Human Rights Tribunal of Ontario
B E T W E E N:
Carroll Robinson
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services and Glenn Murray
Respondents
INTERIM DECISION
Adjudicator: Paul Aterman
Indexed as: Robinson v. Ontario (Community Safety and Correctional Services)
APPEARANCES
Carroll Robinson, Applicant
Ian Johnstone, Counsel
Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services, Glenn Murray, Laurie Leblanc, Doug Carr, Steve Small, Jane Albright, Allan Gunn and Jay Hope, Respondents
Omar Shahab, Counsel
Introduction
1The applicant is a former employee of the Ontario Public Service who self-identifies as African-Canadian. On December 19, 2011 he filed an Application under s. 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 race, colour and age, as well as alleging reprisal.
2The respondents request that the Application be dismissed on various grounds. They argue that parts of the Application should be dismissed pursuant to s.45.1 of the Code because they were the subject of a settlement of an earlier Application. They also argue that parts of the Application, including the allegations of reprisal, have no reasonable prospect of success because the allegations are vague. Further, they argue that some allegations should be dismissed for delay. Finally, they request that if any part of the Application is to proceed then the individuals named should be removed as respondents.
3The respondents’ Request was heard by teleconference on December 17, 2012. For the reasons which follow, I conclude that the respondents’ Request should be granted in part.
background
4In 2007 the applicant filed two complaints with the Ontario Human Rights Commission (the “Commission”), naming the corporate respondent and three individuals as respondents. The complaints alleged that the applicant was the victim of discrimination in a job competition because of race, colour and age. The parties reached a settlement of the complaints on February 4, 2008.
5The Minutes of Settlement were accompanied by a Release and the parties agreed that the content of the settlement would be kept confidential. Despite this agreement, in their documents and oral submissions in this Application both parties refer extensively to the terms of settlement and the alleged facts underlying the settled complaints. As a result I will have to make reference to them in dealing with this Request.
6Among the terms of settlement were:
An agreement that the applicant would be promoted to a permanent Director position with the corporate respondent as soon as possible, but no later than February 4, 2009;
An undertaking by the corporate respondent that a racialised human resources person or person from its Organizational Effectiveness Division (“OED”) would be a member of all selection panels for positions at the Director level or higher, with the exception of job competitions within the Ontario Provincial Police;
A commitment by the corporate respondent that the OED would provide anti-discrimination training to selection panels for positions at the Director level or higher, with the exception of job competitions within the Ontario Provincial Police; and
An undertaking that the OED would audit selection panels for positions at the Director level or higher to ensure compliance with the Code, the policies of the Commission and the Ontario Public Service.
7In the current Application the applicant alleges that because of the complaints that he had made in 2007, the respondents continued to discriminate and undertook reprisals against him by:
Delaying his appointment to a Director position to the last possible minute by appointing him on the final day permitted under the terms of settlement;
Appointing him to a position as Director of a unit that was subsequently targeted for reductions, leaving it chronically understaffed and underresourced;
Terminating his employment on November 17, 2011 following an internal reorganisation which included the elimination of his position; and
Failing to fully comply with the terms of settlement that required the corporate respondent to include a racialised person on selection panels, to offer the panels anti-discrimination training and to conduct audits of their work.
8The applicant alleges that in the year following the settlement the respondents did little to place him in a permanent Director position. They offered him temporary positions until his counsel wrote to the corporate respondent one week before the deadline imposed by the terms of settlement. Only then was he offered the position of Director of the Strategic Initiatives Branch within the OED.
9The corporate respondent had created the OED in 2007, in the wake of litigation before an ad hoc human rights Board of Inquiry. The mandate of the OED included managing and monitoring the implementation of the Board’s orders, as well as promoting systemic change towards a workplace free of discrimination. At the time the applicant was hired as Director of the OED’s Strategic Initiatives Branch, the branch consisted of two units: a recruitment unit and an internal consulting group.
10At the end of 2009 the OED was restructured. As part of this restructuring the internal consulting group within the Strategic Initiatives Branch was dissolved and its members were transferred to other branches within the OED. The remainder of the branch was then renamed the Recruitment Modernisation Branch (the “RMB”), with the applicant staying on as its Director. The corporate respondent placed a moratorium on recruitment across the Ministry, and the staff of RMB was reduced.
11The applicant claims that despite the reduction in the RMB’s staff he managed to perform his job well, including revamping the process for recruitment and selection of Correctional Officers. He maintains that his performance was praised and that there were no concerns with the quality of his work.
