefighters and responding to emergency situations. The positions on a truck are driver, hydrant, hose and officer (i.e., the Captain). The driver’s duties are to drive the truck to the scene of an emergency, to know and operate the equipment on the truck, and to deliver water. The individual respondent’s evidence was that the trucks operated by the VFRS are not all the same. He explained that the pumper truck at station six had a light tower and sign board that other pumper trucks in the VFRS fleet did not have, which is equipment the driver would operate.
28The individual respondent testified that he knew the applicant prior to September 2009. They were in the same platoon and would attend platoon functions. The individual respondent stated that they had spoken occasionally and that the applicant had asked him for advice regarding the promotion process. The individual respondent had asked the applicant about Trinidad (e.g. sites to see, places to go) when his brother was assigned to work on the island and the applicant assisted in this regard.
29The individual respondent testified that as the station Captain he is responsible for deciding who drives the vehicles at his station based on his assessment of firefighters’ skill set, experience and his confidence in their abilities. Firefighters transferred to his station do not automatically begin driving for him. The individual respondent was aware that the applicant had had an accident. He explained that it was his practice to discuss the abilities of firefighters with other officers for whom they have worked. He stated that he had spoken to an officer for whom the applicant had worked, who informed him that the applicant had put a truck though an intersection sideways. Based on this history, the individual respondent was not prepared to allow the applicant to drive. He stated that firefighters will sometimes ask about driving, but the applicant did not. The individual respondent also stated that the applicant showed no interest in the new vehicle at station six and the new equipment on that vehicle.
30The individual respondent testified that he did not assign driving equally among the firefighters working at station six. Firefighter Schroder drove more often than the other firefighters after he returned to work following a back injury. He explained that driving is less strenuous than the other positions; therefore, he assigned driving to Firefighter Schroder more often because he was less likely to re-injure his back.
31The individual respondent’s evidence was that on a date in September 2009 the applicant came to work at change over time, between 4:30 p.m. and 5:30 p.m. The individual respondent was in the kitchen, which is where the firefighters start their shifts. The applicant entered wearing a blue cap with Captain’s insignia on it. The individual respondent asked him why he was wearing such a cap, to which the applicant replied to the effect that “we are all officers”. The individual respondent explained that there is a rank structure in the service; therefore, he corrected the applicant by stating that they were not all officers. He was aware that the applicant had sought promotion to Captain, but had been unsuccessful. Consequently, the individual respondent felt the applicant was doing a disservice to actual Captains by wearing the cap. The individual respondent was also aware of the applicant’s earlier complaint regarding a toque and therefore chose not to ask him to remove the cap.
32The individual respondent denied that he ever used the terms “smells stink” or “fish shit” in reference to anyone’s food. He had, on one occasion, expressed interest in food prepared by the applicant. He testified that on this occasion he had been in the office and asked “what stinks”. The applicant replied that it was a fish dish from his home country and the individual respondent asked him about the dish and how it was prepared. He also inquired about the plantain that the applicant was preparing.
33In cross examination, the individual respondent acknowledged that the applicant was not a substandard firefighter. He stated that the time required before he would allow a firefighter to drive varies. He was unable to say how long it would have been before he would have allowed the applicant to drive because he never showed any initiative regarding driving and was not prepared to put anyone in the driving position if they do not put in the effort. The individual respondent stated that he had the applicant drive on one occasion, October 9, 2009, because the other members of the regular crew were absent due to illness and he was the only person familiar with the area.
34The individual respondent acknowledged that the applicant drove regularly before he was transferred to station six. He agreed that the light standard was a new piece of equipment. The individual respondent stated that the time to learn how to use the equipment varies depending on the person, but acknowledged that it was not a complex piece of equipment. He did not agree, however, that a firefighter will usually drive once he or she becomes qualified. Rather, who drives is a decision made by each Captain.
35The individual respondent confirmed that when Firefighter Schroder returned to work he was cleared to perform his full duties. Nonetheless, the individual respondent assigned him to drive more often than the other firefighters under his command because he did not want him to re-injure himself. The individual respondent denied that he would have allowed the applicant to drive if he was white.
