HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ashish Saha
Applicant
-and-
Garda Inc. and Jean-Sébastien Racine
Respondents
DECISION
Adjudicator: Jo-Anne Pickel
Indexed as: Saha v. Garda Inc.
APPEARANCES
Ashish Saha, Applicant
Amer Mushtaq, Counsel
Garda Inc. and Jean-Sébastien Racine, Respondents
Jason Green, Counsel
Teamsters Local 419, Intervenor
Marisa Pollock, Counsel
Introduction
1By Application filed March 4, 2011, the applicant alleged that he was discriminated against because of race and ethnic origin, and reprised against contrary to the Human Rights Code, R.S.O. c. H. 19, as amended (the “Code”). The applicant identifies as being of South-Asian descent. At the hearing, he raised four incidents of alleged discrimination: when the corporate respondent (“Garda”) terminated his position in 2008; when the respondents did not grant him a supervisory position in 2009; when the individual respondent allegedly singled him out for unfair criticism in December 2010; and with respect to the respondents’ handling of an incident in January 2011. In addition to these allegations, the applicant claimed the respondents also reprised against him after he made claims of discrimination in January 2011.
2The respondents denied that they violated the Code. In particular, they submitted that the two first incidents set out above are untimely and that, in any event, they do not amount to a violation of the Code. They denied that the personal respondent singled the applicant out for unfair treatment in December 2010. They submitted that, while the personal respondent may have raised his voice in a meeting with the applicant in January 2011, he apologized to the applicant for the incident. The respondents argued that there was no connection between the personal respondent’s actions and the applicant’s race, ethnic origin or his enforcement of his rights under the Code. They also argued that race and/or ethnic origin were not a factor in Garda’s handling of the January 2011 incident.
3The hearing of the Application took place over two hearing days: May 23 and September 17, 2013.
4For the reasons set out below, the Application is dismissed.
TIMELINESS OF ALLEGATIONS
5The Application was filed on March 4, 2011. The applicant’s Application is divided into three sections: “Saha’s employment background”, “Garda’s work environment” and “Discrimination against Saha”. In the Application, the applicant raised two incidents of discrimination and/or reprisal:
a. That the personal respondent discriminated against him by singling him out for unfair criticism in December 2010 when he allegedly told him to stop talking and get his truck on the road; and
b. That the respondents discriminated and reprised against him by unfairly accusing him of wrongdoing in relation to an incident that occurred in January 2011.
6At the hearing, the applicant advanced two additional allegations of discrimination relating to incidents in 2008 and 2009 that he included under the section of his Application titled “Saha’s employment background”:
c. That Garda eliminated his position as Mobile Operations Manager for discriminatory reasons in or around August 2008;
d. That the respondents did not promote him to a supervisory position for discriminatory reasons in 2009;
7During the hearing, the applicant’s counsel also made claims about the underrepresentation of members of racialized groups amongst Garda’s supervisory and managerial staff. In his Application, these claims were included in the section titled “Garda’s work environment”. I address these claims further below.
8I find that the allegations relating to incidents taking place in 2008 and 2009 are untimely. In the Application, the applicant appeared to raise these events as contextual information relating to his employment background. The applicant did not make any submissions to support the timeliness of these allegations at the hearing.
9The allegations from 2008 and 2009 clearly fall outside the one year time frame contained in s. 34 of the Code. In my view, these incidents do not constitute a series of incidents with the timely incidents from 2010 and 2011. The Tribunal has frequently held that, in order to constitute a series of incidents within the meaning of s. 34, incidents must be thematically related and occur in close temporal order or succession. Lawrence v. Chrysler Canada, 2012 HRTO 1087. The Tribunal has determined that lengthy gaps in time between incidents in an alleged “series” will interrupt the series.
10In my view, the incidents from 2008 and 2009 are not thematically related to the timely incidents from 2010 and 2011. The timely incidents are allegations that the respondents singled out the applicant and made unfair assumptions about him based on his race and/or ethnic origin. The allegations from 2010 and 2011 are primarily centered on alleged actions by the personal respondent. Meanwhile, the 2008 incident concerns the elimination of the applicant’s managerial position and the 2009 incident concerns a failure to select him for a promotion to a supervisory position. In my view, these are very different issues with no obvious thematic connection to the timely issues in this case. These issues also involve different individuals than the timely allegations from 2010 and 2011. Finally, I find that the significant period of time between the 2009 and December 2010 incidents also serves to break the series.
