Valiani v. Canadian Labour Congress, 2013 HRTO 684

Human Rights Tribunal of Ontario

B E T W E E N:

Salimah Valiani Applicant

-and-

Canadian Labour Congress Respondent

DECISION

Adjudicator: Ian R. Mackenzie Date: April 24, 2013 Citation: 2013 HRTO 684 Indexed as: Valiani v. Canadian Labour Congress

APPEARANCES

Salimah Valiani, Applicant Jessica Eisen and Farah Malik, Counsel

Canadian Labour Congress, Respondent James Shields and Thomas S. Finlay, Counsel

Introduction

1Salina Valiani filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of sex, race, colour, ancestry, place of origin and ethnic origin. She also alleged discrimination based on association with a person identified by a prohibited ground but did not pursue this ground of discrimination at the hearing. Consequently, I have determined that this ground has been abandoned.

2The applicant self-identifies as a Canadian-born woman of East-African and South-Asian origin. She also self-identifies as a “racialized woman”. She alleges that she was discriminated against during her employment with the Canadian Labour Congress (“CLC”) from 2005 until her resignation in 2008. She filed her Application in 2009.

3The hearing was scheduled to commence on November 21, 2011. The applicant requested an adjournment because she was in the process of changing counsel. In Interim Decision 2011 HRTO 1886, dated October 19, 2011, I dismissed the request for an adjournment.

4At the commencement of the hearing, the respondent objected to the introduction of new allegations contained in the witness statements that were not contained in the Application. These witness statements were provided to the respondent in accordance with the disclosure of witness statements mandated by the Tribunal’s Rules of Procedure. The respondent submitted that the new allegations were also not particularized. The applicant admitted that the timing of the provision of the witness statements was not ideal, but that the appropriate remedy was to adjourn the hearing after the testimony of the relevant witnesses. The applicant submitted that she is alleging a pattern of conduct, and these allegations are related to that pattern of conduct. The respondent submitted that it did not have the ability to investigate the allegations and that the proper remedy was to simply disallow the evidence on those allegations.

5I allowed the additional allegations to be introduced, as they relate to the grounds of discrimination relied upon by the applicant in her Application.

6During the course of the hearing, the respondent submitted as evidence a memorandum about the conduct of the applicant, prepared by an administrative assistant at the CLC. The administrative assistant was not called to testify. In the absence of testimony (especially cross examination) and the prejudicial effect of the document on the applicant, I have not given the document any weight.

7I heard testimony from witnesses for the respondent and from the applicant about issues that arose after the resignation of the applicant. I find that this evidence is not relevant to the allegations of discrimination and I have not summarized that evidence.

8Having regard to the evidence and the submissions of the parties, I have concluded that the applicant has not established a prima facie case of discrimination and I am dismissing the Application. These are my reasons.

Summary of Evidence

9The applicant’s allegations relating to her employment at the CLC fall into the following four categories:

i. Workload distribution: number of files assigned and removal of files from her responsibility.

ii. Differential treatment: sick note; payment for lost passport; scrutiny on working at home; request to contact insurer on payment for immunizations; and exclusion from Executive Council meetings.

iii. Hostility and exclusion: criticisms of her work; appropriation of her work by others; not invited to contribute to a book; not allowed to attend international conference; failure of supervisor to support her in a dispute with an administrative support person.

iv. Racially insensitive comments made by her supervisor.

Background

10I heard testimony from a witness for the applicant, Cindy Wiggins, a former employee of the CLC about the structure of the CLC. I also heard testimony of the respondent’s witnesses on the same subject. The CLC is an organization made up of affiliated trade unions, federations of labour and labour councils. There are four elected officers: A President, a Treasurer and two Executive Vice-Presidents. The organization consists of a number of departments.

11The applicant worked in the Social and Economic Policy (SEP) department. She was hired by the CLC in May of 2005 as a National Representative (Researcher) and commenced her employment on August 15, 2005. She was initially on a six-month probationary period and was confirmed as a permanent employee on February 15, 2006. She resigned from the CLC on August 18, 2008 with an effective resignation date of September 1, 2008.

12The director of SEP (and the applicant’s direct supervisor) was Andrew Jackson. He is responsible of the overall direction of the work of the department. The SEP department provides research and analysis support to CLC committees and other departments within the CLC. CLC committees are made up of representatives from the CLC affiliated unions and organizations. Mr. Jackson testified that there is a lot of collaborative work with other CLC departments. He also testified that the SEP department researchers have a fair bit of autonomy in their work. One of the departments that the applicant did research for during her tenure with the respondent was the human rights and anti-racism department. Karl Flecker is the national director of that department. He is a racialized man.

13When she was hired the applicant had a Master’s degree. While she was employed with the CLC she was working on her doctorate. She received her Ph.D. in 2009, after her departure from the CLC. The applicant has had numerous publications of her research during her employment with the CLC and subsequent to her resignation. She has also presented at numerous conferences in Canada and abroad.

14The applicant stated that she was the first racialized researcher permanently employed in the SEP Department, and the only female, racialized professional worker in the national office.

15Jo Jo Geronimo was the Executive Director of the Labour Education Centre (now retired). The Labour Education Centre is not part of the CLC but works in collaboration with it. He testified that he had worked closely with the applicant and spoke highly of her work and her reputation within the labour community.

16Gordon Falconer was a member of two committees that the applicant was the assigned researcher for. He was a representative from the United Steelworkers union. He testified that her work was fine and that she responded appropriately to criticism. Howie West was a representative from the Public Service Alliance of Canada and was also on committees that the applicant was assigned to. He testified that she was an active participant at committee meetings and he had no problem with her work.

17There are two bargaining units at the CLC: one for support staff and the other for professional staff. The applicant testified that she was familiar with the collective agreement and had studied it. She also testified that she was aware of the grievance procedure at the CLC. She testified that she did want to grieve her differential treatment, particularly with regards to the live-in caregiver paper, in July of 2008. She testified that the union did not take up her grievance. She was told by the union steward that the union was not sure that there was anything to grieve under the collective agreement. She also testified that the union was not prepared to proceed with a grievance relating to her concerns about lieu time. She also provided information to the union about the refusal to pay passport expenses, but did not get a response.

Workload distribution: assignment of work and removal of files

18When hired, the applicant was assigned responsibility for the following files and committees: women's issues, workers of colour, anti-racism and disability rights matters, skills training and apprenticeship. The applicant testified that she was assigned more files and more challenging committees than her white colleagues.

19The applicant testified that the files assigned to her were difficult, viewed negatively by the SEP and were generally avoided by her colleagues and supervisor because of the problems they caused within the organization. The applicant testified that two of the assigned files required committee consultation and follow up, which added another layer of complexity and organizational difficulty to her. She testified that her colleagues only dealt with one committee in their respective file loads.

20Mr. Jackson testified that the applicant was hired to replace a retiring employee whose primary responsibility had been for the training and apprenticeship file. It was his assessment that her workload was not significantly more onerous or complex than the workload of others in the SEP department. He also did not believe it was a heavier workload than others in the department. He testified that work on women’s issues would normally be undertaken by a woman in the department. He also testified that the applicant was eager to take on that work. He testified that she also wanted to work on issues in the temporary foreign worker area.

