Vetrano v. Bogle, 2013 HRTO 1687

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tony Vetrano

Applicant

-and-

Paul Bogle

Respondent

DECISION

Adjudicator: Alison Renton

Date: October 7, 2013

Citation: 2013 HRTO 1687

Indexed as: Vetrano v. Bogle

APPEARANCES

Tony Vetrano, Applicant

Noel Hennessy, Representative

Paul Bogle, Respondent

Mary Selvanathan, Representative

1This is an Application filed on September 24, 2012, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of colour and reprisal.

2A Case Assessment Direction dated November 13, 2012 was issued by the Tribunal. In it, the Tribunal determined on its own initiative that a summary hearing be held to determine whether or not the Application should be dismissed, in whole or in part, on the basis that there was no reasonable prospect that it will succeed. The Tribunal stated that the respondent was not required to file a Response at that time; however, the respondent did file a Response.

3A Notice of Summary Hearing was issued by the Tribunal, dated January 8, 2013, scheduling the summary hearing for March 18, 2013. The applicant’s representative was unavailable this date and the summary hearing was rescheduled for July 10, 2013. The applicant’s representative was also unavailable on that date and the summary hearing was again rescheduled for August 16, 2013, the date upon which it was held. Both parties participated. The respondent filed additional material before the summary hearing.

4During the summary hearing, the applicant’s representative sought to rely upon the arbitration decision of Communications, Energy and Paperworeks [sic] Union of Canada, Local 410 v. Nestle Purina Petcare, 2012 CanLII 65216 (ON LA) (“the Purina decision”). The Tribunal permitted the applicant’s representative to file the Purina decision with the Tribunal subsequent to, but on the same day as, the summary hearing, copying the respondent’s representative. The Tribunal granted the respondent until August 30, 2013 to file submissions about the Purina decision and granted the applicant until September 6, 2013 to file responding submissions about the applicant’s submissions. The parties have filed their respective submissions.

5The Application, Response, materials filed by the respondent, the Purina decision, and the parties’ submissions filed about the Purina decision have all been carefully considered by the Tribunal in addition to the parties’ oral submissions at the hearing.

6For the reasons set out below, the Application is dismissed.

the parties

7The applicant and the respondent both work for Peel and Truck Trailer (“Peel”), which has not been named as a respondent. The applicant is the respondent’s supervisor. The respondent apparently experienced a workplace injury in 2008. Since then, the applicant, the respondent, and Peel have had a number of discussions, and participated in a number of meetings, with representation and with representatives from the Workplace Safety and Insurance Board (“WSIB”), about the respondent receiving modified work in the workplace.

8Subsequent to the Application being filed, the respondent filed his own application with the Tribunal in which Peel is named as respondent (2013-13466-I). That Application is not before me and has not been considered, apart from the fact that it was filed subsequent to the filing of this Application.

the applicant’s position

9The applicant submits that he was subjected to harassment and discrimination by the respondent on a frequent basis such that he, the applicant, experienced anxiety and suffered from considerable stress. He walked on “pins and needles”, he submits.

10The basis for the respondent’s harassment and discrimination, the applicant submits, is the respondent’s lack of cooperation in the respondent’s accommodation process in the workplace at Peel. The applicant asserts that the respondent works outside of his medical restrictions, fails to cooperate in the accommodation process, and consistently threatens to file actions, through the courts and/or before the Tribunal, against the applicant and Peel. This, the applicant submits, amounts to reprisal by the respondent against the applicant.

11Furthermore, the applicant alleges that the respondent has harassed and discriminated against him on the basis of colour. The applicant, who self-identifies as a white man from a Mediterranean background, submits that the respondent, whom he identifies as black, said to the applicant, in the presence of others, that he, the respondent, was a different colour from the applicant, which made the applicant feel like he had been discriminated against. The applicant did not identify the date on which this comment was allegedly made.

12The applicant confirmed, in response to a question from the Tribunal, that the Application only pertains to him and has not been filed on behalf of Peel and that the applicant, as a supervisor, is a member of management.

the respondent’s position

13The respondent submits that the Application should be dismissed pursuant to section 45.1 of the Code in light of various proceedings and meetings between the applicant, the respondent, Peel, representatives of the WSIB, and the parties’ legal representatives.

14Alternatively, the respondent submits that the Application does not contain allegations which would establish a violation of the Code on the grounds of colour and/or reprisal. The respondent submits that the Application should be dismissed as having no reasonable prospect of success.

15The Purina decision, the respondent submits, should not be considered by the Tribunal as it is not a Tribunal decision.

law and analysis

16The purpose of the summary hearing, as set out in the CAD, was to determine whether or not the Application should be dismissed, in whole or in part, as having no reasonable prospect of success. Section 45.1 of the Code issue was not identified by the Tribunal, in the CAD, as an issue to be determined as the summary hearing. According, I will not consider the respondent’s section 45.1 request.

17Rule 19A of the Tribunal’s Rules of Procedure provides for a summary hearing, following which an application may be dismissed, in whole or in part, if the Tribunal finds that there is no reasonable prospect that the application or part of the application will succeed.