11For these reasons, I find that the allegations relating to the incidents from 2008 and 2009 are untimely and are not issues for which the respondents can be liable. In this decision, I treat any evidence I heard relating to these two incidents as contextual or background evidence for my consideration of the timely allegations set out in paragraph 5 above.
Credibility Assessments
12As with many applications before the Tribunal, the outcome of this Application turns primarily on the relative credibility of the applicant and the respondent’s witnesses, especially the personal respondent. At times, the parties provided divergent evidence relating to the incidents contained in the Application and the composition of Garda’s workforce. Where it was necessary to resolve a conflict in the evidence in order to arrive at my determinations, I have indicated my reasons for doing so below.
13In assessing credibility and reliability in this case, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354:
(…) Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility….
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions…. Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.
14I have also been mindful of the distinction between veracity and accuracy discussed by the Ontario Court of Appeal in R. v. Morrissey, 1995 CanLII 3498 (ON CA), (1995), 97 CCC (3d) 193, at p. 205:
Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is, his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness' veracity, one speaks of the witness' credibility. When one is concerned with the accuracy of a witness' testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.
APPLICANT’S EMPLOYMENT WITH garda
15In 2003, the applicant became employed as a guard and later as Field Supervisor by Initial Security, which was subsequently acquired by Garda. Approximately 10 supervisors and approximately 2000 guards reported to him when he was a Field Supervisor. In 2006, the applicant was promoted to the position of Mobile Operations Manager in Garda’s security division. In this position, he was in charge of all guards for four companies that had been acquired by Garda that same year. Approximately 30 managers and 7000-8000 guards reported to him.
16In August 2008, the applicant was laid off during a corporate downsizing. At the time, the applicant told representatives of Garda that it was important to him that he maintained his employment since he had applied for permanent resident status and his application was still being processed. Garda offered him a part-time position as a guard in Garda’s armoured division approximately a week later. The applicant accepted the position even though it was a lower level position than the one he had previously occupied. The applicant continued to work part-time as an armoured guard until August 2010, and then full-time until in or around January 2011. At the time of the hearing, he continued to work part-time as an armoured guard on week-ends.
17In 2009, the applicant applied for a supervisory position in Garda’s armoured division. He submitted his application to the personal respondent. According to the applicant, the personal respondent said he would get back to him. The personal respondent never did get back to the applicant. The applicant also never followed-up with the personal respondent about the position. Ultimately, Garda did not offer the applicant the position.
18The applicant and the personal respondent had two very different recollections of the supervisors who were hired by Garda since that time. The applicant did not testify about the composition of the staff hired after 2009 in his examination in chief. However, during his re-examination, he testified that Garda has hired approximately five supervisors in the armoured division since 2009. He testified that most of these new supervisors were previously armoured guards but at least one was not an employee of Garda before being hired as a supervisor. The applicant claimed that all of these five supervisors are white.
19The personal respondent testified that there may have been one supervisor hired in 2009 but he did not remember who it was. He testified that he was not directly involved in any hiring decisions in 2010. However, he testified that at least four new supervisors from racialized groups were hired in 2010: John Adebayo, who he believes is of African-Canadian descent as well as Romer Gallardo, Devinder Virdi and Prajbot Singh who he believes are of South Asian descent.
20On balance, I accept the personal respondent’s recollection since it was more detailed than the recollection provided by the applicant in re-examination. Moreover, the personal respondent’s recollection was supported by the actual names of persons who were hired and this recollection was not questioned in cross-examination.
21Although I accept the personal respondent’s recollection of hiring in the 2009/2010 time period, I am not persuaded that there is any link between this evidence and the timely incidents of discrimination raised in the Application. The incidents raised in the Application were specific incidents of unfair targeting for adverse treatment that primarily involved interactions between the applicant and the personal respondent.
22Overall, the evidence I heard on the representation of racialized groups within Garda’s managerial complement was inconclusive. All witnesses in the case, including the applicant and the personal respondent, testified as to their impressions of the representation of members of racialized groups among supervisors and managers at Garda. However, this testimony provided no reliable figures or data. Rosie Tobia, Garda’s Human Resources Employee Services Director, did testify as to the representation of members of racialized groups at Garda. Tables prepared by her department were entered into evidence. I also entered into evidence an Employment Equity Status Report of Garda’s workforce for 2010 prepared by the Canadian Human Rights Commission. However, none of this evidence provided a reliable picture of the representation of racialized groups within Garda’s managerial complement during the time period covered by this Application.