36The individual respondent reiterated that he did not ask the applicant to remove his cap on September 28, 2009. He also confirmed that he recalled only one incident regarding the applicant’s fish dish and could not remember the date. He stated that he has tried the cuisine from different places, but has not enjoyed everything he has tried.
James Schroder
37James Schroder is a firefighter with the organizational respondent and was working at station six at the time the applicant was transferred there. He testified that he drove more often than the other firefighters in order to accommodate his health issues by limiting heavy lifting. Firefighter Schroder stated that he had worked with the individual respondent for six or seven years and confirmed that the individual respondent did not let everyone drive equally.
38Firefighter Schroder recalled an incident when he used the barbeque while the applicant was preparing a meal in the kitchen. Firefighter Schroder noticed that the applicant’s food had an odour and stated that the individual respondent asked “what smells”. According to Firefighter Schroder, this question was put in an inquisitive, non-derogatory manner.
39In cross examination, Firefighter Schroder admitted that he had been involved in an accident with a City vehicle that he did not report. The accident occurred approximately two years before he transferred to station six. He stated that he was required to perform remedial training after the accident and he resumed driving after he completed the training. Firefighter Schroder stated that the applicant and individual respondent appeared to have a professional relationship.
SUBMISSIONS OF THE APPLICANT
40The applicant noted that he had an accident in a fire vehicle about nine months before he was transferred to station six and, as a result, he was not up to the individual respondent’s standards and not permitted to drive. Firefighter Schroder also had an accident before coming to station six, but was allowed to drive anyway. The applicant submitted that this amounted to discrimination.
41The applicant submitted that he provided specific dates and times regarding the incidents when the individual respondent made unwelcome comments about his food. Despite this, the individual respondent could remember only one incident in which he said something about the applicant’s food. Firefighter Schroder testified that there may have been an occasion when the individual respondent said “something smells”.
42The applicant submitted that the Standard Operating Guidelines regarding uniforms do not prohibit wearing baseball caps indoors and Deputy Chief Bentley’s evidence confirmed that there is no rule against wearing caps with fire department insignia on them. The applicant emphasized that the individual respondent did direct him to remove his baseball cap.
SUBMISSIONS OF THE RESPONDENTS
43The respondents noted that the Application includes three categories of complaints: 1) driving, 2) the applicant’s food and 3) the applicant’s baseball cap. The respondents submitted that the evidence regarding each issue does not establish discrimination in employment.
44Regarding driving, the respondents submitted that the un-contradicted evidence was that driving a fire vehicle, i.e., who is allowed to drive, is a matter of Captains’ discretion. The applicant agreed that it is up to the Captain to decide who may drive. The respondents submitted that the only evidence regarding the exercise of this discretion came from the individual respondent and Firefighter Schroder. This evidence established that newcomers to station six did not necessarily begin driving immediately and the individual respondent did not distribute driving duties evenly. Rather, the individual respondent makes judgements based on his assessment of firefighters skills, experience etc. The individual respondent was aware that the applicant had had an accident, but also made inquiries of officers that worked with the applicant and learned of another driving incident involving the applicant. This information informed his view of the applicant’s skill. In any event, the applicant did not express an interest in driving and showed no interest in the new equipment on the truck at station six. Accordingly, the individual respondent formed a view of the applicant’s suitability to drive and the respondents submitted that nothing has displaced the evidence on which he based his view.
45The respondents submitted that the clear evidence was that Firefighter Schroder drove more than others because of his previous back injury. The respondents submitted that it is not a violation of the Code to prefer Firefighter Schroder regarding driving assignments over other firefighters, notwithstanding the applicant’s suggestion that it was improper. The respondents submitted that Firefighter Schroder’s accident occurred nearly 10 years ago and that the passage of time makes it insignificant and, in any event, the individual respondent had no involvement in this incident. Accordingly, the respondents submitted that there was no evidence from which the Tribunal could infer that the respondents discriminated against the applicant with respect to driving the trucks.
