HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Robert Patterson
Applicant
-and-
The Corporation of the City of Mississauga
Respondent
DECISION
Adjudicator: Mark Hart
Date: March 8, 2013
Citation: 2013 HRTO 395
Indexed as: Patterson v. Mississauga (City)
APPEARANCES
Robert Patterson, Applicant
Melissa Mark, Counsel
The Corporation of the City of Mississauga, Respondent
Graham Walsh, Counsel
1This is an Application dated April 30, 2010 and 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 colour and age. While the Application originally also alleged reprisal, this allegation subsequently was withdrawn.
2The applicant was a long-term employee of the City of Mississauga (the “City”), having been employed there since 1973. The allegations raised in the Application date back to 1993 when, as a result of a re-organization, the applicant was placed into a position at a lower salary grade. Subsequently, the applicant raised issues about his position title, job description and salary grade over the next 15 years. During this period, the applicant also alleges that he was denied certain job opportunities. Finally, during the period from May 2008 until April 2009, the applicant alleges discrimination arising from performance management, negative performance appraisals and the denial of any salary increase. The applicant retired from his employment with the City effective April 30, 2009.
3In response to the Application, the respondent filed a Request for Order dated October 12, 2010 seeking, among other things, dismissal of the Application for delay and for failure to disclose a prima facie case.
4The delay issue proceeded to a preliminary hearing on January 12, 2012, and resulted in Interim Decision, 2012 HRTO 598, dated March 23, 2012, in which it was found that the last incident of discrimination had occurred on April 3, 2009, and that the delay of more than one year in filing the Application in respect of this incident was in good faith and would not cause substantial prejudice to the respondent.
5Unfortunately, this Interim Decision did not fully resolve all of the delay issues raised by the respondent. It also did not address the other aspects of the respondent’s Request for Order. Accordingly, by Case Assessment Direction dated July 3, 2012, the Tribunal directed that a teleconference hearing be arranged to hear oral submissions on the outstanding issues. While the respondent had framed one of its requests as being for dismissal due to a failure to set out a prima facie case, the Tribunal treated this as a request for a summary hearing to consider whether the Application has a reasonable prospect of success.
6This teleconference hearing was held on October 18, 2012. At the summary hearing, the applicant consented to the withdrawal of the Application as against all personal respondents. The title of proceeding has been amended accordingly.
Allegations raised in Application
7The applicant raises the following allegations in his Application, as supplemented by materials filed in response to the respondent’s Request for Order and for the teleconference hearing on October 18, 2012, and by oral submissions made at the teleconference hearing:
On March 29, 1993, the applicant was permanently placed in a position as Engineering Services Coordinator in the Facilities and Property Management (“FPM”) division, which was determined to be at a lower pay grade than his previous position. As a result, the applicant’s salary was frozen at its current level, as it was above the job rate for the new position. The applicant states that he did not agree with or accept this change, and would communicate his lack of agreement on his yearly appraisals. He states that his request for discussion of this issue with management was never acknowledged, and as a result, he felt it was ignored and that this action was discriminatory, disrespectful, unfair and unjustified. At the teleconference hearing, this action was characterized as a demotion;
In 1998, the City’s Performance Management Process addressed the applicant’s issue and he received an information package dated June 8, 1998 stating that his salary grade was still above the maximum for his job and so his salary would remain frozen. The applicant submitted an appeal from this decision in August 1998. By letter dated October 7, 1998, the applicant was advised that his job evaluation appeal had not been approved. The applicant states that he continued to communicate that he did not agree with this decision and requested further discussion. He states that his request was never acknowledged and he continued to be ignored and concludes that this action was discriminatory, disrespectful, unfair and unjustified;
On July 25, 2003, the applicant and others were sent an e-mail by the Director of the FPM division stating that the division was being re-structured such that, among other things, the applicant and two others would now report to a different manager. The e-mail also states that the applicant would now receive administrative support from a different assistant than the person who previously had been his prime administrative support person for over 10 years. The applicant raised his concerns about these changes in an e-mail dated September 16, 2003. He states that he received no response;
On August 20, 2003, the applicant received a request from his manager for a preliminary cost estimate for servicing a particular facility. The applicant responded to say that his workload was very heavy and he requested a meeting to discuss his workload and priorities. His manager agreed and asked the applicant for a summary of his current work plan and assigned tasks, so that the manager could assist with setting or adjusting priorities. The applicant responded in turn on September 2, 2003 to say that he had 18 active projects and to provide the information requested would make his workload even heavier. He requested clarification that the requested cost estimate should be prepared before he prepared a summary of his work plan and assigned tasks. The applicant states that he never received a reply to his e-mail and his request was ignored;
