HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Toronto Community & Culture Centre
Applicant
-and-
Her Majesty the Queen in Right of Ontario as Represented by the Minister of Citizenship and Immigration, Jenny Vane, Luby Carr and Katherine Hewson
Respondents
DECISION
Adjudicator: Brian Sheehan
Indexed as: Toronto Community & Culture Centre v. Ontario (Citizenship)
APPEARANCES
Toronto Community & Culture Centre, Applicant
Davies Bagambiire, Counsel
Her Majesty the Queen in Right of Ontario as Represented by the Minister of Citizenship and Immigration, Jenny Vane, Luby Carr and Katherine Hewson, Respondents
Anita Lyon and Kristin Smith, Counsel
Introduction
1This Application was filed on May 22, 2009 under section 53(5) of the Human Rights Code, R.S.O. 1990 c.H.19, as amended (the “Code”).
2The applicant organization alleges that it was subject to discrimination by the respondents with respect to services on the basis of ethnic origin and place of origin contrary to sections 1 and 9 of the Code.
3The applicant is an incorporated not-for-profit organization whose mandate, amongst other things, is to provide immigrant services to newcomers to Canada from Mainland China. Simon Zhong was the Executive Director of the applicant organization when the facts associated with this matter arose.
4The corporate respondent, Ministry of Citizenship and Immigration (the “Ministry”), is responsible for providing services that meet the needs of newcomers to Canada. The individual respondent Jenny Vane was a Program Consultant for the Ministry’s Newcomer Settlement Program (the “NSP”). The individual respondent Luby Carr was Manager of the Ministry’s Settlement Unit (the “Settlement Unit”). The last individual respondent, Katherine Hewson, was Director of the Ministry’s Citizenship Development Branch.
5The Ministry operated and funded the Voluntary @ction Online Program (the “Program”). The purpose of the Program was to provide funding to assist community service agencies in building websites that would provide volunteer, service and community specific information.
6The Ministry also funded and operated the NSP. The purpose of the NSP was to provide grant funding to community based agencies to deliver settlement services to immigrants, refugees and refugee claimants across Ontario. NSP funding was at the discretion of the Ministry and covered a 12 month period with service agencies submitting applications for funding annually. Funding was granted to those agencies that, in the view of the Ministry, met the criteria of the program. Entitlement to funding for one year did not guarantee funding for future years.
The Interim Decision
7In Interim Decision, 2010 HRTO 2139, dated November 24, 2010, the Tribunal addressed the respondents’ request to dismiss the Application as an abuse of process and for delay.
8The Tribunal rejected the abuse of process argument of the respondents. With respect to the delay issue, the Tribunal ruled that certain aspects of the applicant’s Complaint, which formed the subject matter of the Application, were time-barred. Specifically, the Tribunal ruled that the applicant could not proceed with allegations related to a reduction in NSP funding for the 2000/2001 year, and the decision of the Ministry not to grant the applicant funding under the Voluntary @ction Online Program offered by the Ministry.
9At paragarphs 49-51 of the Interim Decision, the Tribunal, on its own initiative, sought to define the nature of the issues that should be dealt with by the parties. Specifically, the Tribunal noted:
The focus of this proceeding should be narrow. The only relevant issue for this Tribunal is whether the applicant suffered differential treatment regarding NSP funding decisions on account of its ethnic origin or place of origin. Any evidence led by the parties should be directly relevant to that specific issue.
Further to the above, the overall appropriateness of the Ministry’s decision that the settlement needs of newcomers from Mainland China could be served by other agencies other than the applicant is not an issue that needs to be resolved by this Tribunal. Accordingly, assertions that the Ministry did not “fully grasp that the dynamic between Cantonese and Mandarin communities and the ability of members of one community to properly assess services provided by the other”; or that the applicant was “uniquely situated to provide services to a distinct faction of the Mandarin speaking community”; or that the decision to deny funding to the applicant had a sweeping impact on the “members it serves”, are not matters that the Tribunal needs to hear evidence about.
A review of the pleadings suggests that the only fact(s) cited by the applicant connecting the decision to deny it NSP funding for the years in question and the cited prohibited grounds is the allegation that Ms. Vane, being an immigrant from Hong Kong and a former employee of the Chinese Interagency Network, was biased against the applicant because it was an organization founded and operated by individuals from Mainland China. The focus of the hearing, therefore, should be the extent and nature of the involvement of Ms. Vane, if any, in the decision-making pertaining to the applicant’s requests for NSP funding for the 2002/2003 and 2003/2004 years.