46The respondents submitted that the evidence was also that the applicant drove for the individual respondent on one day, October 9, 2009. The applicant drove on that date because none of the other firefighters at station six that day regularly worked at that station, due to illnesses in the regular compliment. The applicant was therefore the best person to drive that day. The respondents submitted that allowing the applicant to drive in these circumstances was consistent with the exercise of discretion required of Captains.
47The respondents submitted that the case would be different if the applicant had asked about driving or asked to be allowed to drive or if he had taken action to address the individual respondent’s opinion of his driving abilities. The applicant, however, did none of these things.
48The respondents submitted that the applicant’s evidence regarding the baseball cap incident does not establish a link to a prohibited ground of discrimination. According to the respondents, the applicant’s position is that the individual respondent directed him to remove his baseball cap, although there is no rule against wearing baseball caps, and the applicant concluded that the reason was prohibited discrimination.
49The respondents submitted that there are in fact rules about when baseball caps may be worn. The evidence was that they should not be worn indoors, but this requirement is not really enforced and is not seen as a “big deal”. Accordingly, the respondents submitted that the individual applicant’s evidence that he did not ask the applicant to remove his cap is consistent with the organizational respondent’s approach to this issue. Moreover, the individual respondent’s evidence was also that he was aware of the issues that arose when the applicant was required to remove a toque and wanted to avoid such a controversy. What did matter to the individual respondent was that the applicant’s cap had a gold crest on it, which denotes officer rank. The applicant was not an officer and was therefore not entitled to wear this rank insignia. Rank matters in the fire department; therefore, the individual respondent questioned the applicant about his cap. The respondents therefore submitted that the respondents’ evidence on this issue was more coherent than the applicant’s and should be accepted by the Tribunal. The respondents further submitted that there was no evidence linking the individual respondent’s actions to a prohibited ground of discrimination.
50The respondents noted that firefighters cook for themselves; therefore, there will be separate food dishes prepared. Fish sometimes has an odour when it is cooked and the respondents submitted that there is nothing remarkable about someone commenting about this, as the individual respondent acknowledges doing on one occasion. The respondents submitted that Firefighter Schroder’s evidence regarding this incident largely corroborated the individual respondent’s testimony. The respondents submitted that eating fish is not an activity protected by the Code and the applicant continued to bring fish to work in any event. The respondents submitted that it is difficult to connect this incident to a prohibited ground of discrimination and submitted that the Tribunal could accept the applicant’s evidence, but not find that it amounts to a breach of the Code.
51The respondents submitted that the applicant failed to call any corroborating witnesses regarding any of his allegations and his evidence lacked internal logic. On the other hand, the respondents submitted that the individual respondent was candid in admitting that he commented on the applicant’s food, albeit in a non-discriminatory manner. The respondents submitted that the evidence establishes a credible non-discriminatory explanation for the incidents in question.
52In reply, the applicant submitted that the reason the individual respondent did not allow him to drive was his previous accident. Firefighter Schroder also had an accident two years before he transferred to station six, but was not required to wait before he was allowed to drive.
53The applicant submitted that there were no witnesses to the baseball cap incident.
THE INTERVENOR
54The intervenor took no position regarding the merits of the Application. It submitted, however, that the evidence establishes that the assignment of driving duty is a matter of Captains’ discretion and that Captains can and do exercise this discretion differently. Accordingly, the organizational respondent has no mandatory rotation of duties and no policies regarding the assignment of duties. The intervenor submitted that this is a problem and noted that the organizational respondent has policies on a variety of things, e.g., harassment etc. The intervenor submitted that a policy regarding driving would be helpful. Without a policy, firefighters are vulnerable to discriminatory decisions and Captains are vulnerable to allegations of discrimination with no policy to indicate how the various duties should be assigned. Consequently, the intervenor submitted that the Tribunal should comment on the advisability of such a policy, regardless of the outcome of the Application.
55The organizational respondent objected to the intervenor’s submissions. The organizational respondent submitted that the intervenor can bring forward a proposal regarding a driving policy to the organizational respondent in bargaining or otherwise. The organizational respondent submitted that it had no notice of the intervenor’s position regarding the issue of driving and objected to what it characterized as the intervenor’s “ last minute request”.