23In any event, I am not persuaded that such systemic evidence is relevant to the discrimination issues raised in this case. There is no doubt that human rights cases should not be adjudicated in a vacuum. Contextual evidence is often important to fully understanding claims of discrimination under the Code. However, as noted above, the 2010 and 2011 incidents are discrete incidents of alleged individual discrimination against the applicant. In the circumstances of this case, I am not persuaded that the representation of racialized groups within Garda’s managerial ranks is relevant to my determination of whether race was a factor during the 2010 and 2011 incidents raised in the Application.
APPLICANT’S ALLEGATIONS
December 2010 Incident
24In December 2010, an incident occurred between the applicant and the personal respondent. The applicant and personal respondent provided substantially similar testimony as to the chain of events during December 2010. However, each of them had a very different interpretation of the event in question.
25According to the applicant, he was standing on one side of his truck getting ready for his shift and his work partner was standing on the other side. There were approximately 8 or 9 other guards who were also preparing for their shift. The applicant testified that the personal respondent emerged from the supervisor’s office and started yelling at him, asking him why he was chatting with other people. According to the applicant, the personal respondent called him by name before he could even see him because he was on the other side of his truck.
26The personal respondent testified that the larger context of the interaction was the following: armed guards work on tight timelines because they have to complete an average of 20 drops to different financial institutions over the course of their shift. As such, the timing of departure is key to ensuring that all the drops can be completed during each team’s shift. According to the personal respondent, he typically has about 28 crews leaving at the same time and it is important to ensure that all crews are ready to leave within 20 minutes of the beginning of the shift. The personal respondent testified that it was his practice to use what he called a “crowd effect” which involved him going into the garage to motivate and push crews to get ready to leave on time. He said he would frequently go out into the garage and say things like “let’s go guys” “let’s get moving”.
27The personal respondent said that he remembered the shift referred to by the applicant in December 2010 because of the applicant’s facial expression on that day. According to the personal respondent, he came out from his office and did his usual crowding effect. He stated that the applicant’s crew was one of the last to leave. He testified that, as he continued to walk toward the applicant’s truck, he saw the applicant. The personal respondent could not remember exactly what he told the applicant but testified that it was along the lines of “let’s go, stop talking, let’s keep moving”.
28The only significant difference between the testimonies of the applicant and personal respondent with respect to how the incident played out related to whether the personal respondent could actually see the applicant when he told him to stop chatting and get his truck on the road. The applicant testified that the personal respondent could not see him when he accused him of chatting. The personal respondent meanwhile testified that he did see the applicant as he continued to walk toward his truck. I find that the personal respondent’s evidence on this point is more in harmony with the preponderance of possibilities. I accept that the personal respondent did see the applicant at some point as he walked out of his office. Otherwise, the respondent would not have known the applicant was there and would not have been able to call him by name.
29Both the applicant and the personal respondent testified that the applicant told the personal respondent that he was not chatting with anyone. Both also testified that the personal respondent then said that he was just joking and that the applicant should relax.
30According to the personal respondent, upon seeing the applicant’s facial expression he backed off because he could see that the applicant was not having a good day. The applicant testified that he felt singled out by the personal respondent for no reason. In cross-examination, the applicant acknowledged that it was possible that the personal respondent was simply mistaken when he thought the applicant had been chatting, but the applicant said he was hurt by the incident. The applicant claimed he never had a joking relationship with the personal respondent and that, prior to this incident, the most he had said to the personal respondent was “hi” “hello” and “good morning”. The applicant stated in cross-examination that, prior to filing his Application, he only complained about the incident to his work partner. He did not raise the issue with his union, the personal respondent or anyone else from Garda. The personal respondent testified that he heard nothing further about the incident until he received a copy of the applicant’s Application.
January 2011 Incident and Follow up
January 10, 2011 Meeting
31On January 10, 2011, the personal respondent called the applicant and his work partner into his office. Andrew Ackerman, the applicant’s union steward from the Intervenor, Teamsters Local 419 also attended the meeting. According to the applicant, another supervisor was also working in the office at the time.
32The personal respondent told the applicant and his work partner that he had received a complaint from a relations officer for a bank that was a client of Garda’s. The client complained that someone had urinated on the floor in the bathroom at a certain bank branch four days earlier. The applicant and his partner had serviced the bank branch in question. The personal respondent asked the applicant and his partner whether they were responsible for the washroom incident. The applicant and his partner both denied responsibility.