The applicant states that at a meeting on September 5, 2003, he was instructed by his manager to no longer use his discretion in expanding and/or refining the scope of work for any budget approved site without approval. In an e-mail dated September 10, 2003, the applicant confirmed this instruction and stated that this new directive would make his job more challenging and lower the standard of service he was used to providing. The applicant states that this unjustified directive was insulting and disrespectful;
By letter dated November 24, 2004, the applicant was advised that in addition to his current role of coordinating capital site service projects, he also was to assume responsibility for coordinating and administering all investigations and repairs of water, sanitary sewer, and storm sewer lines at City properties, with some exceptions. The applicant states that this letter did not make reference to his other job responsibilities, and as a result, he felt that the prime responsibilities of his job and who he should be reporting to were unclear. He states that he continued to request that his job description, position title and salary grade be discussed, but his requests continued to be ignored;
On December 7, 2005, management announced that the existing supervisor position in Energy Management had been upgraded to a manager level position, with the incumbent supervisor remaining in this position. The next day, the applicant questioned why there hadn’t been an open competition for this job. The applicant received the explanation that this was done in accordance with City policy. The applicant states that if this position had been open to competition, he believes he would have been the successful candidate. The applicant states that he feels he was discriminated against by not receiving a fair opportunity to compete for this promotion;
By e-mail dated June 5, 2006, the applicant and others in the FPM division were advised that a job evaluation was being done of positions that were substantially changed as a result of re-organization. The applicant states that, in his case, a change in reporting structure (as described in point 3 above) was not considered substantial enough to warrant review. He states that he received the same response in relation to the responsibilities of his position when compared to the original job description. The applicant states that he made it clear he did not agree with this action, that his situation was not being acknowledged, and that he was not being treated fairly;
By e-mail dated June 1, 2006, the applicant was advised that the Project Coordinator position (which was the title of the position occupied by the applicant at that time) was being put on the list for job evaluation due to added responsibilities and more complicated projects. The applicant’s supervisor proposed creating a small committee to re-work the job descriptions to submit for the evaluation. The applicant responded on June 9, 2006 re-raising his outstanding concerns about his job description and asking to discuss this issue further. His supervisor responded by stating that they were trying to make a “fresh start” and had no intention of re-working the applicant’s job description on an individual basis. His supervisor noted that the applicant currently had the same classification as the other Project Coordinators in his group and therefore had the same job description, and the evaluation process was an opportunity to have the grade for this position increased. The applicant states that he found his supervisor’s comment about making a “fresh start” and being told to forget his past issues with his job description to be unbelievable, discriminatory, very unfair and insulting;
The applicant states that on September 5, 2006, he applied for a position as a Project Manager, but did not receive an interview for this position despite his past experience and qualifications. The applicant states that his past experience with the City was not acknowledged or respected;
By e-mail dated December 11, 2006, the applicant once again raised unresolved concerns about his job description, position title and job evaluation. The applicant stated in this e-mail that he could not forget any unjustified and unfair actions which have had a direct impact on his career and livelihood, and that to make a fresh start without resolving past issues was not acceptable. The applicant states that he had to issue this e-mail because he felt that the feedback he had received to date on his issues was discriminatory, disrespectful, unfair and not in compliance with City policy;
On April 4, 2007, the applicant applied for another Project Manager position and once again was not interviewed. The applicant states that his past experience with the City was not acknowledged or respected, and that he was being discriminated against;
By e-mail dated April 17, 2007, the applicant raised his concerns about his Performance Management Plan, job evaluation and job description with his new manager;
By e-mail dated April 19, 2007, the applicant raised an issue about not being able to use his old templates and being required to adhere to new requirements. He states that he felt bullied and disrespected for wanting to do his job using a system that he had created and that had proved to be effective in the past, rather than by using a new system that he states was found to be unworkable;