21The applicant testified that she asked Mr. Jackson for a lighter load shortly after being assigned the work, but was denied.

22In January 2008, two files were removed from the applicant’s responsibility: apprenticeship and international trade. The applicant testified that this removal was made without explanation from her supervisor or anyone else within the organization. She also testified that no one had raised any concerns about her work on these files. She testified that the international trade file was the most relevant to her previous work experience and she had expressed her desire to continue working on this file. She testified that the file was reassigned to a white employee. The applicant also testified that none of her SEP colleagues had files removed from their responsibility in her time at the CLC.

23Mr. Jackson told the applicant that responsibility for the apprenticeship file was being removed at the request of the President of the CLC. She testified that she was taken aback by the decision. She felt that she had been doing the work and there had been no problems. At the same meeting, she was told that the international trade file was also being removed from her responsibility. She asked him why, and he told her that it was being removed at the request of an executive assistant to the President, Steve Benedict, because she did not get along with people. Mr. Jackson could provide no further information on the reason for the removal of the file. She testified that this was a file that she knew very well and had good relationships with all the union representatives working on the file. She testified that the file removal made her “look bad”. The file was reassigned to a white female colleague. She also testified that this colleague refused to meet with her to discuss the handover of the file.

24Mr. Jackson testified that he had no role in the removal of the international trade file. He testified that the applicant asked him the reason for the removal and he had been reluctant to tell her because he was not sure if it was appropriate for him to tell her.

25The applicant met with Mr. Benedict and he told her he did not tell Mr. Jackson to remove the international trade file from her responsibility. She followed up with Mr. Jackson and he said that Mr. Benedict had told him to combine the bilateral trade issues (being done by another SEP officer) with the international trade (multilateral trade) and give it to one person. Mr. Benedict then told her that he did tell Mr. Jackson to give the file to the other officer.

26The applicant testified that Mr. Benedict directed her to send all research requests on immigration to Mr. Flecker. She testified that she received a request for information from a researcher with another union organization and she had to tell the requester that she could not provide her with that information, but could not tell her why. She testified that this would affect her credibility as a researcher in the trade union movement. This was, the applicant testified, the last straw and she decided to leave the CLC.

27Ms. Wiggins testified that it was not the usual practice to remove files from research officers during her time at the CLC.

28Maureen Prebinski is an executive assistant to the President of the CLC. She is responsible for oversight of a number of departments on behalf of the President. This oversight includes making sure that the work being conducted in each department is reflective of the priorities and policies of the CLC. The departmental Directors report to her. She testified that she was aware of the reasons for the removal of the apprenticeship file from the applicant. She testified that she had been told by executive officers of the CLC that they had received complaints about the applicant’s work on the file. She testified that the CLC was able to obtain new funding for an additional staff person and she gave instructions to Mr. Jackson to remove the applicant from the file and give this work to the new employee.

29Mr. Jackson testified that he was asked to reassign the apprenticeship file by Ms. Prebinski because of some unhappiness on the committee with her work. In addition, there was a new employee who had been hired to work in the training area generally. He did not recall the explanation he gave the applicant for her removal from the file.

Differential treatment

30The applicant has alleged that white colleagues were given more flexibility in their work schedules by management, including modified schedules to pursue academic study and other academic activities, which were not offered to her.

31The applicant testified that she was on sick leave for two weeks in May of 2006. When she returned to work, Mr. Jackson asked her to provide a doctor’s note. She testified that she obtained the note but later discovered that doctor’s notes were not required for short-term illness for employees in the professional bargaining unit. She testified that it was only administrative staff who were required to provide doctors’ notes. She stated that this lead her to believe that Mr. Jackson did not see her as part of the professional staff.

32Mr. Jackson testified that he raised the issue of sick leave with the assistant to the Secretary-Treasurer of the CLC because it was the first time he had been asked to approve sick leave in advance. It was his recollection that the assistant requested the sick leave certificate from the applicant.

33Ms. Prebinski testified that it is the practice of the CLC to request medical certificates for extended sick leave absences, generally of one week or more. There is no provision in the collective agreement for professional staff on requests for medical certificates. She testified that she reviewed personnel files of professional staff and found approximately ten requests for medical certificates over a period back to 1991. In cross examination she was not able to determine if in all of these cases a note had been requested, just that one had been provided.

34The applicant testified that one of the administrative staff raised her voice to her and slammed an office door. The applicant raised the issue with Mr. Jackson. She testified that he did not deal with the situation appropriately and that she felt that white professional staff would not be treated in the same way. Mr. Jackson testified that his role was not to intervene on her behalf but to act on behalf of all staff in the department. It was his intent to resolve the conflict within the department and his view that this was best accomplished by not taking sides.

35The applicant testified that in 2007 she was a delegate for the CLC to a conference in India. She testified about her difficulties in getting the CLC to pay for the necessary immunizations. Mr. Jackson initially told her that the health insurer would cover the costs. She checked with the insurer and was told that the cost would not be covered. When she told Mr. Jackson this, he asked her to check again. Mr. Jackson did not recall asking her to check on coverage for immunization costs.

36During the trip to India, the applicant’s passport was stolen. She asked for reimbursement for the cost of a replacement passport. She testified that Mr. Jackson refused to authorize the payment. The applicant testified that passport costs were covered for others at the CLC. Mr. Jackson recalled that the applicant lost her passport but did not recall any discussions about the replacement costs. He testified that his passport costs were not covered by the CLC. Ms. Prebinski testified that passport costs were only covered for employees in the International Department.

37The applicant testified that she was treated differently with regards to working from home. In 2007, the applicant received an email from Mr. Jackson with regards to working at home. She testified that this was a new rule and it looked like she was being singled out.

38Mr. Jackson testified that he sent an email to all staff to remind them that advance approval was required for working from home. In an email to the applicant he stated that the rules on working at home applied to all staff, “in case you feel singled out”. He testified that he had the general sense that she had feelings that she was being treated differently and he wanted to assure her that this was not the case. In her response to his email, the applicant stated: “I don’t feel singled out and thanks for your concern”.

39The applicant testified that she was also treated differently when it came to taking time-off in lieu of overtime (compensatory leave). In the summer of 2008, she requested time off but was told by Mr. Jackson that she could not take consecutive days off.

40Mr. Jackson testified that he asked for justification from the applicant for the amount of lieu time she was requesting. He stated that it was unusual to generate that much time in lieu (11 days). He testified that he asked all staff to request permission for the use of lieu time. He stated that he did not refuse the request because she was a racialized woman.

41The applicant testified that she raised this with the union steward who told her she had never heard of this rule. The applicant did not file a grievance. She combined her compensatory leave with vacation leave in order to get consecutive days of leave.

42Ms. Prebinski testified that the scheduling of lieu time is governed by a letter of understanding with the staff union and may be applied differently in each department, based on operational considerations.

