Gaetano Tiano v. City of Toronto, 2013 HRTO 32

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gaetano Tiano

Applicant

-and-

City of Toronto

Respondent

-and-

Toronto Civic Employees’ Union, Local 416

Intervenor

INTERIM DECISION

Adjudicator: Paul Aterman

Date: January 8, 2013

Citation: 2013 HRTO 32

Indexed as: Tiano v. Toronto (City)

APPEARANCES

Gaetano Tiano, Applicant

Self-represented

City of Toronto, Respondent

Heather Crisp, Counsel

Toronto Civic Employees Union, Local 416, Intervenor

Dave Steele, Representative

Introduction

1This is an Application filed 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 ancestry, place of origin, ethnic origin, disability and reprisal.

2The respondent filed a Response and a Request for an Order During Proceedings. The respondent asks that the Tribunal dismiss the Application on the basis of delay and on the basis that it lacks jurisdiction to deal with some of the allegations the applicant makes.

3On September 21, 2012, 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 CAD directed the parties to address the issue of delay, the issue of whether the applicant may be able to prove links to the grounds of discrimination alleged and whether the applicant may be able to prove intent on the part of the respondent to have taken reprisal measures against the applicant. The CAD further provided that either party could file any cases or documents they intended to rely upon at the summary hearing no later than 14 days prior to the teleconference. The summary hearing was held on December 10, 2012.

4For the reasons that follow, I find that the allegations of discrimination because of ancestry, place of origin, ethnic origin, and reprisal should be dismissed. The allegation of discrimination because of disability should be allowed to proceed.

background

5The applicant is employed by the respondent. His job is to service the respondent’s water metering equipment. For a period in 2005 he worked as an acting Supervisor, Meters and Locates. He then applied in 2005 and 2007 for promotion to the level of supervisor on a permanent basis but was unsuccessful. The applicant does not have a secondary school diploma. He alleges that the respondent’s requirement that supervisors possess this qualification is discriminatory. He also alleges that the respondent’s decision to relieve him of his responsibilities as acting supervisor and return him to his substantive position amounted to a reprisal for having challenged the requirement of the educational qualification. The applicant has continued to seek redress for what he sees as discrimination by raising this issue with the respondent’s senior managers, city councillors and, according to the applicant, the mayor.

6In April of 2009 the applicant injured his knee at work. After surgery he returned to work in November of 2009 and provided the respondent with a list of restrictions on his movements as a result of the injury. He alleges that the respondent refused to accommodate these restrictions. The applicant was then off work from December of 2009 to June of 2010 and underwent knee surgery for a second time. He alleges that he again made the respondent aware of his physical restrictions and that the respondent again failed to accommodate the restrictions. The Application sets out a detailed chronology of incidents through 2010 and 2011 that he alleges support his position.

7In relation to his allegations of discrimination on the basis of ancestry, place of origin and ethnic origin, the applicant states that he heard rumours that the respondent does not want to see persons of Italian heritage advance in its organisation and that there were rumours that some of the respondent’s managers made derogatory comments about his intelligence and linked these to his ethnic origin.

8The respondent’s position is that the allegations regarding the job qualifications of a supervisor have no link to a prohibited ground of discrimination. In addition, the respondent argues that these allegations are also untimely in that they relate to events which, at their very latest, ended in 2010. In relation to the alleged failure to accommodate the applicant’s disability, the respondent maintains that the allegations, if accepted, should be dismissed for delay as they all relate to an alleged refusal to accommodate the applicant in 2009. Finally, in relation to the allegations of discrimination on the basis of ancestry, the respondent’s view is that these are simply assertions that have no basis in evidence and should therefore be dismissed.

9The union takes no position on the merits of the Application.

analysis and decision

Allegations in relation to job postings

10Rule 19A.1 reads:

The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of 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.

11The inquiry during a summary hearing was set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9:

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.