In June and July 2007, meetings were held involving the applicant, his manager, his supervisor and a human resources representative to discuss the applicant’s concerns about his job duties, position title and salary grade. The applicant states that in these meetings, he was being bullied to accept a job description that was not complete or official. He states that, as it was clear to him that his issues were not going to be acknowledged, he requested that his issues be taken to a higher level. As a result, the applicant was given an opportunity to meet with the Commissioner of Corporate Services on October 1, 2007. The applicant alleges that the Commissioner agreed that the job description put forward by his manager was incorrect when compared to his original job description, and directed that the applicant and his manager review these job descriptions and come to an agreement on what could be used. The applicant states that meetings scheduled for early 2008 to address this issue with his manager were cancelled, which he found to be very unprofessional and disrespectful. This issue appears to have been raised again at a meeting on May 28, 2008, following which the applicant was re-sent certain documents for review and told to set up a follow up meeting. The applicant states that he refused to attend another meeting on this issue where he would be bullied and intimidated;
On May 13, 2008, the applicant was required to attend a formal “check point” meeting with his supervisor. As a result of this meeting, the applicant was directed to complete certain specific tasks. The applicant responded by stating that the supervisor’s recap of the meeting was selective and incomplete, and did not recognize many other projects that the applicant was working on. The applicant states that he did not receive any reply to his response, which he found disrespectful, insulting and unprofessional;
The applicant states that due to his manager’s concern that he was not completing his priority projects in a more timely fashion, he was singled out and required to attend bi-weekly update meetings;
The applicant’s manager sent him an e-mail dated July 2, 2008 expressing concern that the applicant would not be able to complete his project assignments as per his 2008 work plan. As a result, the manager advised that he was going to move some of the applicant’s assigned tasks off his plate and on to other staff. The applicant responded by e-mail dated July 4, 2008 to raise issues that he previously had discussed with his supervisor at a meeting on June 24, 2008, which the manager had been unable to attend. The applicant states that his manager’s comments conflict with the information previously provided to his supervisor, and are not true, disrespectful and insulting;
On July 8, 2008, the applicant’s manager raised with him an issue about taking sick and vacation time the previous week without following proper procedure. The manager also raised concern about the applicant’s lack of progress on his priority projects and tendency to make excuses and “long-winded” replies. On July 10, 2008, the applicant replied and took issue with his manager’s characterization of events. The applicant states that the comments made by his manager were harassing, disrespectful and insulting;
The applicant received his mid-term performance evaluation on August 6, 2008. He states that he was told by his supervisor that the supervisor did not agree with the ratings and comments, but was told to assign these by the manager and director. The applicant wrote on his evaluation that it was not valid, and that the comments in the evaluation confirmed that he was being harassed, bullied and not respected in his workplace. On August 7, 2008, the applicant sent an e-mail to a human resources representative stating that he was formally appealing the evaluation. On September 19, 2008, an e-mail was sent to the applicant by the human resources representative indicating that if he still wanted to appeal his evaluation, he needed to prepare a written summary of his issues and provide details about why he disagreed with a particular rating. On September 30, 2008, the applicant responded by stating that his performance evaluation was not valid due to unresolved concerns about his job description, and also that he could not respond to the comments in the evaluation because they were vague, misleading and unclear. As a result, the applicant stated that he would not be following the appeal process;
On September 22, 2008, the applicant received an e-mail from his manager raising issues about his attendance at a job site, his failure to answer his cell phone, his absence to attend a dentist appointment, his lack of progress on his priority projects, and arriving at work late and leaving early. The applicant responded on September 23, 2008 to contest the issues raised. The applicant states that he was being singled out from his group and being harassed on issues that previously had been addressed or on small issues that others were not being criticized for;
On November 28, 2008, the applicant’s supervisor responded to a request for one day’s vacation time that had been made by the applicant. This request had been made by the applicant in the afternoon of November 27, to take a vacation day on November 28. The supervisor states that the request was not approved, but the applicant took the time anyway. The supervisor stated that in future, the applicant was to adhere to standard procedure of requesting vacation time at least a week or more in advance. The applicant responded on December 1, 2008 to state that he was not aware of this procedure, which he regarded as unreasonable, and asked that the procedure be reversed. The applicant states that he did not receive a reply, and that this action confirms that he was being discriminated against, bullied, disrespected and harassed;