33The applicant claimed that the personal respondent accused him of lying. He testified that the personal respondent then said “I will corner you and it will be my pleasure” and “you’ve known me a long time but you don’t know me”. The personal respondent then said the meeting was over. According to the applicant, he felt threatened by the personal respondent. He testified that he even felt his life was in danger.
34The personal respondent testified that the bank’s relations officer told him that the logs from the bank’s alarm company showed that the bank’s janitors attended at the bank before the Garda crew. For this reason, the bank representative was convinced that the Garda crew must have been responsible for the washroom incident. In cross-examination, the personal respondent testified that he accepted his client’s view that the Garda crew was likely responsible since she told him that the bank’s janitors had already serviced the branch before the Garda crew arrived. The personal respondent acknowledged that he did not ask the bank’s representative whether she had any surveillance camera footage from outside the washroom. Based on the information provided by the bank’s representative, the personal respondent felt that there was good reason to believe that the applicant and his partner were responsible for the incident. It is for this reason that he called both the applicant and his partner into his office for the meeting on January 10, 2011.
35The personal respondent testified that he felt the applicant was being arrogant during the meeting by continuing to insist that the personal respondent prove that the applicant was responsible for the incident at the bank. The personal respondent admitted that he lost his temper with the applicant and raised his voice. The personal respondent denied threatening the applicant or saying that he would “corner him”.
36The following morning, Neil Fernandes, Garda’s Branch Manager, e-mailed the personal respondent to ask how the meeting with the applicant had gone the day before. The personal respondent responded by saying that he would have to do some digging and call his client back. He stated that the applicant and his partner were “either not cooperative or it [was] not them” In cross-examination, the personal respondent testified that he never did call his client back as he ended up getting caught up with work.
37Andrew Ackerman, the applicant’s union steward at the relevant time, testified about his recollections of the meeting between the applicant and the individual respondent on January 10, 2011. Mr. Ackerman testified that he recalled the personal respondent saying that the bank representative had said that the Garda guards were likely responsible since the incident happened after the bank’s cleaners had serviced the branch. By his own admission, Mr. Ackerman did not recall very many details from the meeting. He said he recalled the applicant telling the personal respondent that he would have to prove that they were responsible. He also recalled the personal respondent saying “it will be my pleasure”. However, he did not recall the personal respondent saying “I will corner you” or “you’ve known me a long time but you don’t know me”. Although I accept that Mr. Ackerman tried to recall the events of 2010 and 2011 as best he could, I do not attach any weight to his recollections. As he himself conceded, his memory of the meetings was spotty at best. Therefore, I found his testimony to be unreliable due to his inability to accurately recall the events in question in any significant detail.
38I note that the applicant’s work partner did not testify at the hearing. Each side urged that I should draw a negative inference based on the fact that the other side did not call him to testify. I decline to make any adverse inference since either side could have called the applicant’s work partner to testify and did not. For this reason, I cannot draw any inference from the fact that he did not testify in these proceedings.
39Following his meeting with the personal respondent, the applicant left for his shift but texted his union representative to tell him that he was shocked about the conversation he had had with the personal respondent. His union representative told him he should prepare a grievance. The applicant did so and showed the grievance to another supervisor before submitting it. The applicant submitted the grievance to his union representative the next day.
January 11, 2011 Meeting Between Applicant and Personal Respondent
40The next day, the personal respondent called the applicant and his union representative into his office. The personal respondent asked the applicant if he wanted to speak first. At that point, the applicant gave the personal respondent a letter of complaint that he planned to submit to his union, the personal respondent, Neil Fernandes and the Tribunal. The letter alleged that the personal respondent had unfairly threatened the applicant and targeted him because of his race. After the applicant spoke, the personal respondent told the applicant that he had planned to apologize to the applicant for raising his voice the previous day. The applicant refused to accept the personal respondent’s apology and said he would pursue his grievance.
41According to the applicant, the personal respondent then got upset and said he could sue the applicant for showing the grievance to the other supervisor. Meanwhile, the personal respondent testified that he told the applicant that he should follow appropriate recourses such as the grievance procedure to raise his concerns rather than speaking to a supervisor. The personal respondent also testified that he told the applicant that he should be careful not to find himself guilty of defamation.