43The applicant was invited to attend a conference in 2007. The President of the CLC, Ken Georgetti, said that he did not really see the value in her attending. The applicant testified that she was disappointed in the response. She felt that this reaction was because it was she who was invited – a racialized person – rather than another member of staff. She spoke to Mr. Jackson about it and in the end was permitted to attend. The applicant testified that Mr. Jackson told her she had permission to go but should “back off now”. She testified that she felt disrespected and that white male staff would not be treated in this way. Mr. Jackson testified that he did not recall telling her to “back off” with regards to the international travel request. He testified that he intervened with the President to approve the travel that he was not inclined to approve.

44The applicant was invited to a labour council summit in Toronto and asked permission to go from Mr. Jackson. She was told by Mr. Jackson that it was wise to avoid internal politics. She testified that she felt excluded from something that she thought she was a part of. Mr. Jackson testified he expressed the need to be cautious in accepting the invitation because of some “politically-charged implications”. He testified that it was not normally the case that a staff member would be invited to attend such a meeting without going through the Executive Director of the CLC. He testified that he would have given the same advice to any other staff member.

45In December of 2006, Mr. Jackson and Mr. Flecker were invited to attend a CLC Executive Council meeting for a discussion on the temporary foreign worker program. Ms. Prebinski testified that Executive Council meetings of the CLC were scheduled three times a year. The Executive Council is made up of the elected leaders of the largest affiliated unions, presidents of federations of labour and both elected and appointed equity members. The President has the overall say on the agenda, but Ms. Prebinski would work with him and senior managers to develop the agenda.

46The applicant testified that she was told belatedly that she should attend to listen to the discussion. She stated that there was no mention of her contributions to the work of the CLC at the meeting. She testified that she felt that someone else was taking credit for her work and that she was not deemed worthy of credit.

47Mr. Jackson could not recall the details of the January 2007 CLC Executive Council meeting or of any discussions with the applicant about the presentation. He testified that it was relatively unusual for departmental staff to make presentations to Executive Council although it was not unheard of when drawing on the special expertise of a staff member. He testified that it was never his intention to take credit for the applicant’s work.

48Mr. Flecker testified that Directors are required to attend Executive Council meetings. He testified that temporary migrant labour was becoming a hot issue and his department took the lead in establishing an advocacy group on the issue. He testified that he included input from people working on the file, including the applicant, in developing the presentation. He testified that he did not exclude the applicant from the presentation but that this was a function of the hierarchy of the organization.

49The applicant testified that at the Executive Council meeting in 2007, a white male colleague was invited to do a presentation on his work on interprovincial trade agreements. She testified that this demonstrated to her that your work was acknowledged if you were a white male but not if you were a racialized woman.

50The applicant was invited to make a presentation at the May 2007 Executive Council meeting.

51The applicant prepared a paper that was released while she was in India. She testified that she only learned of its release from media reports. Media calls were handled by Mr. Flecker. She testified that she was shocked that it was released in her absence and that her work was not acknowledged. Mr. Flecker testified that he had nothing to do with the release of the paper.

52The applicant testified that there was an internal discussion at the CLC about who should go to a conference in Brussels. In the end, it was decided that Mr. Flecker would go, rather than the applicant. The applicant felt that she should have gone to the meeting, given her policy work in the area. She testified that she was told that instead of going to the conference she could present her position paper to the Executive Council. She testified that she felt that it had been decided to send Mr. Flecker because he was male. She testified that Mr. Flecker and Mr. Jackson were getting credit for increasingly high profile work because “everybody wants to jump in” and “people with power were given more power”. Mr. Flecker testified that he had no role in the decision on who to send to the international conference.

53Ms. Prebinski testified that the final decision on international travel rested with the President. The decision to approve travel was based on an assessment of the cost and whether the topic fit with the organization’s priorities.

54The applicant testified that a media call relating to a Statistics Canada study on immigration and labour markets was referred to a white male colleague. She felt the topic was in her area of study. She also noted that she had a Ph.D and her colleague only had an M.A. Mr. Jackson testified that he referred the media request to the other officer, because he was the CLC’s economist and this was a request for a response to an economic impact study. He testified that, in his judgment, this staff member was best placed to respond to the study.

55The applicant described an interaction with Mr. Jackson about the posting of a paper online. She testified that she felt his tone was condescending and she did not think he was listening to her. Mr. Jackson recalls that he had a discussion about a posting of a briefing note on the CLC website, without the changes suggested by him. He testified that he did not appreciate the emails he received from the applicant on this issue, but did not agree that he was being condescending. He testified that it was normal practice for documents to go through him prior to posting and he did not treat her differently than any other staff member.

Hostility and exclusion

56The applicant testified about an issue that arose on the apprenticeship subcommittee of the CLC in 2007. The applicant described how the SEP had adopted the use of the term “migrant worker” over “temporary foreign worker” because of the negative connotation of the word “foreign”, as someone who does not belong. A disagreement arose in the apprenticeship subcommittee where a member of that committee (a representative of a constituent union of the CLC) wanted to use the term “foreign worker” to describe one type of migrant worker. She testified that this approach was contrary to CLC policy. The union representative wrote an email about the terminology, and the applicant was concerned about the tone of the email which she described as disrespectful. The applicant testified that she was concerned also that she would be chairing the subsequent meeting and was worried about the challenges in managing the meeting in light of the disrespectful tone. She testified that she mentioned it to the chair of the committee but the chair did not reply to the union representative. She also raised her concern with Mr. Jackson, but he did not initially respond. The applicant raised this issue with her CLC union steward who told her to tell Mr. Jackson that if he or the committee chair did not respond that she would need support at the meeting. When she informed Mr. Jackson, he did reply. She testified that his response did help at the meeting and the meeting went well. She thanked him for writing the email. She testified, however, that he did not address the disrespectful tone in the email.

57Mr. Flecker was the lead on the Changing the Canvas project for the CLC. The applicant was assigned to the Changing the Canvas Project in 2008. She prepared a paper for the project in March of 2008. Mr. Flecker was responsible for coordinating the paper at the departmental level.

58The applicant prepared a paper and received comments from Mr. Jackson. She also received comments from Mr. Flecker. The applicant testified that she felt that Mr. Flecker had “appropriated” the paper and wanted to take credit for her work.

59Mr. Jackson testified that the Changing the Canvas project was the responsibility of Mr. Flecker. Mr. Jackson did provide comments on the paper prepared by the applicant. He testified that the applicant was reluctant to make the suggested changes of Mr. Flecker and Mr. Jackson was trying to get her to make those changes.

60The applicant testified that Mr. Flecker stopped speaking to her and she did not know why. She felt that he was excluding her from meetings.

61The applicant also felt that her work was not recognized in updates that were being provided to an ad hoc group. She noted that the entry for the work done by Mr. Jackson was twice as long as her entry but the work was not comparable. She testified that this made her feel that her work was overlooked and not worthy of mention and that the contribution of a white male was more important than the contribution of someone like her.