Factual Background
The Newcomer Settlement Program – Purpose and Criteria
10The NSP Funding Guidelines identified the purpose of the Program as follows:
The Newcomer Settlement Program (NSP) supports the early and effective settlement of newcomers in Ontario. Its objective is to help settle, adjust and contribute to life in Ontario. To achieve this objective, the Newcomer Settlement Program:
supports the delivery of settlement services for newcomers
supports the ability of the settlement sector to deliver effective services and respond to changing needs
promotes the participation of volunteers in the delivery of settlement services.
NSP encourages partnerships and collaboration among service providers to meet the needs of immigrant communities. NSP funding supports eligible organizations for up to a 12 month period for projects and services that meet the NSP guidelines. Funding applications are reviewed annually.
11The priority of the NSP funding was to provide support services to newcomers who had been in Canada for less than five years. There were two types of eligible services under the program: (1) direct settlement services and (2) sectoral support services. The applicant’s funding requests for the relevant years, of 2002/2003 and 2003/2004, were solely related to providing direct settlement services.
12There were two eligible service categories with respect to direct settlement services; (1) core services and (b) facilitating finding employment services. Core services were a mandatory component for all NSP funding applications; while facilitating finding employment services were an optional component.
13The NSP Funding Guidelines identified core services as follows;
Assessment
Identify newcomers’ settlement needs and determine an appropriate response and/or referral.
Referral
Link newcomers with community resources, services, ESL classes or training programs
Information and Orientation
Provide guidance and advice that helps newcomers get established in their new community. This includes topics such as essential documents, housing, education, employment, health, transportation and legal services.
General Settlement Assistance
Provide assistance to help newcomers settle in Ontario. Some examples are:
filling out forms essential for settlement, e.g. application for housing, health card
arranging for appointments, obtaining necessary information or resolving problems related to settlement.
14The NSP Funding Guidelines identified facilitate finding employment services as follows:
This service provides more in-depth assistance than the employment relation and referral that is part of the core services. Examples of eligible activities under this service are:
provide job counselling; identify clients’ needs and determine ways to address these needs; help clients linkup with training programs and obtain trade/professional certification and recognition of academic credentials
organize job finding clubs and workshops on job search strategies, networking, interview skills and write resumes preparation; help clients fill out job application forms and identify employment skills
make available or lend resources that assist job finding, e.g. make a computer available for clients to prepare resumes
The Newcomer Settlement Program – The Funding Review Process
15NSP funding took place on an annualized basis; with the funding year covering the period from April 1 to March 31. Agencies interested in seeking NSP funding were obligated to submit an application by mid-February. If an agency was deemed eligible for funding, it would be required to sign a service contract with the Ministry setting out a description of the services to be provided, a budget breakdown and potentially other terms and conditions. If funding was granted for the full year, the funds were forwarded to the agency in two stages. With the second stage of funding conditional upon the agency completing a mid-year report which the Program Consultant viewed as confirming that the agency was abiding by the terms of the service contract.
16In the relevant years, the Ministry received more requests for funding than it was able to provide. For the funding year 2002/ 2003, 85 agencies received funding; with those agencies receiving $3,882,907 of the $5,009,564 in funding requested. For funding year 2003/ 2004, 84 agencies received funding; with those agencies receiving $3,865,040 of the $4,838,949 in funding.
17An application for funding would first be reviewed by the Program Consultant, assigned by the Unit Manager, to be responsible for that particular agency. The Program Consultant would assess the NSP application and make a funding recommendation. That funding recommendation would be discussed at group meetings where the Program Consultants and the Unit Manager would review the various funding recommendations for the agencies seeking funding. In assessing a particular funding request, consideration was given to the following factors (1) the demonstrated settlement needs; (2) the applicant’s ability to respond effectively to the identified needs and priorities; (3) the geographic area served by the agency; (4) the existence of other organizations that serve or could serve the same client groups; (5) the extent of the agency’s community partnerships and volunteer participation; (6) the past performance of the agency in delivering settlement services; and (7) the Newcomer Settlement Program budget.
18The recommendations of the Unit Manager and Program Consultants were based on consensus. If there was a recommendation for funding for a particular agency, the Program Consultant responsible for the agency would be responsible for completing a Grant Summary Form setting out the recommended funding amount. Those Grant Summary Forms, as well as a Grant Recommendation Spreadsheet setting out the amount requested and amount recommended to be granted for each agency which applied for NSP funding, was forwarded to Ms. Hewson for her review. The recommendations would then be reviewed, by the Assistant Deputy Minister and ultimately by the Minister. Ms. Hewson, the ADM and the Minister had the authority to request further information, and change the funding recommendation related to any particular agency. Ultimately, the discretion to approve the funding recommendation rested with the Minister.