42Overall, I am prepared to accept the applicant’s testimony of what was said at the January 10 and 11, 2011 meetings. His recollection was detailed as to precisely what was said and by whom. However, as explained below, I do not accept his conclusion that the personal respondent infringed his rights under the Code in these meetings or during the events that followed.
Verbal Warning
43After the meeting, the personal respondent delivered a written copy of a verbal warning to the applicant regarding the washroom incident. Among other things, the warning formally reminded the applicant to use the client’s washroom as a last resource option while on duty. The warning also reminded the applicant that, if he did use the client’s washrooms, that he should use them adequately by leaving them clean at all times.
44The personal respondent testified that it is Garda’s practice to first issue a verbal warning verbally and then to provide an employee with a written version. The applicant claimed that the personal respondent did not issue the verbal warning verbally. He claimed that the written verbal warning was issued after the January 11, 2011 meeting as a reprisal for the discrimination allegation made in the letter he presented to the personal respondent at the meeting.
January 13, 2011 Meeting Between Neil Fernandes and Applicant
45Garda branch manager Neil Fernandes, met with the applicant, his work partner and their union steward on January 13, 2011. Mr. Fernandes told the applicant that he wanted to thank him for bringing his harassment allegations to his attention. Mr. Fernandes told the applicant that he would appreciate it if the parties could settle the matter without it proceeding further. The applicant asked Mr. Fernandes to put a settlement offer in writing.
46Mr Fernandes followed up with a letter that was given to the applicant when he returned from sick leave January 18, 2011. In the letter, Mr. Fernandes advised the applicant that he took the issues he brought forward very seriously. Mr. Fernandes advised the applicant and his partner that they would report to another supervisor rather than the personal respondent. In addition, Mr. Fernandes advised that he would conduct manager and supervisor training for all of his employees who had direct contact with other employees.
47The personal respondent testified that Mr. Fernandes told him to prepare a letter of apology to the applicant and his work partner for his unprofessional conduct during the January 10, 2011 meeting. A letter from the personal respondent to the applicant’s work partner was entered into evidence. The personal respondent testified that he was fairly sure he also wrote a letter of apology to the applicant. However, the applicant testified that he did not receive the letter of apology from the personal respondent.
48A letter from Mr. Fernandes addressed to the applicant was also entered into evidence. The letter is dated March 8, 2011, four days after the Application was filed. The letter purports to inform the applicant that an investigation has been carried out into his complaints. The letter states that, although the personal respondent’s actions during the January 10, 2011 meeting were “less than professional”, there was no evidence that the personal respondent acted in a harassing or discriminatory manner. The letter goes on to state that, as a result of the applicant’s complaint, Mr. Fernandes had personally conducted training with all management staff regarding workplace violence and harassment. The applicant testified that he never received this letter until it was disclosed as part of these proceedings. The applicant was also never called to take part in any investigation of the January 10, 2011 incident.
49Mr. Fernandes is no longer employed by Garda and did not testify at the hearing. As described below, the respondents requested that the Tribunal re-open the hearing when Mr. Fernandes returned one of their communications a few days after the last hearing day. For the reasons set out below, I denied the request.
50The respondents did call Mr. Anand Maharaj to testify at the hearing about his discussions with Mr. Fernandes about the January 2011 events. Mr. Maharaj was Garda’s Director of Labour Relations in January 2011. Mr. Maharaj recalled discussing the circumstances surrounding the January 2011 washroom incident with Mr. Fernandes but did not remember specifics of the conversation. However, Mr. Maharaj testified that the content of the March 8, 2011 letter was consistent with his recollection of the gist of their discussions. Due to the paucity of his recollections, I do not attach any weight to Mr. Maharaj’s testimony other than to the fact that Mr. Fernandes had made a determination that the personal respondent had not harassed or discriminated against the applicant.
April 2011 Conversation between Mr. Adebayo and Applicant
51In April 2011, the applicant was working with a co-worker when he was approached by a Garda manager, John Adebayo. In front of the co-worker, Mr. Adebayo told the applicant that he was a good man, that he had a good heart, and that he should “let it go”. Mr. Adebayo did not specify what “it” was, but from the context the applicant assumed it was his Application to the Tribunal. The applicant felt it was inappropriate of Mr. Adebayo to raise the issue in front of his co-worker who the applicant had not told about the situation.