62The applicant testified that she was excluded from contributing to a book that one of her colleagues was editing. She testified that she learned about the project by accident. She testified that everyone in the SEP department was involved in the project except for her. She raised this with Mr. Jackson and he told her that they had just been talking that day about her involvement. However, she testified that there was already a table of contents and chapters had been assigned. She learned that Mr. Flecker had been assigned the chapter on immigration. She testified that she was quite shocked to hear this. She made an argument to her colleague and Mr. Jackson that she should be doing that chapter as the researcher on the immigration file and that it was her analysis that was being used in the CLC policy position. She testified that she was told that Mr. Flecker was writing that chapter and that she could write “some stories about live-in caregivers”. She testified that this was the “last straw” for her and she “could not take it anymore”.

63Mr. Jackson testified that he was not involved in determining who would write what chapters for the book being edited by a colleague of the applicant. He did speak to the applicant about her concerns and did not agree with her.

64The applicant also testified about the issue of approved travel and other expenses for the Changing the Canvas project. She testified that the tone of Mr. Flecker in his emails was condescending and not particularly friendly. She testified that she felt she was being unfairly scrutinized.

65The applicant testified that in December 2007, a meeting that she had requested with CLC Secretary-Treasurer Hassan Yussuf, to discuss Immigration policy developments, was turned into a 'disciplinary' meeting between Mr. Yussuf, Mr. Flecker and Mr. Jackson, during which she was criticized regarding expenses for the Changing the Canvas project. Mr. Jackson testified that the major purpose of the meeting was to discuss the process of the project itself. He described his role as mostly as a bystander. He said the meeting could be characterized as a pre-disciplinary meeting although he had limited recollection of the details of the meeting. He testified that he requested that she comply with the request for receipts. Mr. Flecker testified that the purpose of the meeting was to deal with the budget and expenses for the project. He testified that the purpose of the meeting was not disciplinary. He testified that she was not prepared to accept responsibility or to acknowledge that the expenses were not properly submitted.

66The applicant testified about her difficult relationship with Mr. Flecker with regards to her paper for the Changing the Canvas project. She said that she felt confused about the process and shut out. Mr. Flecker testified that he recalled a number of challenging conversations with the applicant during her time at the CLC. He denied that he took full credit for the paper.

67Mr. Flecker testified that he sent a request to Mr. Jackson on March 31, 2008, requesting a different researcher for research support from the SEP department as it was no longer possible for him to work with the applicant. In his request, he outlined four areas of concern:

• Insufficient skills demonstrated in preparing budgets, and persistent problems with financial reporting

• Problems with effective work planning and undertaking requisite research

• Querulous interactions with myself and [Mr. Flecker’s administrative assistant]

• Unsatisfactory level of research, analysis and reporting writing

68In his request, he stated that he believed he had tried everything possible to make the assignment work.

69On May 14, 2008, Mr. Jackson sent an email to Mr. Benedict, reporting that he was unable to resolve the impasse between the applicant and Mr. Flecker:

Brother Flecker continues to have difficulties with the draft of the [research paper], feeling that the changes he has proposed calling for a greater focus on race and on the role of unions has not been fully incorporated. He does not feel it would be productive to meet with Salimah (or Salimah and myself as I proposed) to discuss the remaining differences, and proposes to revise the final draft of the paper himself. I understand this approach has been approved by Hassan.

At my request, Karl has agreed that he will give appropriate credit to Sister Valiani for her work on the paper, provide her with the final version so that she has an opportunity to correct any errors, and to remove her name from the work before publication ... if she so wishes due to any substantive changes made.

Sister Valiani wishes to register her disapproval of the fact that Karl is unwilling to meet with her and myself to discuss and resolve outstanding differences on the research paper, which she feels would be the most positive way forward.

I regret that I have been unable to resolve differences in separate discussions with Karl and Salimah, and leave it to you to provide any further directions as the President deems appropriate.

70The applicant replied to the email from Mr. Jackson as follows:

I’m surprised you’ve handled the situation in this way, but anyway, I did tell you this morning that I don’t see why there should be any substantial rewriting on the topic of the obligation of unions because that was never part of my research outline. The research paper I’ve produced is exactly as aimed for in the abstract I produced beforehand, as well as the paper outline, both of which were approved by Karl several months ago…

You mention in your note that it will be fine if Karl makes his changes, and allows me the opportunity to remove my name from the paper if I find them unsatisfactory.

I strongly object to that formulation. …

71Mr. Jackson was asked at the hearing if this was the usual process for dealing with disputes such as this. He stated that he did not recall any other incident like this. He testified that he did not believe it was appropriate for him to take sides in the dispute. He also testified that Mr. Flecker was ultimately responsible for the project.

72In an email to Mr. Jackson sent later in May of 2008, the applicant returned to the issue of the research paper and stated:

I believe it is your responsibility to assure that what I have produced is in line with what was planned – I am after all, a worker under your supervision.

The fact that Karl wants to put his name on the final product is another thing to which I object, as I’ve said. How would you find it if someone outside the department wanted to add things to a paper of [other SEP department officers], and then add their name to the work? As Director I believe you would point-out that the writing and research prepared by the authors in question should not be redirected, and should not be attributed to the authors, while of course always remaining the property of the CLC.

73Mr. Jackson responded to the email as follows:

I do not want to put words in Karl’s mouth. However, I believe he feels that you resisted appropriate guidance of a project that was under his direction, and that the paper should have been more closely focused on the key themes of the … project – racism and the role of unions.

I appreciate that your perception is different.

It is important to underline that the … project was and is directed by Karl, not myself. I agreed to your involvement, but my role was not and is not to direct your work on this specific project.

I feel that my role in all this was and is to facilitate communication between yourself and Karl rather than to pass judgment or “take sides”. I regret that I have failed in this.

In short, I do not think it is appropriate for me to conduct any investigation or “audit” of the relationship between yourself and Karl. If our union feels differently, they can let me know.

74In July of 2008, the applicant wrote an email to Mr. Jackson after learning that Mr. Flecker was rewriting the entire paper (as opposed to making additions to the paper):

On the whole I must tell you that the only word that comes to mind to describe your approach in handling what came up around the … research project is disrespect. …

While I understand you found the whole affair very challenging to handle, I am sure you would not appreciate similar treatment of your own work.

75Mr. Jackson replied by email, stating that he did not appreciate being accused of disrespect and he believed that his handling of the issue had been appropriate.

76The applicant testified that she was flabbergasted by the approach taken with regards to her paper. She testified that this had never been done to anyone else. She also stated that this was not ethical. She stated that the research and analysis had been created by her and no researcher would allow the purpose of the research to be changed in this way. She testified that Mr. Jackson and others ignored the issues she raised. She testified that she felt that Mr. Jackson and others felt that the live-in caregivers (female and mostly racialized) and herself as a racialized woman did not matter. She testified that she felt used by the CLC because her research, based on her ability to develop a relationship of trust with these women, had been taken over by others. She testified that at this point she was seriously considering leaving the CLC and felt that she had no other choice.

77Ms. Wiggins testified that she had been treated respectfully when she had prepared research analysis on the Charlottetown Accord that was unpopular within the CLC.

78In cross examination, Mr. Flecker agreed that he did not have a Ph.D. and that he was not a researcher. On redirect, he stated that in fact he did conduct research.