12The applicant alleges that on November 17, 2011 he was advised that the OED was being dissolved altogether and his position was being made surplus. He alleges that for two reasons these decisions were discriminatory and a reprisal against him for having made the 2007 Code complaints. First, he states that the OED had a higher proportion of racialised staff than most divisions of the corporate respondent, and that its focus was on the promotion and protection of human rights. Second, he alleges that recruitment is an ongoing function for the corporate respondent, and the decision of the corporate respondent not to have him oversee that function -neither within the Ministry nor in any other part of the public service - was an action targeting him personally. He claims that the true intent of the respondents became evident to him when he was terminated, namely that the respondents had never intended to provide him with a permanent Director position. From this he concludes that the decision to terminate his employment was a reprisal.
13He also alleges that around the time of filing this Application it came to his attention that the corporate respondent had failed to fully comply with the terms of settlement that required it to include a racialised person on selection panels, to offer the panels anti-discrimination training and to conduct audits of their work.
submissions
The Respondents’ Arguments
14The respondents deny any discrimination or reprisal and argue that the Application should be dismissed on procedural and substantive grounds. To the extent that the applicant uses this Application to reiterate the allegations which formed the basis of his 2007 complaints, the respondents argue that these allegations should be struck because those complaints were the subject of a settlement and full and final release by the applicant. Allowing them to be resurrected through this Application would be an abuse of process.
15They also argue that any allegations of a breach of settlement need to be brought through an Application pursuant to s. 45.9(3) of the Code, rather than through a new Application pursuant to s.34, as the applicant has done. Moreover, they argue that this has not been done within six months of the alleged contravention of the settlement, as s. 45.9(3) requires, and thus delay is another reason to dismiss the allegations.
16The respondents maintain that all decisions regarding the structure and resourcing of the applicant’s branch were driven by legitimate business considerations. They argue that the terms of the settlement were complied with, in that the applicant was offered and accepted a permanent Director position and received the benefits of that position up until it was declared surplus.
17The respondents maintain that the decision to dissolve the OED was because it had fulfilled its mandate. Having made that decision, they state that the applicant was treated like other Directors whose positions were eliminated, including benefiting from a severance package, and he has not pointed to any basis for concluding otherwise. They maintain that his allegation that other individuals were treated more favourably following the dismantling of the OED lacks any particulars.
18They also argue that the applicant’s assertions that the process for conducting and monitoring job competitions was in breach of the settlement are bald allegations. They maintain that because the applicant has not provided any specifics to support these allegations, they should be dismissed.
19Finally, the respondents request that the individual respondents be removed as parties to the Application. They state that the corporate respondent assumes all potential liability for the conduct of the individuals, that the individuals were always acting in their capacities as officers of the corporate respondent, and that the corporate respondent has the means to implement any remedy the Tribunal might order.
The Applicant’s Arguments
20The applicant denies that he is seeking to relitigate any allegations raised in the 2007 complaints. He maintains that this Application only makes allegations of discrimination and reprisal with respect to events following the settlement of the earlier complaints.
21The applicant argues that there has been no delay in filing this Application. He states that there is a series of discriminatory incidents, none of which is separated by more than a year, that supports his claims of discrimination and reprisal and bring the Application within the time for filing. The series consists of:
The delay in appointing him to a Director position until February 2009;
The restructuring of the OED in January 2010;
Decisions by the corporate respondent in 2010 and 2011 that prevented the adequate resourcing of the RMB through the hiring of permanent staff; and
The decision to eliminate his position in November 2011.
22The applicant argues that, taken together, the above events demonstrate a pattern of discriminatory conduct toward the applicant that can only be seen as deliberate on the part of the respondents. The applicant argues that the respondents knew or ought to have known that the future of the OED within the structure of the corporate respondent was unstable. From this he argues that appointing him as a Director into an inherently insecure position is evidence of the respondents’ bad faith, given that the earlier settlement provided that he be appointed to a permanent position.
23The applicant maintains that intent to reprise can also be inferred from the alleged underresourcing of the RMB, despite his efforts to persuade the respondents to allow him to appoint permanent staff. He also argues that some of the functions of the RMB continue to be performed today by other persons. He states that this demonstrates an intent to prevent him from doing work which is still needed by the corporate respondent. He argues that the decision to terminate his employment and not to reassign him to other employment within the public service is discriminatory and a reprisal because other employees whose positions were abolished benefited from being reassigned.