12In relation to the applicant’s position that requiring water meter supervisors to have a secondary school diploma is discriminatory, I agree with the respondent that there is no link between this alleged unfairness and the prohibited grounds of discrimination listed in the Code. It is open to the respondent to set educational qualifications as conditions of employment. The fact that the applicant does not meet a condition of employment is not, in itself, discriminatory. Moreover, there is no evidence that this job requirement, which is neutral on its face, has any adverse effect which could constitute discrimination under the Code. For these reasons I conclude that the applicant’s allegation of discrimination in relation to the job postings has no reasonable prospect of success and is dismissed.

Allegation of reprisal

13The applicant’s allegation of reprisal is tied to his claim that the job postings were discriminatory. He maintains that because he challenged the need for supervisors to have a secondary school diploma, the respondent punished him by removing him from his acting position as a supervisor.

14Section 8 of the Code provides:

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.

15In Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 23, the Tribunal noted that: “Reprisal under s. 8 of the Code must be a reprisal for the assertion of human rights and there must be an intention to reprise for that reason”. See also Noble v. York University, 2010 HRTO 878 at para. 31.

16In his Application and at the hearing the applicant simply stated that because he was removed from the acting supervisor position, this must have been due to his having questioned the requirement. The applicant does not point to any evidence to support this allegation. As such it is merely an assertion that a reprisal took place. In the absence of any evidence to support this assertion, there is no reasonable prospect that the applicant would be able to demonstrate an intent to reprise. Accordingly, this allegation is dismissed.

Discrimination based on ancestry, place of origin and ethnic origin

17The applicant indicated in his Application that he had been discriminated against on the above grounds, but the Application does not set out any allegations to that effect. When I asked him why he had identified these grounds in his Application, he stated that he heard rumours that the respondent would not promote persons of Italian ancestry. He also alleges that he had been told that some of the respondent’s managers referred to him as stupid and linked this to his Italian heritage. He stated that a co-worker who wished to remain anonymous had provided him with this information, and that he had no intention of involving the co-worker in this Application.

18The applicant could not point to any other evidence to support 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.

19In the absence of any evidence to support these allegations, I conclude that these are simply accusations made by the applicant. This is not a sufficient basis for these allegations to continue, and they are dismissed as they have no reasonable prospect of success.

Delay

20This Application was filed on May 8, 2012. Section 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:

34. (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.

21The respondent’s position is that the applicant’s allegations of a failure to accommodate his disability are limited to an alleged refusal to accommodate him upon his return to work in 2009, and that there is not a succession of separate acts of discrimination following this that would bring the Application within the time limit set out above.

22In Garrie v. Janus Joan Inc., 2012 HRTO 1955, the Tribunal has noted that the distinction between what constitutes a single act with continuing effects and what constitutes a succession of separate acts with discriminatory effects may be subtle and thus needs to be examined in the circumstances of each case. Here the alleged disability is an ongoing condition. The corresponding duty to accommodate is also ongoing.

23I asked the applicant about the incidents in 2010 and 2011 which he details in his Application. He indicated that these are all examples of an ongoing refusal of the respondent to accommodate his original injury. He stated that this failure to accommodate made the original injury worse. In this regard, the narrative that the applicant filed in support of his Application alleges that over the period from April through August of 2011 he continued to pursue his claim that the respondent was not accommodating his disability. He alleges that in support of this he provided new medical evidence to the respondent on May 16, 2011 and on August 31, 2011.

24In my view the applicant’s claim that he submitted new medical evidence indicates that he continued to pursue what he alleges was a refusal to accommodate his disability. The respondent’s internal correspondence in the period from April through August of 2011 also indicates that it was looking at addressing this allegation. This was not a situation where the respondent was simply maintaining a decision which it had made in 2009 at the time of the applicant’s return to work. For these reasons I conclude that the allegation of discrimination because of disability falls within a year of the Application being filed. This allegation is not out of time and can proceed.

order

25There is no reasonable prospect of success in relation to the allegations regarding the job postings, the allegation of reprisal or the allegations of discrimination on the basis of ancestry, place of origin or ethnic origin.

26The allegation of discrimination on the basis of disability is not out of time and may proceed.

27The applicant has expressed an interest in mediation to resolve this Application. The respondent is directed to advise the Registrar within 7 days of the date of this Decision whether it is prepared to participate in mediation on the remaining allegation. Depending upon the respondent’s position, the Registrar will then either schedule a mediation or a hearing.