79In cross examination, Mr. Flecker agreed that he had reviewed and approved an outline of the research project and that there was no mention of the role of trade unions in that outline. He also agreed in cross examination that he had not made specific reference to a particular union initiative in the “track changes” version of the paper provided to the applicant. He testified that the CLC never published the paper prepared by the applicant.

Racially insensitive comments

80The applicant testified that in the fall of 2007 she had discussions with her supervisor about the terminology used to refer to the Canadian-born children of immigrants. Mr. Jackson used the term “second-generation immigrants” and she asked him why he did not refer to this group as Canadian. She testified that this was a policy issue, but also a personal issue as she is the daughter of immigrants but considers herself to be Canadian. In her view, the term “second-generation immigrant” suggests that “we do not belong” and is a justification of inequality. The applicant testified that Mr. Jackson explained his position, but continued to use the term. She testified that she felt that he did not consider her to be part of his country and his continued use of the term underlined that.

81Mr. Jackson had some recollection of discussions with the applicant about the term “second-generation immigrants”. He testified that there is a debate within the academic literature about whether small children who accompany their parents to Canada should be called second-generation immigrants. He testified that in terms of labour market outcomes, racialized children of immigrants often have relatively poor performance in terms of pay. He testified that he did not use this phrase to suggest that the applicant did not belong. He testified that she did not raise any personal concerns about the comment and its effect on her.

82The applicant testified about a conversation she had with Mr. Jackson at a work-related potluck party at his house, near the end of 2007. They were discussing the samosas that the applicant had made. He asked her if she used chickpea flour and she told him that she had used wheat flour. He said to her, “do they have wheat in India?” The applicant testified that she was shocked by the question. She told him there was wheat in India in the north. He told her that he had not thought that they had wheat in India. The applicant testified that she felt that he was saying that we have wheat in Canada, how can you have it in India? She testified that she felt that he was underlining the differences between them.

83Mr. Jackson remembers the conversation slightly differently. He said he thought they were talking about Uganda and he asked whether they grew wheat in Uganda. Mr. Jackson testified that he was aware that wheat was grown in India. He did not recall the applicant raising any concerns with him about the comment.

84The applicant also referred to a comment made by Mr. Jackson with regard to Jo Jo Geronimo. The applicant testified that Mr. Jackson commented on the name to the applicant, saying “why is his name Jo Jo Geronimo” (with an emphasis on “Jo Jo”). The applicant testified that she felt he was responding to the fact that the name was not an Anglo-Saxon name. She also testified that she felt that if you had a name that is different, this stood out for him and she wondered what he thought of her name.

85Mr. Jackson did not recall any comment about Mr. Geronimo’s first name. He testified that he knew Mr. Geronimo and would never make fun of his name. He also did not have any recollection that she raised any concerns with him about this issue.

86The applicant testified that she did not raise concerns about these comments of Mr. Jackson and did not ask him to apologize. She testified that he was a difficult manager and inexperienced with racialized people. She testified that she was trying to continue to respect him.

Departure from the CLC

87After giving her notice to the CLC, the applicant advised a number of people that she was leaving. Mr. Benedict wrote an email to her saying that it was inappropriate to inform people of her departure.

88The applicant testified that she left the CLC because she “could not take it any more”. She testified that if she had remained she would have been unable to continue her research and advocacy work. She testified that she was also very concerned about losing her professional network and reputation as a researcher.

89The applicant’s last day of work was September 1, 2008.

Submissions of the applicant

90The applicant submitted that this Application is about racism and sexism in the workplace. Discriminatory comments were made and research files were removed from the applicant without credible explanation. She was excluded from participating in key meetings. She and her work were undervalued and downplayed. Her research was subject to unwarranted and excessive scrutiny. The situation became unbearable for the applicant and she was forced to resign.

91The applicant submitted that she established, on a balance of probabilities, that the prohibited grounds of discrimination were factors in her adverse treatment by the respondent.

92The applicant submitted that she was the only racialized woman in a professional role in her department. She stated that she was treated differently from other researchers from the beginning. She gave the following examples:

• She was given a heavier and more challenging workload than her researcher colleagues.

• She received little support from her superiors and no recognition for her work.

• She was required to provide doctor's notes for short absences.

• She was required to pay for her own passport, while others were not.

• She was asked repeatedly to check with her insurer for coverage for immunizations while others were not.

• She was subject to excessive scrutiny in respect of a single budget and two receipts.

• Important and substantial files (international trade, apprenticeship and immigration) were removed from her without reason or explanation.

• Racially insensitive comments were made by her supervisor.

• Concerns about her job performance were never brought to her attention and she was not given an opportunity to address those concerns.

93The applicant submitted that the discrimination and harassment had a profound impact on her and she had no choice but to leave her employment with the respondent at great personal and economic cost.

94The applicant submitted that to meet her onus of proving a prima facie case of discrimination she is required to prove three elements: 1) she is a member of a group protected by the Code; 2) she was subjected to adverse treatment; and 3) her gender, race, colour, ancestry, place of origin or ethnic origin were factors in the alleged adverse treatment.

95The applicant submitted that she had met her onus on all three elements.

96The applicant submitted that, in accordance with subsection 45.5(2) of the Code, the Tribunal is required to consider the Ontario Human Rights Commission (OHRC) Policy and Guidelines on Racism and Racial Discrimination (the “OHRC Policy”). In that Policy, the OHRC recognized that the particular intersection of race and gender can result in unique and meaningful combinations (page 16).

97The applicant submitted that discrimination may be subtle in form and is rarely expressed overtly (Basi v. Canadian National Railway Co. (No. 1), 1988 CanLII 108 (CHRT), 9 C.H.R.R. D/5029 (CHRT), cited in Smith v. Ontario (Human Rights Commission), (2005) CHRR 89 (SCDC) at para 9 (“Smith”)). The assessment of discrimination cannot be done piecemeal, but must be looked at as a whole: Xu v. Georgian College, 2011 HRTO 1262 at para. 45.

98The applicant submitted that subtle racial discrimination can include the following (as set out in the OHRC Policy at page 21):

On-the-job, the following types of treatment may be indicative of racial discrimination:

• exclusion from formal or informal networks

• denial of mentoring or developmental opportunities such as secondments and training which were made available to others

• differential management practices such as excessive monitoring and documentation or deviation from written policies or standard practices when dealing with a racialized person

• disproportionate blame for an incident

• assignment to less desirable positions or job duties

• treating normal differences of opinion as confrontational or insubordinate when involved with racialized persons

• characterizing normal communication from racialized persons as rude or aggressive

• penalizing a racialized person for failing to get along with someone else (e.g. a co-worker or manager), when one of the reasons for the tension is racially discriminatory attitudes or behaviour of the co-worker or manager

99The applicant submitted that the specific racial identities of the individuals involved in this case need not be determinative. A racialized person can be affected by racially insensitive comments even if she is not a member of the group targeted by the comments. Racially insensitive comments poison the work environment (Lee v. T. J. Applebee's Food Conglomeration, 1987 CanLII 8496 (ON HRT), 9 C.H.R.R. D/4781 (Ont. Bd. Inq.), and the OHRC Policy at pages 27-28).