On December 4, 2008, the applicant submitted a form to his supervisor requesting that he approve 70 hours of equalized payroll deductions in 2009. This request was not approved by his supervisor, because the applicant had a number of projects on his plate that had shown little or no progress. The applicant states that this was not true, and he felt he was deliberately being put in a position not to succeed. The applicant states that this action proves that he was experiencing discrimination and that he was being harassed, bullied and not respected in the workplace;
On February 5, 2009, the applicant received his 2008 final performance evaluation. On February 10, 2009, the applicant sent an e-mail to his supervisor and others stating that he strongly disagreed with the comments in the evaluation, which he says were untrue, without substance and insulting. He stated in his e-mail that the remarks in this evaluation confirm without any doubt that he continued to be harassed, bullied and not respected in the workplace (which the applicant also wrote on the evaluation form);
On February 11, 2009, the applicant received a letter jointly signed by his manager and supervisor to review the status of his priority projects for 2008, to confirm the applicant’s lack of performance in following through with these projects, and to identify minimum expectations for the applicant’s performance. The applicant was assigned specific tasks to be completed within 60 days, and advised that a meeting would be held in 30 days to review his progress. The letter stated that failure to meet the objectives outlined would result in disciplinary action. The applicant responded with a lengthy e-mail dated March 13, 2009 taking issue with the contents of the February 11 letter. The applicant states that the issuance of the February 11, 2009 letter proves that he was being ignored, harassed, bullied, insulted and disrespected, and was part of a plan for him to be fired or forced to leave his employment with the City;
On April 3, 2009, the applicant states that he received his Employee Compensation Information form indicating that his salary effective April 1, 2009 would not reflect any increase, including any economic adjustment increase. The applicant states that the failure to grant him even a standard cost of living increase came as a complete surprise to him, and was just another step to prove that he was being discriminated against, bullied, harassed and not respected in his workplace; and
The applicant states that based on what he experienced prior to April 3, 2009 and because he was not offered an early retirement package which was offered to some of his colleagues, the applicant decided to retire effective April 30, 2009.
Delay
8Section 34(1) and (2) of the Code provide 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.
9By Request for Order dated October 12, 2010, the respondent sought, among other things, to have the Application dismissed for delay.
10As briefly noted above, after requesting further submissions and materials from the parties, this aspect of the respondent’s request proceeded to a preliminary hearing held on January 12, 2012. By Interim Decision, 2012 HRTO 598, dated March 23, 2012, the Tribunal held that the denial of a salary increase as communicated to the applicant on April 3, 2009 constituted the last incident of alleged discrimination and that the delay of more than one year in filing the Application in respect of this incident was in good faith and would not cause substantial prejudice to the respondent. With regard to the applicant’s decision to retire, the Tribunal held that the applicant’s decision was entirely his own and not imposed upon him by the respondent, and so did not amount to an “incident” of alleged discrimination.
11Unfortunately, this Interim Decision did not fully resolve all of the issues raised by the respondent under s. 34 of the Code. In particular, an issue arises as whether any of the other allegations raised in the Application can be regarded as forming part of a “series of incidents” that extends to and includes the April 3, 2009 allegation, and, if not, whether the delay in raising any allegations that do not form part of such a series of incidents was incurred in good faith and would not cause substantial prejudice to the respondent. This was one of the issues addressed by the parties at the teleconference hearing held on October 18, 2012.
12In interpreting what constitutes a “series of incidents”, this Tribunal has held that an “incident” refers to an alleged violation of the Code and that, in order to constitute a “series of incidents”, the alleged Code violations must be part of a pattern or series of incidents of a similar nature: see Alleyne v. Toronto (City), 2011 HRTO 560. Relevant to the question of whether the incidents of alleged Code violations are of a similar nature are considerations such as whether the incidents involve different individuals and/or different circumstances: see SB v. Toronto (City), 2012 HRTO 2018.
13I will first consider the nature of the alleged incident of discrimination that occurred on April 3, 2009. As stated above, on this date the applicant was informed that he would not receive any salary increase for the upcoming year. There appears to be no dispute between the parties that the denial of any salary increase was based upon the applicant’s unsatisfactory performance appraisal for the 2008 year. In my view, the nature of this incident is defined by alleged adverse treatment of the applicant based upon a negative assessment of his work performance.