24At the hearing the applicant indicated that he would not oppose the removal of all of the individual respondents except Assistant Deputy Ministers Allan Gunn and Glenn Murray. The applicant argues that Allan Gunn should remain as a respondent because he alleges that while he was waiting to be appointed to a permanent Director position Mr. Gunn repeatedly steered him towards positions that were temporary or otherwise unsuitable, and that this conduct is indicative of an underlying intent not to place him in a permanent position. He also alleges that Allan Gunn was a principal architect of the restructuring of the OED, and cites this as a further reason to have Mr. Gunn remain as a respondent.
25Glenn Murray had been named as a respondent in one of the two 2007 complaints. The applicant alleges that shortly after he assumed the Director position, Glenn Murray remarked to him that he was offended by the fact that the applicant had named him as a respondent in the earlier complaint. The applicant argues that this reflects a personal animus and supports his claim of an intent to reprise against him.
analysis and decision
Delay in appointing the applicant to a Director position
26At the time of the settlement of the 2007 complaints, which was approved by the Commission, the relevant section of the Code read as follows:
Where a settlement of a complaint is agreed to in writing, signed by the parties and approved by the Commission, the settlement is binding upon the parties, and a breach of the settlement is grounds for a complaint under section 32, and this Part applies to the complaint in the same manner as if the breach of the settlement were an infringement of a right under this Act. R.S.O. 1990, c. H.19, s. 43.
27In Dunn v. Sault Ste. Marie (City), 2008 HRTO 149 the Tribunal addressed the issue of the finality of settled proceedings. While that case dealt with the application of s.45.1 of the current version of the Code, and with the settlement of proceedings before a labour arbitrator, the general observations about the importance of respecting the finality of settlements apply equally in this case. The Tribunal stated at paras. 34-35:
The importance of final and binding settlements in the unionized workplace is articulated in the purposes of the LRA, which include “[t]o promote the expeditious resolution of workplace disputes”. The importance of binding agreements was articulated by the OLRB as follows in TRW Automotive (Kelsey-Hayes Canada Ltd.), [2000] OLRB Rep. July/Aug. 731 at para. 14:
Parties are entitled to rely on agreements freely entered into. Nothing would be more disruptive to orderly labour relations than to permit parties to revoke agreements among employees, their trade union, and their employer into which the parties have entered to settle disputes or potential disputes.
This is true of human rights disputes, in whatever social area they arise. There is a strong public interest in ensuring that when parties freely choose to resolve the substance of a human rights dispute, in whatever forum it is brought, the matter is at an end. This is a fundamental principle that should guide the Tribunal in the interpretation of s.45.1because to do otherwise could make the finality of settlements highly uncertain.
28It is not disputed that the corporate respondent only appointed the applicant to a Director position very shortly before the settlement’s deadline. However, the parties negotiated the terms of settlement and the applicant agreed that the corporate respondent would have a year to fulfil this term. The term was met within the negotiated deadline. Given the corporate respondent’s compliance with this term of the settlement, the applicant’s argument that the delay in appointment was discriminatory and/or an act of reprisal has no merit. It would undermine the finality of negotiated resolutions if the Tribunal were to look behind the terms of settlements, particularly when those terms have been complied with and implemented. This allegation is dismissed.
The restructuring of the OED, alleged underresourcing of the RMB and subsequent termination of the applicant
29The above events postdate and are not barred by the settlement of the 2007 complaints. The applicant alleges there are links between the restructuring of the OED in January 2010, decisions of the corporate respondent in 2010 and 2011 that prevented the adequate resourcing of the RMB through the hiring of permanent staff, and the decision to eliminate his position in November 2011. I need to determine whether any of the allegations relating to those events should be struck out due to delay or because they do not disclose a prima facie case of discrimination or reprisal.
30Section 34 of the Code establishes a statutory time limit for filing applications, subject to certain exceptions. The relevant portions of section 34 are as follows:
- (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
31In this case the one year period runs from 19 December, 2010, which is one year before the Application was filed. None of the above events is separated from the next by a year. Are they sufficiently linked to amount to a series of incidents of discrimination within the meaning of s.34(1)(b)?
32The decision in Garrie v. Janus Joan Inc., 2012 HRTO 1955, provides a useful review of the Tribunal’s decisions on this issue and, at paras.38-43, a framework of analysis for approaching such cases. Applying that framework of analysis, I am satisfied that at this stage of the proceedings these allegations should not be struck out for delay.
33First, the last conduct complained of – the applicant’s termination – could arguably support a finding of discrimination on its own, in that the applicant’s termination followed upon a commitment made less than three years earlier to appoint him to a permanent position. This, along with the fact that the OED as a whole was constituted as a temporary structure within the corporate respondent may support the applicant’s theory that there was never any intent to appoint him to a permanent position.