100The applicant submitted that her status as a racialized woman had a negative impact on the treatment she received in the workplace. Although Mr. Flecker is a racialized man, this does not mean that he did not discriminate against the applicant: Brooks v. Total Credit Recovery Ltd., 2012 HRTO 1232; Armstrong v. Anna's Hair & Spa, 2010 HRTO 1751 at paras 52-56; Bageya v. Dyadem International Ltd., 2010 HRTO 1589 at paras 136-137; and OHRC Policy at page 24.

101The applicant submitted that discrimination need not be intentional or purposeful and she is not required to show that any of the differential treatment she received was intentional or malicious. The evidence of the witnesses for the respondent on their intent is therefore of little probative value or relevance and should be given little if any weight (Ontario (Human Rights Commission) and O'Malley v. Simpson-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at para 14, and Smith, above at para 9).

102The applicant submitted that an adjudicator should be wary of suspect factors explaining differential treatment. Subjective reasons provided for differential treatment ought to be scrutinized carefully (OHRC Policy at page 22).

103The applicant submitted that this case involves some direct evidence, but primarily rests on circumstantial evidence. In addition, discrimination can co-exist with other factors. Discrimination need only be one of those factors in order to support a finding of prima facie discrimination (Quattroci v. Boz Electric Supply, 2009 HRTO 1082 at paras 43-44). Plausible alternative explanations are not enough to excuse behaviour if it is concluded that prohibited grounds of discrimination contributed to, or were factors in, the applicant's treatment.

104The applicant submitted that being assigned less desirable job duties can be an indicator of racial discrimination in the workplace.

105The applicant submitted that sick notes were not required of professional staff and the request for a sick note was clearly an irregular and subjective practice. She alleged that she was treated like a member of the administrative staff with respect to her absence. She stated that this treatment would never have occurred with respect to a non-racialized person or a man.

106The applicant submitted that other staff would have been reimbursed for the cost of a passport replacement.

107The applicant submitted that other employees would not have been asked repeatedly to check with the insurer to determine if immunizations were covered by the health plan. She found it humiliating.

108The applicant stated that she was treated differently, more adversely and with hostility when she defended the research analysis in her caregiver paper. Rather than discuss their academic differences, Mr. Flecker refused to meet with her and moved to have the paper and the immigration file taken away from her. This was in contrast with the treatment of Ms. Wiggins when she defended an unpopular research analysis relating to the Charlottetown Accord. The applicant submitted that it was reasonable to infer that the inexplicable differences in her treatment by the respondent were discriminatory.

109The applicant submitted that the phrase "second generation immigrant" is a discriminatory comment. Mr. Jackson knew that she found it offensive and yet he continued to use the phrase. By his use of this phrase, Mr. Jackson meant that he did not consider her to be part of the Canadian community. The applicant testified that this term applies only to children of racialized immigrants.

110The applicant submitted that the racially insensitive comments by Mr. Jackson contributed to the applicant feeling singled out and ridiculed as a racialized woman. She submitted that the use of such racialized characteristics is discriminatory.

111The applicant submitted that after the refusal to let her attend the Brussels meeting in 2007, her relationships with Mr. Yussef and Mr. Flecker were strained. The applicant stated that she felt she was being punished for asserting herself and because she was a racialized woman. She submitted that the attempt to characterize her concerns as rude and aggressive was stereotypical and is often applied to racialized persons (OHRC Policy at page 11).

112The applicant argued that the removal of files was objectively untenable. The applicant expressed special interest in the trade file and she had previous experience in this area. The vague circumstances of the removal of the files raises an inference of discrimination (Wong v. Ottawa Board of Education, 1994 CanLII 18418 (ON HRT), 23 CHRR D/41 (Ont. Bd. Inq.). The applicant submitted that the files were removed without any formal discipline and without the applicant having an opportunity to respond to any concerns raised about her performance. She stated that such subjective explanations and undocumented poor performance should be received with caution by an adjudicator.

113The applicant noted that In determining whether the respondent had a credible and rational reason for removing files from the applicant, the adjudicator can draw an adverse inference from the failure of the respondent to call a witness with knowledge of the reasons (Shah v. George Brown College, 2009 HRTO 920 at para. 14).

114The applicant submitted that there was excessive monitoring of the applicant by Mr. Flecker. His concerns about her part of the budget for the Changing the Canvas project were disproportionate to its value. Preparing budgets was not part of her job description. The applicant submitted that this was a pretext to mask discriminatory treatment.

115In assessing the evidence, the applicant submitted that to the extent of any differences, I should prefer the testimony of the applicant. She stated that she testified in a consistent and straightforward manner. The applicant submitted that in cross examination, Mr. Flecker admitted that he only had one degree and was not a researcher. He then recanted and said he did conduct research. This relates to the credibility and reliability of the witness. The applicant referred me to the criteria in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, and Loomba v. Home Depot Canada, 2010 HRTO 1434 at paras. 14-17. She submitted that some of the factors to consider in assessing credibility are the opportunity and the inclination to tailor and embellish evidence, as well as the internal consistency of the evidence. She submitted that Mr. Flecker's evidence on his research experience was inconsistent and he then took the opportunity to embellish it. She noted that in his examination in chief he gave evidence of his concerns about the failure to include references to union activities with regard to the live-in caregiver program, but admitted in cross examination that these comments were not in his track changes provided to the applicant. His evidence does not corroborate the reasons he has given in his March 31, 2010 memo.

116The applicant submitted that an assessment of the evidence shows that she faced differential treatment, hostility, excessive scrutiny and denigration in the workplace and this cannot be supported by any evidence of poor performance. The applicant submitted that the reactions of supervisors were inappropriate and excessive. The applicant concluded that in considering the totality of the evidence, race and gender were factors in her differential treatment and contravened both the letter and the spirit of the Code.

Submissions of the respondent

117The respondent submitted that the CLC was a workplace quite different than any other. It is an organization made up of hundreds of unions directed by an executive council that instructs the President.

118The respondent submitted that there are no direct or inferred facts supporting any form of discrimination. The respondent submitted that there were no instances of treatment of the applicant that were any different than the treatment of any other employee.

119The respondent noted that the applicant’s terms and conditions of employment were governed by a collective agreement. She was, in the respondent’s view, aware of the provisions of the collective agreement and yet, she made no complaint and filed no grievances with respect to any issues raised in the Application.

120The respondent submitted that the evidence clearly demonstrated that the applicant had significant difficulties in accepting criticism of her work, had a particular problem with submitting financial reports and had interpersonal difficulties with the administrative staff. The respondent submitted that there was no discrimination against the applicant on any prohibited ground.

121The respondent submitted that it was committed to human rights in the workplace. It also submitted that there were numerous racialized employees at the national office in both the administrative and professional bargaining unit.

122The respondent submitted that in order to support a prima facie case of discrimination, the applicant must establish that any differential treatment is related to a prohibited ground of discrimination. The respondent submitted that there is no objective connection between the alleged differential treatment and any of the grounds of discrimination under the Code.

