Marlon Brown v. Toronto Transit Commission, 2012 HRTO 386

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marlon Brown

Applicant

-and-

Toronto Transit Commission

Respondent

DECISION

Adjudicator: Eric Whist

Date: February 23, 2012

Citation: 2012 HRTO 386

Indexed as: Brown v. Toronto Transit Commission

APPEARANCES

Marlon Brown, Applicant ) Self-represented

Toronto Transit Commission, ) Steve Lavender,

Respondent ) Counsel

1This Application was filed under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The Application alleges discrimination in employment on the basis of race.

2On November 9, 2011, the Tribunal issued a Case Assessment Direction (“CAD”) directing that a summary hearing be held by teleconference pursuant to Rule 19A of its Rules of Procedure. The issue to be determined in a summary hearing is whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed. The CAD further states that the Tribunal does not have the general power to deal with allegations of unfairness and that in order to succeed with his Application the applicant must be able to prove, on a balance of probabilities, a link between the respondent’s alleged actions and a prohibited ground under the Code. The summary hearing was held on February 16, 2012.

BACKGROUND

3The applicant self identifies as a Black male, originally from Jamaica. The applicant was hired by the respondent on June 20, 2010 and was a probationary employee with the respondent during the period of time relevant to the Application. The applicant’s job was to clean subway cars. He was employed on the “sunset shift”, from 8:30 p.m. to 5:00 a.m.

4On April 2, 2011 the applicant left the respondent’s premises about midnight to go for lunch. Employees are required to notify forepersons or supervisors before leaving the respondent’s premises. The applicant alleges that he made repeated efforts to notify his supervisor that he was going for lunch but was unsuccessful.

5The applicant alleges that while on lunch he was contacted by a family member whose car had broken down who also needed money and a ride to his home. The applicant states he drove this family member home and while returning to work was stopped by a police officer who, shortly before 1:00 a.m., issued the applicant a ticket for running an amber light.

6The police officer also determined, during his questioning of the applicant, that the applicant’s car had a smell of marijuana. The applicant explained to the police officer that this was because the family member he had been driving home had been smoking marijuana in the car.

7The police officer decided to call the respondent, the applicant’s employer, and shortly thereafter, a “route supervisor” came to the scene. The respondent contends that the applicant communicated to the police officer and to the route supervisor that he was going to work rather than that he was, in fact, on duty and returning to work. It appears that the police officer recommended that the applicant book off sick rather than go to work and that after a further discussion with the route supervisor, the applicant called his workplace to indicate that he would not be returning to work that night.

8The next day the applicant was relieved of duty and suspended for two weeks. The applicant appealed this relief of duty. The appeal was denied at Step 1 of the applicable grievance procedure and the respondent terminated the applicant’s employment. The respondent’s stated reasons for terminating the applicant’s employment were that the applicant was absent from work without leave, that he failed to inform his foreperson about leaving the respondent’s premises, that he misled the police and respondent personnel about the fact that he was actually on duty rather than going to work, that he jeopardized his fitness for work by inhaling second hand marijuana smoke, that his absence from work meant that he missed a required job assignment, and that he had two previous incidents of failing to complete assigned duties. The applicant appealed the decision to terminate his employment to Step 2 of the grievance procedure where it was denied by the respondent. The applicant, as a probationary employee, had no rights to pursue his grievance further or to proceed to arbitration. The applicant filed his Application with the Tribunal on June 24, 2011.

THE SUMMARY HEARING

9At the hearing the applicant was directed to indicate what he believed was the link between the respondent’s actions and a possible violation of the applicant’s rights under the Code. The applicant’s subsequent submissions focussed on why the applicant felt the respondent’s decision to terminate his employment was unfair and how the respondent did not properly consider his objections to its decision. These submissions did not address how the respondent’s actions might have violated the Code.

10The applicant submitted that he repeatedly did try to inform his supervisor that he was leaving the respondent’s premises on April 2, 2011 in order to go for lunch but his supervisor was unavailable. He submitted that his approved lunch break was not 30 minutes but rather 60 minutes given that the practice in his workplace was to combine the allocated 30 minute lunch break with the two allocated 15 minute rest breaks into one extended hour for lunch. He submitted that he would have been back to work in the appropriate time if he had not been stopped by the police and that, even when stopped by the police, he would have been able to return to his workplace and not have missed the specific job assignment the respondent said he would have.

11The applicant submitted that the route supervisor who was called by the police officer on April 2, 2011 did not act appropriately in that he first met with the police officer rather than the applicant and was generally not supportive of the applicant and his situation. The applicant submitted that the verbal warning that had been previously issued to him for having failed to complete his work was not warranted. He submitted that he had never shown up “unfit” for work because of using illegal substances and stated that he had offered to provide a urine test to the respondent when he understood that he was at risk of losing his job to indicate that he was not abusing any illegal substances. He stated that the respondent was unwilling to consider this offer. He indicated that he felt he was treated differently from permanent employees who would not have been subject to the same disciplinary measures he was, as a probationary employee.

12The applicant did submit that he felt he had been treated unequally. He did make one explicit reference to race, the Code ground sighted in his Application. As I understood the applicant, he was of the view that the route supervisor who appeared in response to the police officer’s call, concluded, based on the fact that the applicant’s car had a smell of marijuana, and the fact that the applicant was a young Black male that the applicant had been using marijuana and should not report for duty. The applicant was of the view that the route supervisor had acted on a stereotype of young Black males.

ANALYSIS AND DECISION

13The issue that Rule 19A directs the Tribunal to determine is whether the Application has no reasonable prospect of success. In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal provided the following guidance:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

14I find that the applicant does not have a reasonable prospect of proving that his rights under the Code have been violated. He has not shown that there is a link between the respondents’ actions that led to the termination of his employment and the applicant’s race that would indicate that his Application has a reasonable prospect of success.

15At the hearing the applicant repeatedly identified actions taken by the respondent that he felt were inappropriate, harsh and ultimately unfair. However, the applicant simply did not link these actions to him being Black; he did not argue that these actions were taken, in some measure because of his race or that he was treated differently than others because of his race. The applicant did not point to any evidence or expected evidence or provide particulars that linked his alleged unfair treatment to his race.

16As noted, the applicant’s one explicit reference to race was that he was of the view that the route supervisor may have made some stereotypic assumptions about the applicant and drug use because he is Black and that this contributed to the decision that the applicant should go home rather than go to work. However, the applicant readily acknowledged that his car had a smell of marijuana and that marijuana had been consumed while the applicant was in the car. He indicated that the police officer was of the view he should not go to work. I do not see, under these circumstances, how the applicant would have a reasonable prospect of establishing that the route supervisor’s actions and role in the decision that he not go to work was based on racial discrimination under the Code. Again, I note the Tribunal does not have the power to deal with all claims of unfairness or all disputes between parties, but only matters that engage the Code.

17For these reasons the Application is dismissed.