34Second, the allegations around the restructuring of the OED, its effect on the applicant’s branch and his subsequent requests for permanent staff over the course of 2010 and 2011 are arguably a series of separate but related incidents in that they all deal with steps taken by the corporate respondent to make changes to the structure, capacity and functions of the applicant’s branch and his role as a Director within the Ministry. In that regard, they are arguably linked to the decision to terminate the applicant’s employment.
35Third, the ultimate impact of this series of events may not have been evident to the applicant until his employment was terminated. His argument is that the intent necessary to support a finding of reprisal only became clear at the point that his employment ended. In my view these events are distinct from one another but are related in nature, as they all deal with the applicant’s role with the corporate respondent until that role itself ends.
36For these reasons I conclude that the nature of this sequence of events is such that they constitute a series of events within the meaning of s.34(1)(b), with the last incident occurring within a year of the filing of the Application. These allegations, if proven, could support findings of discrimination and, possibly, reprisal. For these reasons they will not be struck for delay or because there is no reasonable prospect of success. It is important to emphasize that these in no way constitute findings as to the merits of the applicant’s claims of discrimination and reprisal in relation to any of the events in this series. Those issues will be decided at a hearing.
Alleged failure by the respondents to implement the terms of settlement through the composition, training and monitoring of job selection panels
37The applicant provided no particulars whatsoever to support any of these allegations. As the Tribunal noted in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17:
The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one’s Code rights.
38In the absence of any particulars, the applicant is simply advancing bald allegations. He has not shown that there is any merit to these allegations.
39From a procedural perspective, these allegations amount to an assertion that the terms of settlement were breached. If the applicant had provided any particulars then the proper approach would have been to bring an Application pursuant to s. 45.9(3), rather than to include them in this Application. These allegations are dismissed.
Removal of personal respondents
40Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party. In Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal set out relevant factors to consider at para. 5:
Applying these principles to the Tribunal’s power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:
Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?
Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?
Would any prejudice be caused to any party as a result of removing the personal respondent?
In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.
41The corporate respondent assumes any liability that might be attributed to the actions of Allan Gunn and Glenn Murray, and indicates that it is prepared to implement any remedy the Tribunal might order. Further, the respondents maintain that at all times Mr. Gunn and Mr. Murray were acting in their capacities as officers of the corporate respondent.
42The allegations in relation to Allan Gunn relate to the delay in appointing the applicant to a Director position and to Mr. Gunn’s alleged role as a principal architect of the restructuring of the OED.
43As I have determined that allegations relating to delay in appointing the applicant to a Director position have no merit, there is no basis to maintain Mr. Gunn as a personal respondent in relation to those allegations.
44Regarding Mr. Gunn’s role in the restructuring of the OED, the applicant does not provide any particulars as to what he is alleged to have decided or done. In the absence of any particulars there is no basis on which to conclude that Mr. Gunn deviated from his role as an officer of the corporate respondent such that the Tribunal would make findings against him in his personal capacity. Accordingly, and applying the fourth factor in Persaud, I conclude that there is not a compelling reason to maintain Mr. Gunn as a personal respondent.
45The allegation in relation to Mr. Murray is that he is claimed to have remarked to the applicant that he was offended by the fact that the applicant had named him as a respondent in the earlier complaint. The applicant is alleging that there is a pattern of conduct from 2009 to 2011 that demonstrates an intent to reprise against him for having made the 2007 complaints. In that regard, if the Tribunal were to find that Mr. Murray made the remark and the necessary intent to reprise over the 2009-2011 period had been demonstrated, it might well make an award specifically against Mr. Murray. Given that I have concluded that the allegations regarding the restructuring of the OED, its resourcing and the eventual termination of the applicant can proceed, and that these are founded on a theory of reprisal, I am not prepared at this stage of the proceedings to remove Mr. Murray as a personal respondent.
order
46The allegations regarding delay in appointing the applicant to a Director position are dismissed.
47The allegations claiming failure by the respondents to implement the terms of settlement through the composition, training and monitoring of job selection panels are dismissed.
48The allegations regarding the restructuring of the OED, the alleged underresourcing of the RMB and the subsequent termination of the applicant may proceed.
49The personal respondents Laurie Leblanc, Doug Carr, Steve Small, Jane Albright, and Jay Hope are removed as parties on consent. Allan Gunn is removed as a personal respondent. Glenn Murray is maintained as a personal respondent.
50The Registrar is requested to schedule the hearing of this Application.
Dated at Toronto, this 21st day of February, 2013.
”signed by”
Paul Aterman
Vice-chair