123The respondent submitted that where there is differential treatment alleged, the key in determining whether discrimination has occurred is the appropriate comparator group: Warren Gibson Ltd. v. CHRC, 2004 3 FC 1439. The respondent submitted that in order for the comparator to be valid, there must be sufficient similarity between employment conditions and circumstances so actions can be assessed. The respondent noted that the individuals named in the Application all had management responsibilities over the applicant’s work and their actions were a function of their supervisory role over her work. The respondent submitted that there was no evidence that her workload was determined based on her race or sex or that her work was not published by the CLC because she was a racialized woman. The respondent also submitted that similarly, there is no evidence that the request for a doctor’s certificate was based on discriminatory grounds (Ms. Prebinski testified that other employees were required to provide medical certificates). The respondent also noted the testimony about the respondent’s policy on payment for passports clearly demonstrated that the applicant was not treated differently than any other employee in her position. The respondent stated that the request to check with the health insurer was not unreasonable and the suggestion by the applicant that her supervisor should have checked is telling.

124The respondent submitted that the issue of scrutiny over the budget and receipts on the project was also not discriminatory. The respondent stated that the applicant was not penalized in any way for her failure to follow the administrative procedures. The respondent also noted that she was not being “scrutinized”, she was simply being asked to conform to administrative procedures.

125The respondent submitted that the alleged discriminatory comments of Mr. Jackson were not included in the Application but became part of the applicant’s case just prior to the hearing. The applicant never raised any concerns about the wheat comment or the comment about Mr. Geronimo made by Mr. Jackson. She never asked him to either explain his comments or to apologize for them. The respondent submitted that the debate about the phrase “second generation immigrant” was a debate between academics and a phrase that reasonable people can disagree on. Intellectual or academic debate is not prohibited under the Code.

126The respondent submitted that the removal of the apprenticeship file was due to complaints against the applicant from within the committee and in addition the respondent had hired someone with experience in apprenticeship issues. This does not fall within differential treatment based on a prohibited ground.

127The respondent submitted that Mr. Jackson had a right to monitor the working at home of employees under his supervision. The respondent submitted that there were also cogent reasons for not inviting the applicant to an Executive Council meeting. In addition, the respondent noted that although she complained that a white colleague was asked to make a presentation, she too was invited to make a presentation.

128The respondent submitted that there was no reason for Mr. Flecker to meet with the applicant after March of 2008 – the project was completed.

129The respondent submitted that the denial of an international trip was also not discriminatory. The applicant had been on an international trip the month before.

130The respondent referred me to Herrera v. North American Tool and Die, 2009 HRTO 1777 at para. 10 (“Herrera”), which is similar to this Application. It is important to note that not one witness was called to support the applicant’s experiences, the respondent noted. The respondent also referred me to Fortuno v. Chip Reit #23 Operations, 2009 HRTO 1544 at para. 20 (“Fortuno”).

131The respondent submitted that its actions were not discriminatory. Its actions were either in compliance with normal policy (e.g., passport payment) or related to work performance issues. The respondent submitted that the Code is designed to prevent discrimination, it was not created to provide remedies for perceived slights or fairness issues: Villella v. Brampton (City), 2011 HRTO 1085 at para. 10.

Reply submission of applicant

132The applicant submitted that Herrera has not been cited by subsequent adjudicators as authoritative and is not on point with this Application. The applicant noted that in Herrera the allegations were that the comments were made on a continuous basis. The applicant also noted that Fortuno has not been cited as authoritative by subsequent adjudicators.

133The applicant submitted that she did try to file a grievance, but her union did not support her because it said it was not clear that there was a grievance.

134The applicant submitted that the evidence showed that she was open to constructive criticism and incorporated comments of her supervisor into her work product.

DECISION

135The applicant has alleged that she was discriminated against on the basis of sex, race, colour, ancestry, place of origin and ethnic origin. The applicant has alleged that her treatment by colleagues and supervisors at the CLC was due to discrimination. She also alleges that the alleged discriminatory treatment resulted in her resignation in 2008. The applicant relies mostly on allegations of unconscious discrimination related to the fact that she is a racialized woman.

136In this case, there was no issue that the applicant was a member of a group protected by the Code. As such, the applicant must first establish that she was subjected to adverse treatment. She then bears the burden of proving that discrimination under the Code was a factor in any adverse treatment while employed with the respondent.

137As noted by the Divisional Court in Shaw v. Phipps, 2010 ONSC 3884, aff’d 2012 ONCA 155, (“Shaw”), “many discrimination cases … do not involve direct evidence that a complainant’s colour or race was a factor” in differential treatment (at para. 75). Apart from the allegations of inappropriate comments made by her supervisor, the applicant’s case rests mostly on circumstantial evidence. The Divisional Court in Shaw at para. 76 set out the following principles that apply to applications involving allegations of racial discrimination:

a) The prohibited ground or grounds of discrimination need not be the sole or the major factor leading to the discriminatory conduct; it is sufficient if they are a factor;

(b) There is no need to establish an intention or motivation to discriminate; the focus of the enquiry is the effect of the respondent’s actions on the complainant;

(c) There need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and

(d) Racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices.

As noted by the Divisional Court in Shaw at para. 77, there are no “bright lines” in cases involving circumstantial evidence: the Tribunal “must determine what reasonable inferences can be drawn from proven facts”. The Court of Appeal for Ontario in Shaw at para. 13 endorsed the following statement from the Tribunal decision: “the ultimate issue is whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent”.

138I will first address the direct evidence of the alleged racially insensitive comments made by the applicant’s supervisor. I will then address the allegations relating to differential treatment, hostility and exclusion. I will then address the totality of the proven incidents of differential treatment to determine if an inference can be drawn of discrimination under the Code.

Comments of the applicant’s supervisor

139The alleged comments by Mr. Jackson are the following: the use of the term “second-generation immigrant”; a comment about where wheat is grown; and making fun of a name of another racialized person.

140Mr. Jackson testified that “second-generation immigrant” is a term of art used in academic literature. It is clear that the applicant had a debate or discussion with Mr. Jackson about whether the term was appropriate. However, that debate or discussion is best characterized as a difference of opinion between two academics. There was no evidence that Mr. Jackson, in his discussions with the applicant, made a connection between the use of the phrase and the personal situation of the applicant. In addition, the applicant did not express any concerns about the use of the phrase as it related to her personal situation until the commencement of this hearing. I find that the use of this phrase, in the circumstances, is not discriminatory.

141At an office party, the applicant and Mr. Jackson had a discussion about samosas and how they were made. The applicant alleges that Mr. Jackson asked if they grew wheat in India and Mr. Jackson testified that he thought they were talking about Uganda. I do not need to resolve this difference in recollection. The question, however phrased, does not constitute discrimination under the Code. A lack of knowledge of agricultural practices in another part of the world does not constitute discrimination on the basis of race or ethnic origin. Nor, in the context of the facts before me, is there any basis on which I can draw any inference that the question was discriminatory.