14It is clear that the April 3, 2009 incident is directly and inextricably linked to the 2008 final performance appraisal issued to the applicant in early February 2009. This was not seriously contested by the respondent.
15In my view, the April 3, 2009 incident also is of a similar nature to the performance management letter issued to the applicant on February 11, 2009, which flowed from management’s assessment that the applicant was not fulfilling the responsibilities of his position or making progress on his priority projects, which are the primary issues raised in the 2008 final performance appraisal.
16It also is my view that the work performance and other issues (such as him arriving late and leaving early, failing to give proper notice of absences, late requests for vacation time etc.) raised with the applicant during 2008 also form part of a “series of incidents” of a similar nature to the April 3, 2009 incident. These incidents form part of the basis for the issuance of the applicant’s performance appraisals in 2008, which assessed his performance as unsatisfactory and resulted in the denial of any salary increase.
17As a result, I find that allegations (16) to (26) as set out above form part of a “series of incidents” that extends to and includes the April 3, 2009 allegation. As it already has been found that the delay in filing the Application from April 3, 2009 to April 30, 2010 was incurred in good faith and that no substantial prejudice would result to the respondent as a result of the delay, the respondent’s request to dismiss these allegations for delay is denied.
18With regard to the remaining allegations raised in the Application, it is my view that these allegations are of a different nature and do not form part of a series of incidents that extends to and includes the April 3, 2009 incident. The preceding allegations emanate not from work performance issues raised by management with the applicant, but rather from the applicant’s dissatisfaction with his position and salary grade following a re-organization in 1993. This dissatisfaction simmered until the respondent ultimately made a decision in 1998 confirming the applicant’s salary grade. While I appreciate that the applicant remained dissatisfied with this decision, the issue at that point appears to have been concluded from a management perspective.
19Subsequently, commencing in 2003 and extending into 2007, there were a number of organizational changes in the department with which the applicant took issue. He was assigned to a different supervisor, his administrative support was changed, he had issues with his workload and assigned responsibilities, he took issue with the job evaluation process following re-organization, and he expressed concern about being required to use a new system to produce documents. With the arrival of a new manager in early 2007, the applicant took the opportunity to re-visit his issues regarding his position title, job description and salary grade. And along the way, the applicant took issue with the failure to hold an open competition for one position and his failure to be interviewed for two other positions.
20None of these allegations are linked to any negative assessment or evaluation of the applicant’s work performance. Rather, they arise from organizational changes to the applicant’s position, role, responsibilities and salary grade with which he took issue. These changes involved a variety of other individuals from management and human resources over the years who had nothing to do with the negative assessment of the applicant’s work performance in 2008. Similarly, with regard to the job opportunities or competitions with which the applicant takes issue, there is nothing in the material or submissions before me to indicate that the applicant was denied an opportunity to compete for these positions due to a negative assessment of his work performance. These job opportunities or competitions date from December 2005, September 2006 and April 2007, and therefore occurred well before the first issue raised in the Application regarding the monitoring of the applicant’s work performance in 2008 which relates to the check point meeting held in May 2008.
21It was submitted by applicant’s counsel that a common thread which makes all of these allegations related is the under-recognition and de-valuation of the applicant’s work. I disagree. In my view, there is a significant difference between an allegation that the applicant’s work is not being sufficiently valued and recognized, which appears to have been the root issue behind his disagreement over the years with his position, responsibilities and salary grade, and an allegation that the applicant is being over-monitored and over-scrutinized in relation to the negative evaluation of his work performance. Those are allegations of an entirely different nature and character. They also are temporally disconnected and involve different people.
22Accordingly, I find that allegations (1) to (15) as set out above do not form part of a “series of incidents” that extends to and includes the work performance issues that led to the denial of a salary increase as communicated to the applicant on April 3, 2009.
23As a result, I must next consider whether the delay in raising these prior allegations was incurred by the applicant in good faith.
24As described above, the allegations raised in the Application date back some 17 years before the Application was filed. The first issue raised appears to have been subject to a final decision by management in 1998, some 12 years before the Application was filed. The next allegations raised relate to the period from 2003 to 2006, when the applicant took issue with further organizational changes. These allegations relate to a period of time that ended some four years prior to the filing of the Application.