ANALYSIS AND DECISION
56Section 5 of the Code states as follows:
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, gender identity, gender expression, age, record of offences, marital status, family status or disability.
57In Phipps v. Toronto Police Services Board, 2009 HRTO 877, the Tribunal summarized the principles that apply in cases involving allegations of racial discrimination as follows at paragraph 16:
a) The prohibited ground or grounds of discrimination need not be the sole or the major factor leading to the discriminatory conduct; it is sufficient if they are a factor;
(b) There is no need to establish an intention or motivation to discriminate; the focus of the enquiry is on the effect of the respondent's actions on the complainant;
(c) The prohibited ground or grounds need not be the cause of the respondent's discriminatory conduct; it is sufficient if they are a factor or operative element;
(d) There need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and
(e) Racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices.
Radek v. Henderson Development (Canada) Ltd. (No. 3) (2005), 52 C.H.R.R. D/430, 2005 BCHRT 302 at para. 482; Pritchard v. Ziedler (2007), CHRR Doc. 07-527 (Sask. H.R.T.).
58In this case, as in Phipps and many other cases dealing with allegations of discrimination, there is no direct evidence that race, colour, place of origin, citizenship or place of origin was a factor in the respondents’ actions towards the applicant. Accordingly, whether the applicant was subjected to racism can only be determined based on circumstantial evidence. In Phipps, the Tribunal also set out the principles to be applied in circumstantial evidence cases, at paragraph 17, as follows:
Once a prima facie case of discrimination has been established, the burden shifts to the respondent to provide a rational explanation which is not discriminatory.
It is not sufficient to rebut an inference of discrimination that the respondent is able to suggest just any rational alternative explanation. The respondent must offer an explanation which is credible on all the evidence.
A complainant is not required to establish that the respondent’s actions lead to no other conclusion but that discrimination was the basis for the decision at issue in a given case.
There is no requirement that the respondents' conduct, to be found discriminatory, must be consistent with the allegation of discrimination and inconsistent with any other rational explanation.
The ultimate issue is whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent.
In determining whether the inference of racial discrimination is more probable than the explanations offered by the respondent officer, I also need to be mindful of the nature of racial discrimination as it is understood today and that it will often be the product of learned attitudes and biases and often operates on an unconscious level: Nassiah v. Peel (Regional Municipality) Services Board, 2007 HRTO 14.
59The applicant has the initial evidentiary onus of establishing, on a balance of probabilities, a prima facie case that the respondent discriminated against him because of his race, colour, place of origin, citizenship or ethnic origin. A prima facie case of discrimination “is one which covers the allegations made and which, if believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent…”. See Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at paragraph 28.
60I find that the applicant has not established, on a balance of probabilities, a prima facie case of discrimination regarding his allegation related to wearing a baseball cap indoors or the comments about his food attributed to the individual respondent. Dealing first with the baseball cap incident, the applicant provided no evidence of differential treatment based upon any of the grounds that he alleged. For example, the applicant did not assert that the individual respondent allowed the other firefighters in the station, who were white, to wear baseball caps indoors. In my view, there is no evidence, even assuming the incident occurred as the applicant testified, linking the individual respondent’s actions to a prohibited ground of discrimination.
61The respondents argued that eating fish is not a protected activity under the Code. Food, like language, which is also not a prohibited ground of discrimination, can in my view be inextricably linked to one’s place of origin. The Tribunal has found that in some circumstances language can be a proxy for race, ethnicity and place of origin. See: Code in Espinoza v. Coldmatic Refrigeration of Canada Inc. (1995), 1995 CanLII 18164 (ON HRT), 29 C.H.R.R. D/35 (Ont. Board of Inquiry). In my view, this analysis applies equally to food, and the Code may prohibit discrimination linked to food, when evidence establishes that an aspect of one’s food is a proxy for a prohibited ground of discrimination.