52The individual respondent testified that Garda Branch manager Neil Fernandes had called him and Mr. Adebayo into his office to tell them that the applicant and his partner would report to another supervisor. This appears to be how Mr. Adebayo found out about the applicant’s complaints. The personal respondent testified that he did not tell Mr. Adebayo to approach the applicant. After a union steward told him that Mr. Adebayo had approached the applicant, the personal respondent testified that he told Mr. Fernandes what Mr. Adebayo had done.
parties’ submissions
53The applicant’s counsel argued that the applicant had advanced sufficient evidence to make out a prima facie case of discrimination and therefore, he argued, the burden shifted to the respondent to prove there was no discrimination. The applicant’s counsel argued that the applicant’s testimony should be preferred over the testimony of the respondent’s witnesses as he provided more detailed testimony regarding the relevant discussions and meetings as well as the physical context surrounding the alleged incidents.
54When asked what evidence he was relying upon to establish a nexus between the alleged events and the Code, the applicant’s counsel replied that the common theme underlying all incidents alleged in the Application was that the applicant is of a different race than the personal respondent. The applicant also sought to rely on the evidence relating to an alleged underrepresentation of racialized groups within Garda’s managerial ranks to support his position that all of the events complained of were tainted by the applicant’s race.
55The applicant submitted that the verbal warning that the personal respondent gave to the applicant on January 11, 2011 was a reprisal for the applicant’s discrimination allegations. In his Reply, the applicant claimed that Mr. Adebayo’s discussion with him in April 2011 was also a reprisal. However, he did not raise this argument in his submissions at the hearing.
56The respondents argued that the applicant failed to discharge his burden of proving discrimination. They submitted that they provided a rational, credible and non-discriminatory explanation for both the December 2010 and January 2011 incidents. According to the respondents, the personal respondent may have acted unprofessionally by raising his voice to the applicant and his work partner. However, they submitted that he apologized for this conduct. They submitted that the applicant failed to provide any evidence of a nexus to the Code beyond bald assertions. They also submitted that the evidence relating to the composition of Garda’s workforce was a red herring as the Application did not allege systemic discrimination but instead raised incidents of individual discrimination. As for the allegations of reprisal, the respondent submitted that the applicant has failed to show that any of the respondents’ actions were carried out with the intention to reprise against the applicant for filing a human rights claim.
Applicable law
57Under s. 5 of the Code, every person has a right to equal treatment with respect to employment without discrimination because of a number of grounds including race. Section 8 of the Code provides that every person has a right to claim and enforce his or her rights under the Code without reprisal or threat of reprisal for doing so.
58Contrary to the applicant’s submissions, the onus of proving discrimination or reprisal on a balance of probabilities lies with the applicant throughout the discrimination analysis. The evidentiary burden shifts to the respondent to make out a defence if the applicant establishes a prima facie case of discrimination. However, the burden of proving discrimination on a balance of probabilities remains on the applicant throughout. See Peel Law Association v. Pieters, 2013 ONCA 396 at para. 83 and Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at paras. 109 and 119.
59To successfully establish discrimination, an applicant must prove that it is more probable than not that discrimination was a factor in the respondents’ actions. In order to succeed in a claim of reprisal under the Code, an applicant must establish that the respondent did something with the intention of retaliating against him or her for claiming or enforcing his or her rights under the Code: Noble v. York University, 2010 HRTO 878.
60The case law is clear that discrimination need only be one of the factors involved for there to be a violation of the Code. It is also not necessary to establish an intention to discriminate, as discrimination will often stem from unconscious biases or beliefs.
61In this case, there is no direct evidence to support the applicant’s allegations of discrimination, which is not uncommon in cases alleging racial discrimination. As in many cases, the applicant’s case falls to be determined in accordance with well-established principles applicable to circumstantial evidence. These principles were set out by the Tribunal and affirmed by the Divisional Court in Shaw v. Phipps, 2010 ONSC 3884 at para. 77:
(1) 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.
(2) 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.
(3) 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.
(4) There is no requirement that the respondent’s conduct, to be found discriminatory, must be consistent with the allegation of discrimination and inconsistent with any other rational explanation.
(5) The ultimate issue is whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent.
62In determining whether an inference of racial discrimination is more probable than the explanations offered by the respondent in this case, I am mindful that racial bias does not necessarily manifest itself through overt comments or actions. Discerning racial discrimination or harassment can be a highly contextualized exercise. Such discrimination or harassment can manifest itself in subtle ways and can emanate from learned attitudes and unconscious bias in some cases. See, for example, Nassiah v. Peel (Regional Municipality) Services Board, 2007 HRTO 4; Naidu v. Whitby Mental Health Centre, 2011 HRTO 1279. That said, the applicant still must bring forward sufficient direct or indirect evidence to establish racial discrimination on a balance of probabilities.