25The applicant then took the opportunity of a new manager in early 2007 to re-raise his concerns about his job description and salary grade. This appears to have culminated in the October 1, 2007 meeting with the Commissioner, following which the matter was sent back to the manager and supervisor to try to work with the applicant on an agreed-upon job description. By the applicant’s own account, these efforts ended as of late May 2008, when he states that he refused to attend any further meetings to discuss this issue, because he felt bullied and intimidated. From this point, it was almost two years before the applicant filed his Application with this Tribunal.
26The onus is on an applicant under s. 34(2) of the Code to satisfy this Tribunal that the delay in filing an Application was incurred in good faith. This requires that the applicant provide some reasonable explanation for the delay: Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339. In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, this Tribunal held that an applicant is required to show something more than simply an absence of bad faith. In Miller, above, it was held that the one-year time limit is consistent with the policy objective that human rights claims should be dealt with expeditiously, and requires an applicant to act with due diligence when they seek to pursue a human rights claim.
27In offering an explanation for the delay, it was submitted on the applicant’s behalf that he was seeking to resolve his issues internally. As stated above, the issues raised by the applicant in 1993 appear to have been subject to a final decision in 1998. With regard to the organizational changes during the period from 2003 to 2006, the applicant appears to have declined to participate in the job evaluation process to re-evaluate the Project Coordinator position. And with regard to the re-raising of issues regarding his job description with his new manager starting in early 2007, the applicant himself states that he declined to participate further in meetings to discuss this issue as of late May 2008. As a result, in my view, the pursuit of internal resolution does not in fact provide a reasonable explanation for the delay in raising these allegations.
28In any event, in the context of determining whether delay in filing an application has been incurred in good faith, this Tribunal has repeatedly held that persons who feel their rights have been violated are expected to file an application within the one-year time limit specified in the Code, even if this means that they are seeking redress from two different entities or waiting for the result of an internal investigation: see Agyei-Abankwa v. University of Windsor, 2012 HRTO 92; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670; Poole v. Trent University, 2011 HRTO 2086; Foley v. CAW-Canada Local 222, 2011 HRTO 1224; SB v. Toronto (City), above.
29It was further submitted on behalf of the applicant that he needed to wait for a pattern to emerge before concluding that he had been subjected to discrimination because of his colour and age and proceeding with a human rights application. I accept the proposition that in some circumstances it may take time for a pattern of discrimination to emerge and be recognizable to an applicant. However, I have difficulty in accepting that this provides a reasonable explanation for delay in the circumstances of this specific case for two reasons.
30First, as I already have canvassed at length above, the nature and character of the applicant’s pre-2008 issues are significantly different than the work performance issues that started to arise and be addressed by management from May 2008 onwards. Fundamentally with regard to the pre-2008 issues, the applicant states that he did not feel that his work was being sufficiently recognized and valued in the context of his position title, job description and salary grade. This had been an ongoing pattern for the applicant dating back to 1993. As set out above, the applicant has detailed in his Application a whole litany of issues he had raised over time during the period from 1993 to 2007. In relation to these allegations, I find that any pattern already had been well-established by at least May 2008 if not earlier.
31Second, based upon the applicant’s own materials, it is clear that this pattern was recognizable to the applicant as well, at least by September 2007 when he composed the September 19, 2007 e-mail sent to his manager and the Commissioner. In this e-mail, the applicant set out a lengthy list of issues in relation to which he expressed his feeling about not being sufficiently recognized or valued. Accordingly, to the extent to which there was any need to await the emergence of a pattern to support the filing of a human rights application, I find that this pattern had sufficiently emerged by September 2007 or at least by May 2008 at the very latest. I do not find that the need to wait for a pattern of discrimination to emerge provides a reasonable explanation for the applicant’s delay in raising the pre-2008 issues.
32As a result, I find that the applicant has not provided a reasonable explanation for his delay in raising the allegations as set out in points (1) to (15) above, sufficient to satisfy his onus of establishing that the delay in raising these allegations was incurred in “good faith” as that term has been interpreted by this Tribunal in the context of s. 34(2) of the Code. As I have found that the applicant has not satisfied his onus of establishing that the delay in raising these allegations was incurred in good faith, it is not necessary for me to consider whether substantial prejudice would be caused to the respondent if these allegations were allowed to proceed.