NSP Funding Granted to the Applicant
19The applicant first applied for NSP funding for the1997/1998 funding year. At that time, the NSP program was administered by a regional office, with funding recommendations handled by Regional Service Consultants. Mr. Wei Fu, a Regional Service Consultant with the Toronto Regional Services Office, was assigned to review the applications for NSP funding from the applicant.
20Mr. Fu testified that he met Mr. Zhong and encouraged him to set up an organization such as the applicant because they were both aware of the pressing settlement needs of the immigrants from Mainland China. Mr. Fu subsequently reviewed the applications for NSP funding submitted by the applicant, and from his viewpoint there was no dispute that the applicant was doing more than an adequate job in providing a much needed service to a growing community with significant settlement needs.
21In 1997/1998, pursuant to the recommendation of Mr. Fu, the applicant received NSP funding in the amount of $17,000. For the funding year of 1998/1999 NSP funding received by the applicant was increased to $33,500. In the documentation supporting his funding recommendation, Mr. Fu observed “The Centre delivers much needed settlement services in the GTA to a growing immigrant community. It has a good track record in service delivery”. For the following 1999/2000 funding year, the applicant again received $33,500 in NSP funding. In the supporting documentation for that recommendation, Mr. Fu this time characterized the applicant’s track record of service delivery as “excellent”.
22In 2000, the Toronto Regional Services Office was closed as a result of a restructuring, and the responsibility for the NSP program was transferred to the Ministry’s Central Office. The evidence of Ms. Hewson and Ms. Carr suggested there was a shift in emphasis, from assisting in the development of agencies to provide settlement services, to the purchase of settlement services for newcomers.
23As of 2000, Ms. Vane was the assigned Program Consultant with respect to the applicant’s applications for NSP funding. For the funding year of 2000/2001, the applicant’s funding was reduced to $31,200. In the Grant Summary Form completed in the early part of 2000, Ms. Vane, under the heading Current Issues indicated “none currently”.
24Ms. Vane’s assessment of the applicant as an appropriate agency to provide NSP services soon became much more critical in nature. In an Application Assessment Worksheet, completed in February 2001, Ms. Vane rated the applicant low in a host of areas. Among the concerns, or shortcomings, identified by Ms. Vane were (1) that the agency has no other sources for funding for providing settlement services. Specifically, it was noted that the applicant was not receiving funding from the federal government through the Immigration Settlement and Adaption Program (ISAP). This was significant as NSP funding was viewed by the Settlement Unit as supplemental to funding that an agency would receive from the primary funder for settlement services, the federal government; (2) the applicant had no partners in place for supplying the settlement services; (3) that the applicant only had staffing equal to one and one-half Full-Time Equivalents (FTEs); and (4) that the applicant’s financial picture was in question as it was suggested that there was a deficiency of revenue compared to expenditures and there was no plan in place to generate additional revenues through donations or sponsors.
25For the 2001/2002 period, the applicant’s funding was reduced to $23,674.00. In the Grant Summary Form completed for that year under the heading Current Issues Ms. Vane noted:
Five community agencies in the neighborhood of TCCC are providing services to newcomers. Three of these agencies are receiving clients mainly from China, Hong Kong and Taiwan and have staff from the same ethnic and cultural background. All these agencies have a spectrum of services that will facilitate effective settlement of newcomers. NSP funding for TCCC is reduced due to readjustment of service priorities, and efforts to minimize service duplication. There are no other services within this organization for newcomers to access, and collaboration with other Chinese agencies is not happening. With reduced support from NSP in 2001, TCCC’s services for newcomers will be more strategic and its role in providing information referrals to newcomers will continue.
26By a letter dated July 22, 2001, Mr. Zhong, wrote to the then Minister of Citizenship complaining about the reduction in NSP funding that the applicant had experienced in the last two funding years. Mr. Zhong suggested that the reduction in funding was attributable to the fact that Ms. Vane didn’t have “experience and knowledge on serving Mandarin speaking newcomers” and that “she didn’t care and sympathize with new immigrants from Mainland China”. Specifically, Mr. Zhong asserted that Ms. Vane, as a person from Hong Kong, didn’t “understand the situation and culture, social background of immigrants from Mainland China.”
27Ms. Carr, in a letter dated August 15, 2001 responded to Mr. Zhong’s letter, providing a detailed outline of the deficiencies of the applicant in terms of satisfying the eligibility criteria for NSP funding. On December 13, 2001, Ms. Carr wrote to Ms. Katy (SL) Liu, Chairperson of the Board of Directors for the applicant, advising that the Ministry had ongoing concerns regarding the eligibility of the applicant to receive further NSP funding for the 2002/2003 year.