18The approach to deciding whether an application has a reasonable prospect of success following a summary hearing was explained as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 to 10:

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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, then there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

19During the summary hearing, the parties provided numerous details about the discussions and difficulties they were respectively experiencing about addressing the respondent’s restrictions in the workplace. I reminded the parties several times during their submissions to focus on issue at hand, the reasonable prospect of success issue, rather than providing details and essentially evidence about the workplace difficulties experienced by the applicant, Peel, and the respondent.

20This Application is rather unusual as it has been filed by a member of management against someone who reports to him and the vast majority of applications pertaining to the social ground of employment are about employees, or former employees, against a co-worker, member of management and/or the employer. However, this uniqueness does not result in the Application being dismissed on this basis. In Frolov v. Mosregion Investment Corporation, 2010 HRTO 1789, the applicant filed two applications, one against his employer and the other against his subordinate. In the application against the subordinate, the applicant alleged that the subordinate had sexually harassed and sexually solicited him. The application against the subordinate was settled, see para. 6, and the first application continued against the employer.

21I do not find the Purina decision relied upon by the applicant to be relevant to the issue before me, but not because it is an arbitration decision rather than a Tribunal decision. As the Tribunal has noted in numerous decisions, in the context of deferring applications filed with the Tribunal pending the conclusion of the grievance arbitration process, the Supreme Court of Canada in Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, has affirmed that grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement. See, for example, Haddrall v. Toronto Marriott Bloor Yorkville, 2013 HRTO 1116 at para. 8.

22Instead, the arbitrator in the Purina decision was asked to determine whether or not the employer, Purina, had accommodated a worker with a disability to the point of undue hardship before it terminated the worker’s employment. This is different from the case before me, which is about a member of management alleging that a subordinate has harassed and/or discriminated against the member of management on the basis of colour and reprisal.

23The Application is dismissed as having no reasonable prospect of success because of the unspecified nature of the allegation on the basis of colour and because the allegations, as alleged, do not meet the definition of “reprisal” within the meaning of the Code.

24The applicant’s allegation pertaining to the Code ground “colour” is extremely vague. At its highest, the applicant’s allegation is that the respondent identified, on some unspecified date, that he and the applicant have different skin colours and that it was said in the presence of others. This distinction, by itself, and on its face, does not establish that the applicant was disadvantaged in any way, a requirement that the applicant needs to prove in having his Application upheld. See, for example, A.B. v. Toronto Police Services Board, 2013 HRTO 447 at paras. 59 to 61.

25Further, I find that the applicant has not been able to establish how the comment could constitute harassment under the Code. In order to constitute harassment under the Code, the evidentiary burden on the applicant is to demonstrate that the impugned behaviour was: (i) a course of vexatious conduct or comment; (ii) by an employer or an employer’s agent; (iii) unwelcome or ought reasonably to be known to be unwelcome; and (iv) based on a protected ground under the Code. See Ghosh v. Domglas Inc. (No. 2), (1992) 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216 (Ont. Bd. Inq.). The applicant has not established how the comment was vexatious, unwelcome or how it would reasonably be known to be unwelcome.

26Furthermore, the allegations do not meet the definition of “reprisal” as set out in section 8 of the Code. In section 8, “reprisal” is defined as:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

27In Noble v. York University, 2010 HRTO 878 at para. 31, the Tribunal explained what reprisal under the Code means. It stated:

In order to prove reprisal, a complainant (now an applicant) must establish that the respondent engaged in an action, or threat, which was intended as a retaliation for the claiming or enforcement of a right under the Code. Unlike an allegation of discrimination, where intention is not a necessary element to prove a violation, where reprisal is alleged, the complainant must establish that the action was taken with an intent to punish or retaliate. See: Jones, supra; Jones v. Amway of Canada Ltd., 2001 CanLII 26217 (ON H.R.T.); Ketola v. Value Propane Ltd., 2002 CanLII 46510 (ON H.R.T.); Moffatt v. Kinark Child & Family Services (1998), 1998 CanLII 29857 (ON HRT), 35 C.H.R.R. D/205 (Ont. Bd. Inq.).

28There is no suggestion that the applicant attempted to claim and enforce his rights under the Code and was reprised in some way for doing so. While the applicant states on his Application that he raised his concerns with another member of management, the employer is not named as a respondent.

29The applicant submitted that as a member of management he refused to infringe a right of another person, the employer or himself, under the Code in his attempts to accommodate the respondent’s medical restrictions under the Code, to which the respondent refused and/or failed to cooperate. This does not, in my opinion and based upon the circumstances of this case involving the applicant, the respondent’s supervisor, meet with the definition of “reprisal”. The applicant is not suggesting that the employer required him to violate the respondent’s rights under the Code and threatened the applicant with negative consequences if he did not. Instead, the applicant seems to be alleging that he was complying with the employer’s obligation to accommodate the respondent in the workplace and thus is providing a defence or explanation against the respondent’s possible assertions that Peel and the applicant failed to accommodate the respondent’s disability in the workplace.

30Accordingly, in light of the above, I find that the Application has no reasonable prospect of success and it is dismissed.