Hewage v. Greater Sudbury (City), 2013 HRTO 558

Human Rights Tribunal of Ontario

B E T W E E N:

Neville Hewage

Applicant

-and-

City of Greater Sudbury, Nick Benkovich, Gary Comin, Drew Peloquin and Kevin Fowke

Respondents

-and-

Canadian Union of Public Employees, Local 4705

Intervenor

DECISION

Adjudicator: Keith Brennenstuhl

Date: April 4, 2013

Citation: 2013 HRTO 558

Indexed as: Hewage v. Greater Sudbury (City)

APPEARANCES

Neville Hewage, Applicant

Self-represented

City of Greater Sudbury, Nick Benkovich, Gary Comin, Drew Peloquin and Kevin Fowke, Respondents

Mireille Khoraych, Counsel

Canadian Union of Public Employees, Local 4705, Intervenor

Rick Leroux, 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 on the basis of race, colour, ancestry, ethnic origin and place of origin. The applicant self-identifies as a Sri Lanka-born Canadian citizen.

2By Case Assessment Direction dated July 31, 2012 the Tribunal directed that a summary hearing be held by teleconference to determine if the Application should be dismissed as having no reasonable prospect of success.

3In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

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

BACKGROUND

4At the beginning of the hearing the applicant indicated that although his Application speaks to five discrete incidents of discrimination, he was only pursing one incident of alleged discrimination, namely, the requirement to clean bathrooms. As he withdrew these other allegations, they are dismissed. As well, he asked that Richard Dixon and Wendi Mannerow be removed as respondents. I granted this request and the style of cause is amended accordingly.

5The corporate respondent, the City of Sudbury (the "City") is responsible for managing all municipal matters and services. The applicant is employed by the City as a water operator in the Water/Wastewater Services Division and has held that position since January 5, 2005. In this capacity, the applicant is responsible for conducting tours of the water plants, taking water samples, checking equipment to ensure that operations at the water plant are functioning properly, and maintaining and cleaning the water facilities. The applicant is represented by a trade union, the Intervenor.

6The applicant's reporting depot is the City's Wanapital Water Plant where he attends on most shifts.

7The City has never employed janitors or other cleaning staff to routinely clean its water plants. This duty has at all times been performed by water operators and the corresponding job descriptions list "cleaning" as a job duty. Supervisors do not perform cleaning duties.

8There are two sets of washrooms at the Wanapital Water Plant. According to the applicant it was the practice that water operators would clean up after themselves when they used the washrooms.

9In October 2011, the applicant was approached by his supervisor who complained that the washrooms did not appear to have been cleaned, indicating to the applicant that cleaning of washrooms was part of his water operator duties. The applicant responded that he would not clean "supervisor's feces" and he refused to clean the washroom. Similar confrontations occurred regarding the issue of cleaning washrooms with the applicant persisting that he did not have any duty to clean washrooms. In November 2011, the applicant received a written warning for insubordination for refusing to clean washrooms.

10The applicant alleges that he was the only water operator who was given the order to clean washrooms. According to the applicant the other water operators only had to clean up after themselves when they used the washroom; they did not have to clean up after others.

11The applicant maintains that the duty to clean washrooms was imposed on him because he is Sri Lankan. He claims that the order to clean washrooms was designed to humiliate him and punish him. During the hearing he explained that in his culture groups of people called "untouchables" and "coolies" are shunned and they often resort to cleaning toilets to make a living. He maintains that his supervisor knew or should have known that there was a "cultural sensitivity" to cleaning washrooms.

12The respondents indicate that cleaning the washrooms at the plant had long been a responsibility of the water operators. They allege that the applicant is not unique in his preference for not cleaning washrooms; most water operators do not want to clean the washrooms and have been spoken to about this at some point but they perform their cleaning duties nonetheless. According to the respondents the applicant is the only water operator that has explicitly stated his refusal to clean washrooms.

ANALYSIS

13The issue before me in determining this summary hearing is whether the applicant has no reasonable prospect of establishing that the respondents discriminated against him based on the Code grounds identified by the applicant. Specifically, I must consider whether there is a reasonable prospect that the evidence that the applicant has or that is reasonably available to him can demonstrate that he was treated differentially and a link between the differential treatment and a prohibited ground.

14In considering these issues I am mindful that the Tribunal does not have the jurisdiction to deal with allegations of unfairness. It is limited to dealing with alleged discrimination on the grounds set out in the Code. (See Dabic, above). Moreover, for an application to continue in the Tribunal's process following a summary hearing, 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 set out in the Code. (See Forde v. Elementary Teachers' Federation of Ontario, 2011 HRTO 1389).

15The applicant essentially claims that to the exclusion of the other water workers he alone was required to clean washrooms and that this duty was imposed on him because he is Sri Lankan.

16While discrimination based on the grounds cited by the applicant can be subtle and hard to detect, the applicant must nevertheless provide some reasonable basis for making allegations of such discrimination.

17The applicant has made an allegation of discriminatory treatment, but has not provided an explanation of how he will be able to connect the order to clean washrooms and his Sri Lankan identity. Stating that he is Sri Lankan and that his bosses are "white" does not establish the necessary connection between the respondents' alleged actions and the grounds pleaded by the applicant.

18Moreover, there is no evidence that demonstrates that the applicant was being treated differentially from the other water operators. The was no evidence that the applicant could point to that would challenge the respondent's position, as stated in the job description, that cleaning washrooms is a duty of all water operators. The applicant could not point to any evidence that he has or is reasonably available to him to establish that the other water operators were not required to clean the washrooms.

19The applicant may not like cleaning washrooms but nor do the other water operators as evidenced by at least 30 outstanding individual grievances charging that the City has violated the collective agreement by requiring water operators to clean "urinals (urine), Toilet Bowls (feces) after others as duties".

20Whether the requirement to clean washrooms is a breach of the collective agreement is not for me to decide. It seems clear though that management expects all water operators to clean washrooms as part of their duty to clean the water facilities. In my view, there is no evidence that the applicant could point to that would suggest that the requirement to clean washrooms is particular to the applicant or that the duty is in any way linked to the applicant's Sri Lankan heritage.

21The applicant has provided no evidence to support his assertion that Sri Lankans have a "cultural sensitivity" to cleaning washrooms. This assertion was not raised in the extensive Application narrative and was raised for the very first time at the hearing. I am not satisfied that the applicant has pointed to evidence that would establish that Sri Lankans have a sensitivity to cleaning washrooms beyond that which may be experienced by many people of any culture.

22For all these reasons, the Application is dismissed. I find that it has no reasonable prospect of success and, in particular, that there is no reasonable prospect of establishing a link between the applicant's allegations and a Code ground.