Findings
December 2010 Incident
63I find that the applicant has failed to prove on a balance of probabilities that the personal respondent discriminated against him by singling him out for unfair criticism in December 2010. In my view, the applicant has failed to show that an inference of discrimination is more probable from the evidence than the rational explanations offered by the respondents.
64I accept that, as the personal respondent carried out his “crowding effect” on that day, he saw the applicant and told him to stop chatting and get his truck on the road. It was not disputed that the applicant told the personal respondent that he was not chatting with anyone. Both the applicant and the personal respondent testified that the personal respondent then said that he was just joking and that the applicant should relax.
65The issue before me is not whether the personal respondent acted unfairly in telling the applicant to stop chatting. As the Tribunal has stated in many decisions, it does not have the power to evaluate general claims of unfairness. See, for example, Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 at para. 27 and Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777 at para. 10.
66The issue before me is whether there is sufficient evidence from which I can draw an inference that the respondent singled out the applicant due to his race or ethnic origin. I find there is not. While the applicant’s counsel pointed to the fact that the applicant and respondent were of a different race, this factor is insufficient on its own to draw an inference of discrimination. As noted above, evidence admitted regarding the representation of racialized groups within Garda’s management ranks was inconclusive. In any event, such underrepresentation, even if established, would not provide a sufficient nexus to the Code absent evidence from which I could reasonably infer that the applicant’s race and/or ethnic origin was a factor in the personal respondent’s comments to the applicant in December 2010. I have been presented with no such evidence. Instead, both the applicant and the personal respondent agreed that the personal respondent immediately apologized to the applicant when he saw his reaction. Although the applicant may have felt unfairly singled out, there is no evidence to support his allegation that the personal respondent singled him out due to his race or ethnicity.
67In light of the above, I cannot find that the applicant’s race was a factor during his December 2010 interaction with the personal respondent.
January 2011 Incident and follow up
68I find that the applicant has failed to prove on a balance of probabilities that the respondents discriminated against him or reprised against him in relation to the incident that occurred in January 2011 or its follow up. In my view, the applicant has failed to show that an inference of discrimination is more probable from the evidence than the rational explanations offered by the respondents.
69I find that that the applicant has failed to establish on a balance of probabilities that the personal respondent’s judgment was tainted by bias due to the applicant’s race or ethnic origin. Although the personal respondent admitted that he may have acted unprofessionally by raising his voice during the January 10, 2011 meeting, this alone does not establish harassment or discrimination under the Code. The evidence simply does not support the claim that the personal respondent’s judgment was tainted by racial bias against the applicant.
70The applicant’s counsel argued that the personal respondent should have questioned his client’s conclusion that the Garda team must have been responsible for the washroom incident. He submitted that the personal respondent rushed to judgment against the applicant and that the applicant’s race was a factor in the personal respondent’s handling of the incident. In my view, the fact that the personal respondent did not question his client’s conclusion is not, in itself, proof of discrimination. I accept that there were good reasons why the personal respondent would accept the bank representative’s assertions rather than challenge one of Garda’s clients. This is especially the case since the bank representative referenced the logs from the bank’s alarm company. The fact that the personal respondent did not rush to judgment with respect to the issue is supported by the e-mail he sent the following day to Neil Fernandes in which he raised the possibility that the applicant and his partner had not been responsible for the incident. Overall, the evidence before me is insufficient to draw an inference that race played any role in the personal respondent’s treatment of the applicant in relation to the January 2011 washroom incident.
71I also find that the applicant has not established on a balance of probabilities that Garda failed to respond appropriately to the applicant’s allegations of racial discrimination. As noted above, Mr. Fernandes met with the applicant, his work partner and his union steward on January 13, 2011. He ensured that the applicant and his partner would report to another supervisor rather than the personal respondent until the matter was resolved. Although Mr. Fernandes’ March 8, 2011 letter to the applicant refers to an investigation. The evidence was unclear as to what steps he took during his investigation. More relevant evidence could have been adduced through cross-examination of Mr. Fernandes if he had testified at the hearing. However, as noted below, the applicant strenuously objected to having Mr. Fernandes testify when the respondent requested to have the hearing re-opened upon having made contact with Mr. Fernandes. Overall, while it is unclear how extensive Mr. Fernandes’ investigation was, I find that the interim steps he did take were adequate in the circumstances.