62Therefore, the onus is on the applicant to present evidence that could lead to a finding that his food was as a proxy for his race, colour, place of origin, citizenship and ethnic origin. I find the applicant provided no such evidence. Rather, the applicant’s evidence was that on several occasions the individual respondent made rude comments indicating that he did not like the smell of the fish the applicant was preparing and directed the applicant not to bring fish to the station. Even if I accept the applicant’s testimony as true, there is no evidence that the individual respondent treated the applicant’s food as a proxy for his race, colour, place of origin, citizenship or ethnic origin, e.g., that his comments reflected a negative view of the applicant’s race, colour, place of origin or ethnic origin. There is no evidence that the applicant said anything that could connect his comments about the applicant’s food to its ethnic or cultural origins. As noted above, the Code does not regulate personal taste; neither does it regulate manners.
63There is no dispute that the applicant drove regularly in 2009, before he was transferred to station six in September 2009. He was assigned to station six between September 21, 2009 and December 28, 2009 and drove on only one occasion in that time, on a day when the other firefighters regularly assigned to station six were absent due to illness. The other firefighters working at station six, who are white, were all assigned driving duties, although these assignments were not distributed evenly. There is no indication that the individual respondent, who was responsible for work assignments, explained to the applicant why he was not driving or indicated what it would take to be allowed to drive. In these circumstances, I am satisfied that the applicant has established a prima facie case of discrimination that requires the respondents to provide a non-discriminatory reason for their actions. I find, however, that the respondents have provided a credible non-discriminatory explanation for not assigning driving duties to the applicant.
64The applicant pointed to the individual respondent’s differential treatment of himself and Firefighter Schroder as evidence of discrimination. According to the applicant, both had accidents while driving VFRS vehicles prior to coming to station six, where the individual respondent was Captain, and were required to perform remedial training as a result. The individual respondent assigned Firefighter Schroder to driving duty immediately upon arriving at station six, whereas he did not assign the applicant to drive because of his previous accident. The evidence regarding Firefighter Schroder’s accident was adduced during the applicant’s cross examination of Firefighter Schroder, who testified after the individual respondent. The applicant did not raise the issue in his cross examination of the individual respondent. Consequently, there is no evidence before me regarding the individual respondent’s knowledge of Firefighter Schroder’s accident or why he assigned Firefighter Schroder to drive immediately upon coming to work at station six. In these circumstances, I cannot find that allowing Firefighter Schroder to drive immediately upon his arrival at station six amounts to differential treatment contrary to the Code.
65There was no dispute that the assignment of firefighters’ duties is a matter of Captains’ discretion, based on each Captain’s assessment of his or her subordinates skills, experience, etc. The organizational respondent imposes no criteria or guidelines regarding the exercise of that discretion or any obligation to communicate to firefighters regarding the reasons for assigning (or not assigning) particular duties. The result is that the assignment of duties is not consistent (the applicant drove at station one, but not at station six) and may not be transparent (as it was not in this case), depending on the individual Captain’s management style. Of course, leaving such decisions entirely to the discretion of Fire Captains is not prohibited under the Code, but it may make it difficult, as it was in this case, to determine whether the exercise of that discretion is tainted by discriminatory factors.
66The respondents’ evidence was that the individual respondent did not necessarily assign driving duties evenly and he does not necessarily assign firefighters to drive when they begin working at station six. Rather, he assigns duties based on his assessment of firefighters’ skills, experience and confidence. He also considers the need to accommodate, which explains why Firefighter Schroder was assigned a disproportionate share of the driving duties. The individual respondent stated that he did not assign the applicant to drive because his knowledge of the applicant’s driving history led him to conclude that the applicant was not a safe driver. He did not revisit this assessment because the applicant showed no interest in driving or learning how to use the new equipment on the vehicle at station six in the relatively short time the applicant was assigned to station six. I found the individual respondent to be a credible witness. He testified in a straightforward and consistent manner and his evidence was not disturbed in cross examination. On the evidence before me, I find there is no basis not to accept the respondents’ explanation or to find that discrimination on a prohibited ground was a factor in the assignment of the applicant’s duties.
67The Application is dismissed. Accordingly, the Tribunal has no jurisdiction to comment further on the organizational respondent’s policies.
68Dated at Toronto, this 11th day of October, 2012.
“Signed by”
Douglas Sanderson
Vice-chair