33For these reasons, the respondent’s request is granted in part, and the allegations identified in points (1) to (15) above are dismissed for delay.
Reasonable prospect of success
34The next question I need to consider is, with respect to the remaining allegations, whether the applicant has established that he has a reasonable prospect of successfully proving that his allegations would support a finding of discrimination because of his colour and/or age.
35As has been repeatedly stated in the case law, this Tribunal cannot address general allegations of unfairness in employment, unrelated to the Code. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as race, gender or disability. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics was a factor in the treatment the applicant experienced.
36The test that is applied at a summary hearing is whether an application should be dismissed in whole or in part because it has no reasonable prospect of success. At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment they experienced. Indeed, many experiences of unfairness, which are not defined as discrimination in the legal sense, can leave a person with significant financial and emotional damage.
37The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary. In some cases, for example, the applicant will not dispute the respondent’s version of one or more of the facts.
38Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The purpose of the summary hearing is to determine if reasonable inferences can be drawn from any facts or evidence the applicant is able to point to which tend to support the applicant’s belief that he or she has experienced discrimination.
39The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment alleged to have been experienced by the applicant with the applicant’s personal characteristics as raised in the Application.
40Support for that connection may come in a variety of forms: the timing of a person’s dismissal or discipline; comments alleged to have been made by the respondent; comparisons with how other people were treated. These are just some examples of the circumstances, which are often contained in the narrative to the application, that play a role in assisting the Tribunal in determining whether the application has a reasonable prospect of success. However, if the applicant is unable to point to circumstances beyond his or her own assumptions or belief, the application may be found to have no reasonable prospect of success.
41The primary focus in the summary hearing is on the applicant’s evidence. The respondent’s explanation may be considered where there is no dispute about the facts or where it is plainly obvious that a fact must be true. However, the Tribunal is very careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondent has an alternative explanation of the events.
42The Tribunal is also mindful of the fact that in some cases the application must proceed further in the hearing process because the respondent is the party who has control over the evidence which could favour the applicant’s case.
43Having set out the basic framework for determining whether an application should be dismissed in whole or in part for no reasonable prospect of success, I now turn to the facts of this particular case.
44It is clear from the materials before me that there was a dispute as between management and the applicant regarding his work performance in 2008. Management was of the view, as expressed in various e-mails, in the mid-term and final 2008 performance appraisals and in the February 11, 2009 letter, that the applicant had not been making progress on his 2008 priority projects. The applicant clearly took issue with this, and countered with explanations of what work he had accomplished on these projects, the reason for any delays, and management’s failure to account for other items on his workload. There also were disputes over the applicant arriving late and leaving early, failing to provide proper notice of absences, failing to provide proper notice of a request to use vacation time, among other things.
45The issue for me is to try to discern how the applicant intends to prove that these disputes are related to his colour and/or age, as opposed to being part of a dispute over performance management unrelated to the Code.
46The applicant self-identifies as a black Canadian man and at the relevant time was 63 years old. It was submitted by applicant’s counsel at the teleconference hearing that the applicant was the only black Canadian in his division and one of only a handful who had worked for the City over the years. It was further submitted that the applicant was the oldest person in his division by far, especially in relation to the other Project Coordinators who, it was said, were in their 30’s. These alleged facts were not set out in the Application or raised at any time prior to the teleconference hearing.
47The respondent took issue with the raising of these alleged facts at this late juncture, and stated that it was prejudiced in its ability to respond to these alleged facts by being unable to bring forward evidence to establish that they are untrue. While I agree that it is unfortunate that these alleged facts were not raised at an earlier time, it is not the purpose of a summary hearing to determine disputed issues of fact. Rather, I am to proceed at this stage on the basis that the facts as alleged by the applicant are capable of being proven at a hearing. Accordingly, I am prepared to consider, for the purpose of assessing whether the applicant has a reasonable prospect of success, the alleged facts that the applicant was the only black Canadian in his division and was much older than others in the division.
48While these alleged facts provide support for the identification of the applicant in relation to the personal characteristics of colour and age, that is not enough to establish that the applicant would be successful at a hearing in proving a link or nexus between these personal characteristics and the assessment of his work performance in 2008.