72Finally, I do not find that there is sufficient evidence that the respondents reprised against the applicant either due to the verbal warning issued to him or Mr. Adebayo’s conversation with the applicant in April 2011. As noted above, in order to make out his claim of reprisal, the applicant must establish that the respondents did something with the intention of retaliating, or threatening to retaliate, against him for claiming and enforcing his rights under the Code. There is no evidence from which I can draw an inference that the personal respondent intended to reprise against the applicant by issuing the verbal warning to the applicant on January 11, 2011.
73The applicant claimed that the fact that the verbal warning was issued after he raised allegations of discrimination was enough to make out a claim of reprisal. In the circumstances of this case, I find that this timing is insufficient to establish reprisal. The personal respondent testified that he issued the verbal warning to the applicant due to the issue that had been raised with him by Garda’s client and also in part due to the applicant’s demeanour during the meeting on January 11, 2011. It may be, as suggested by the applicant, that the personal respondent should have followed up with his client before issuing the verbal warning. However, I do not accept that his failure to do so is a sign that he intended to retaliate against the applicant for enforcing his rights under the Code. In all the circumstances set out above, I find there is insufficient evidence to find that the personal respondent issued the verbal warning as a reprisal due to the applicant’s claims of discrimination.
74I am more concerned about Mr. Adebayo’s remarks to the applicant in April 2011. As noted above, the applicant did not raise this as an alleged reprisal at the hearing but did so in his Reply. Given Mr. Adebayo’s position as a manager, his remarks could be interpreted as applying subtle pressure on the applicant to drop his human rights Application and/or grievances that raised human rights allegations. However, based on the evidence before me, I accept that Mr. Adebayo approached the applicant informally and not on behalf of Garda. I also accept the personal respondent’s testimony that he did not ask Mr. Adebayo to speak to the applicant and in fact did not know that he had done so until a union representative told him about it. The applicant himself seemed more concerned about the fact that Mr. Adebayo spoke to him in front of a co-worker. The applicant did not testify that he felt like Mr. Adebayo was pressuring him to withdraw his Application or grievances. In these circumstances, I find there is insufficient evidence to support the applicant’s claims of reprisal with respect to Mr. Adebayo’s conversation with the applicant.
Request to Re-open Hearing
75By letter dated September 20, 2013, three days after the last hearing day, the respondent’s counsel requested that the Tribunal re-open the hearing. He requested that the hearing be re-opened to hear evidence from Neil Fernandes, Garda’s branch manager during the time period relevant to this Application. The respondent’s counsel stated in his letter, and during the hearing, that the respondents had made several attempts to locate Mr. Fernandes but were unsuccessful since Mr. Fernandes now lives in the United States. The respondents’ counsel advised in his December 20, 2013 letter that Mr. Fernandes had contacted him for the first time that morning.
76The Tribunal has rarely granted a request to re-open a hearing after closing submissions are completed. However, by Case Assessment Direction dated September 25, 2013, I sought submissions from the parties as to whether the hearing should be re-opened to permit Mr. Fernandes to be examined and cross-examined. The respondents provided several reasons why the Tribunal should re-open the hearing. All of these reasons related to what the respondents submitted would be the usefulness and relevance of Mr. Fernandes’ testimony to the Tribunal’s determination of the Application.
77The applicant strenuously opposed the respondents’ request. The applicant’s counsel argued that the respondents did not act with sufficient diligence to communicate with Mr. Fernandes. He also submitted that permitting Mr. Fernandes to testify would cause significant prejudice to the applicant. He argued that the applicant would no longer have the opportunity to examine other witnesses in the event that there were inconsistencies between Mr. Fernandes’ evidence and that of other witnesses.
78By Case Assessment Direction, I denied the respondent’s request to re-open the hearing. I did so because of my conclusion that the applicant had failed to meet his burden of proving discrimination in this case. As a result, Mr. Fernandes’ testimony was unlikely to affect the outcome of the case. Although it is possible that Mr. Fernandes’ evidence on cross-examination could have assisted the applicant’s case, I concluded that it was not appropriate to re-open the case due to the applicant’s strenuous objection to permitting Mr. Fernandes to testify.
ORDER
79For the reasons set out above, the Application is dismissed.
Dated at Toronto, this 10th day of December, 2013.
“Signed by”
Jo-Anne Pickel
Vice-chair