142The applicant alleges that Mr. Jackson made fun of, or questioned, the first name of Mr. Geronimo. Mr. Jackson denies that he made any such comment. In assessing credibility, the familiar test set out in Faryna v. Chorney, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, provides useful guidance: are the alleged facts in “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions.” Mr. Jackson testified that he knew Mr. Geronimo and had worked with him. The name was therefore familiar to him and there was no apparent reason or context provided by the applicant for why Mr. Jackson would question or belittle Mr. Geronimo’s name in light of an ongoing working relationship of some duration. I find, on a balance of probabilities, that he did not make a comment about Mr. Geronimo’s name.

Differential Treatment, Hostility and Exclusion Allegations

143In this section I address the remaining allegations of the applicant: the assignment and removal of files, differential treatment and the allegations of hostility and exclusion.

144In Shaw, the Court of Appeal for Ontario, quoting the Tribunal decision, noted at para. 34 that racial stereotyping “will often stem from unconscious biases or beliefs”. In Sinclair v. London (City), 2008 HRTO 48 at para. 53, the Tribunal noted that racial discrimination is often subtle and “can manifest itself through over reactions or a differential response when a racialized person is involved in activities that pose challenges for those in authority”.

145However, as noted by the Divisional Court in Shaw at para. 81, it is not sufficient for the Tribunal to rely solely upon the applicant’s belief: “the Tribunal cannot make a finding of discrimination based on the concept of “unconscious discrimination” without supporting evidence”. The Court of Appeal for Ontario in Shaw at paras. 35 - 36 agreed with this approach. The applicant must prove, on a balance of probabilities, that one of the factors in the incidents of adverse treatment was a prohibited ground of discrimination.

146The applicant provided numerous instances of perceived differential treatment. She called one witness who testified about her treatment related to research analysis with regards to the Charlottetown Accord. The Charlottetown Accord debates occurred in the early 1990s, long before the applicant commenced her employment at the CLC. The applicant called no witnesses who could provide evidence of differential treatment during the relevant time to support her allegations. I find the evidence of different treatment in the 1990s to not be relevant to the Application and I have given that evidence no weight.

147The applicant has not demonstrated, on a balance of probabilities, that her sex, race, colour, ancestry, place of origin or ethnic origin were factors in her treatment by the respondent. The Tribunal cannot address allegations of unfairness unless that unfairness is linked to a prohibited ground of discrimination under the Code.

148The applicant has not proven, on a balance of probabilities, that her workload was heavier or more challenging than her colleagues’. She also has not proven either through direct evidence or evidence from which I can draw an inference from, that the removal of two of her files was, in whole or in part, because of a prohibited ground of discrimination. An employer has the right to reassign work, as long as discrimination on a prohibited ground is not a factor in that decision. In this case, discrimination on a prohibited ground was not a factor in the respondent’s decision to remove the files.

149I find that there was no discriminatory element to the decisions of the employer to: ask for a medical certificate; not pay for the applicant’s passport replacement; scrutiny on working at home; the treatment of lieu time; the request to contact the insurer about payment for immunizations; exclusion from Executive Council meetings; and scrutiny over expenses.

150Although it was not a common occurrence to request a medical certificate for lengthy absences from work, there was no policy or rule preventing the respondent from asking for a medical certificate. The applicant provided no evidence to show that she was treated differently than anyone else who had a lengthy illness. More importantly, she has not proven, on a balance of probabilities, that the request for the medical certificate was based on a prohibited ground of discrimination.

151The evidence showed that it was only employees in the International department of the CLC that had their passports paid for. Mr. Jackson testified that he did not have his passport costs paid for by the employer. Consequently, the decision not to pay the replacement costs for the applicant’s passport was made according to a neutral policy that applied to all employees in the applicant’s situation. There was no evidence that the policy was applied in a discriminatory manner.

152The applicant did not establish that she was treated differently than her colleagues with regards to working at home. At the time of his reminder to the applicant on the rules for working at home he clearly stated that he was not singling her out and she replied that she did not feel that she was being singled out. Similarly, the applicant did not establish that she was being treated differently than others with regard to the use of lieu time.

153The applicant has also not established that the repeated request of Mr. Jackson to check on whether the health insurer covered immunization costs was based on any discriminatory grounds.

154The applicant alleged that not being selected for an international conference was also discriminatory. First, it should be noted that the applicant did attend an international conference on behalf of the CLC. The applicant did not establish that the decision on a different occasion to send Mr. Flecker to an international conference over her was based on any discriminatory ground.

155The applicant also alleged that her exclusion from Executive Council meetings was discriminatory. The Executive Council meetings were generally not attended by CLC staff members. The applicant did attend one meeting as an observer and was invited to make a presentation at another meeting. She has not established that the selection of a colleague to make a presentation was based on any factors prohibited under the Code.

156The applicant alleges that she was subjected to excessive scrutiny over expenses for the Changing the Canvas project. It appears that the applicant, inadvertently, did not follow the proper procedures for expenses. I can see no discrimination in the application of the respondent’s policy. The applicant provided no evidence of differential treatment with regards to reporting requirements for expenses.

157The applicant alleged that her exclusion from writing a chapter in a book being edited by a colleague was discriminatory. The applicant was invited to contribute to the book, although she was not satisfied with her limited role. Her main dispute appears to be that she should have written the chapter on immigration rather than Mr. Flecker. I have addressed the relationship with Mr. Flecker below. She has not demonstrated through evidence that the decisions on who would contribute to the book and the nature of the contribution was linked to her sex, race, colour, ancestry, place of origin or ethnic origin.

158The applicant also alleged that Mr. Jackson’s failure to take her side in a dispute with an administrative assistant was discriminatory. Mr. Jackson admitted that he could have handled the situation better, but I can find nothing discriminatory in his role.

159The events that had the most direct impact on the decision of the applicant to resign from the CLC were those relating to her interactions with Mr. Flecker. Mr. Flecker was a director and had responsibility for a project that the applicant was assigned to do some work for. Although Mr. Flecker was not her direct supervisor, he had a functional supervisory role over the applicant. The applicant took pride in her work and did not appreciate Mr. Flecker’s changes or approach to the research. She clearly did not consider Mr. Flecker to be her intellectual equal. However, he was supervising her work and had the supervisory authority to do so. The applicant did not demonstrate that her sex, race, colour, ancestry, place of origin or ethnic origin was a factor in Mr. Flecker’s interactions with her.

160The applicant has also alleged that concerns about her job performance were never brought to her attention and she was not given an opportunity to address those concerns. Mr. Jackson did provide some feedback to the applicant about her performance, although some of the concerns about her performance were not raised until she filed this Application. However, it is important to note that it was the applicant who resigned her position with the respondent. In any event, the applicant has not proven, on a balance of probabilities, that the failure to raise performance concerns was based, in whole or in part, on a prohibited ground of discrimination.

Totality of proven incidents of differential treatment

161I find that in considering all the evidence of adverse treatment that the applicant has not established a prima facie case of discrimination. Her belief that race and gender were unconsciously motivating the respondent’s treatment of her is not supported by any evidence. The applicant has not shown that an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondents for her treatment.

162I find that the applicant has not met her burden of proving a prima facie case of discrimination, in that she has not demonstrated that a prohibited ground of discrimination was a factor in her treatment by the respondent.

163In conclusion, the applicant has not established that the respondent breached the Code and the Application is dismissed.