49I am well aware that discrimination, and particularly racial discrimination, can be subtle and evasive of concrete proof. Often, such allegations are not supported by direct or overt evidence, the proverbial “smoking gun”, but must be proven by circumstantial evidence and inference. I also am well aware that an applicant, as an individual employee, does not have full access to the information and documents in the possession of the employer, which may be required in order to fully assess whether discrimination has occurred.
50At the same time, an applicant at a summary hearing must come forward with some reasonable basis to establish that he or she is capable of proving a link to the personal characteristics at issue. It is not enough merely to point to the fact that the applicant is a member of a protected group and suffered adverse treatment. Some basis for a connection between these two assertions must be established.
51It was submitted on behalf of the applicant at the teleconference hearing that the performance management of the applicant during 2008 and early 2009 supports an allegation that he was being over-monitored and over-scrutinized. This is supported by the applicant’s allegation that the issues raised about his work performance and lack of progress with his priority projects are untrue, and in his materials he has provided a specific basis to support his view in this regard. He also points to his allegation that his supervisor did not agree with the comments and ratings in the applicant’s mid-term evaluation, but was told to include these comments and ratings by the manager and director. I appreciate that these points are disputed by the respondent, but it is not my role at a summary hearing to resolve issues of credibility.
52I am aware and accept that over-monitoring and over-scrutiny of an employee can be indicia of discrimination. But in the instant case, the applicant has not pointed to evidence that he intends to call that would support the drawing of such an inference. The allegations as set out in the Application are largely devoid of any comparative evidence. The closest that the applicant comes is his assertion that he was “singled out” in relation to the bi-weekly meetings he was required to attend to monitor his performance, and in relation to at least some of the issues raised with him in late September 2008, that he was “singled out” and that “small issues” were being addressed with him that were not being addressed with others.
53Nor did the applicant provide any comparative evidence in relation to his 2008 performance issues in the materials filed in response to the respondent’s Request for Order or for the teleconference hearing, or in the oral submissions made on his behalf in chief. In the applicant’s reply submissions at the teleconference hearing, in response to the respondent’s submission that the applicant had not pointed to any objective evidence to support his suspicion or belief that he had experienced discrimination, it was asserted that the applicant would testify at the hearing that others were not treated the same way. No specifics were provided as to what this testimony would entail. When I raised the fact that I had not seen reference to any such comparative evidence in the Application or in the initial submissions made on the applicant’s behalf at the teleconference hearing, it was stated that such evidence would come out in cross-examination.
54In addition, the applicant did not point to any witnesses he intended to call in support of his allegation that he had experienced discrimination, either in his Application, in the materials filed, or in the submissions made at the teleconference hearing.
55I am not suggesting that every allegation of discrimination through over-monitoring or over-scrutiny of work performance requires comparative evidence in order to be proven. Sometimes the circumstances surrounding the alleged over-monitoring or over-scrutiny will be such that there is simply no apt comparison to other employees. I also am aware that, at this stage of the proceeding, the applicant has not yet received disclosure of documents from the respondent or had the opportunity to request further relevant documents that may elicit such comparative evidence.
56But it appears to me in the circumstances of this case that the applicant should be capable of identifying with at least some degree of specificity other members of his work group who did not share the same personal characteristics at issue in this proceeding and who had experienced similar problems or delays in completing their priority projects but who were not performance managed in the same manner as the applicant. Or the applicant could have explained why this was not an appropriate comparison. Or he could have explained why such comparative evidence was not within his knowledge, and pointed to what information or documents he would seek from the respondent to establish that he was being treated differently. But none of this was forthcoming.
57In the end, all that I am left with is the fact that the applicant is a 63-year-old black Canadian man, who is alleged to be the only black Canadian in his division and the oldest person in his division, who was subjected to performance management on the basis of an assessment by management of his work performance and workplace conduct which the applicant disputes. In my view, that is an insufficient basis to support an inference of discrimination and does not satisfy the applicant’s obligation at a summary hearing to establish that he has a reasonable prospect of successfully proving discrimination if this matter proceeded to a full hearing.
58Accordingly, for these reasons, the Application is dismissed.
Dated at Toronto, this 8th day of March, 2013.
“Signed by”
Mark Hart
Vice-chair