28As a result of Mr. Zhong’s complaints that Ms. Vane was biased toward the applicant, Ms. Carr decided to assign Ms. Janina Olechna to be the Program Consultant to review the applicant’s 2002/2003 funding application. In assessing the application against the eligibility criteria, Ms. Olechna assigned a low rating to the application regarding the following criteria: financial accountability; effective management program planning and delivery; accessible services for immigrants and refugees; and performance record.
29Ms. Olechna recommended that the applicant receive funding in the amount of $11,837.00 for only six months from April 1, 2002 to September 30, 2002. That funding was viewed as transitional in nature, providing short term funding to the applicant so that, in the future, it could seek alternative funding arrangements. The proposed funding for the applicant for 2002/2003 recommended by Ms. Olechna was ultimately approved by the Minister.
30Ms. Olechna could not specifically recall any specific discussion amongst the other Program Consultants regarding the applicant’s application, including any discussion with Ms. Vane as part of the group review of the NSP applications.
31The applicant was not the only agency that received only six months of NSP funding for the 2002/2003 funding year. One agency received no funding and five other agencies were only funded for six months.
32Since the applicant’s NSP funding had been discontinued as of September 2002, the Ministry did not forward to the applicant, an NSP application for the 2003/2004 funding year. Subsequently, various correspondence was exchanged between the parties, and meetings held, between representatives of the applicant, and the Ministry regarding the decision to terminate NSP funding for the applicant. As a result of those meetings, the applicant was sent, on September 12, 2003, directly from Ms. Hewson, an application form for NSP funding for 2003/2004.
33Ms. Hewson reviewed that application with the assistance of her staff and it was determined that the applicant had not addressed any of the concerns of the Ministry with respect to its satisfying the required eligibility criteria. Specifically, by a letter dated February 11, 2004, Ms. Hewson advised Mr. Zhong:
I am writing to you to inform you that the Ministry has now completed its review of your application for funding under the Newcomer Settlement Program (NSP) for 2003-04. The Ministry has concluded that the Toronto Community and Culture Centre is still not eligible under the NSP criteria. Your application does not indicate changes in your organization’s financial status, program planning and evaluation procedures, and partnership initiatives. The grant requirements and areas of concern are the same as those we communicated to you in 2003.
The Position of the Applicant
34The applicant asserted that Ms. Vane was in a conflict of interest position in the role of assessing the applicant’s applications for NSP funding. In particular, it was suggested that the conflict of interest arose since, prior to her joining the Ministry, Ms. Vane had been the Programme Director for the Centre for Information and Community Services, which the applicant asserted was in direct competition with the applicant for both clients and for NSP funding.
35Regarding the NSP funding application process, it was asserted that, contrary to the suggestion of the Ministry, Ms. Vane continued to be significantly involved with issues associated with the applicant, and the NSP funding applications pertaining to the applicant, long after she ceased to be formally the Program Consultant for the applicant. Reference was made to the fact that Ms. Vane attended the Settlement Unit’s group meetings to review the 2002/2003 NSP applications for funding, which included reviewing the applicant’s application for funding. Reliance was also placed on the fact that Ms. Carr continued to rely on Ms. Vane to be the contact person with the Chinese Interagency Network (which was a network of 34 social and health service agencies serving the needs of the Canadian Chinese community) with respect to certain issues that had been raised by the applicant. Finally, it was noted that Ms. Carr requested Ms. Vane to review, and draft documents pertaining to the applicant even though she was no longer formally the Program Consultant for the applicant.
36The applicant also suggested the reduction in NSP funding experienced by the applicant was a direct reprisal for Mr. Zhong and the applicant having the temerity to criticize the Ministry, and to do so publicly. Reference was made to the reaction of Ms. Vane, and the Settlement Unit as a whole, to the October 2, 2001 interview of Mr. Zhong published in the Sing Tao Daily. In that interview, Mr. Zhong pointedly criticized the government of Ontario for failing to provide, in his view, sufficient settlement services for immigrants from Mainland China.
37The applicant asserted that, immediately after that interview, Ms. Vane embarked on a campaign to discredit the applicant. Specific reference was made to an October 5, 2001 e-mail from Ms. Vane to Ms. Carr concerning the Sing Tao Daily interview. It was submitted that the e-mail displayed contempt, and a racist mindset towards Mr. Zhong and the applicant. The particular portion of the e-mail relied upon by the applicant is as follows:
I’ve been contacted by various Chinese organizations after the article was released and was told they would be meeting to discuss strategies on how to respond. Simon’s group certainly does not represent the community. If the Chinese agencies are going to respond, it will be through the Chinese Interagency network, the umbrella group in which most Chinese agencies are members.
The agencies will keep me posted and send me drafts of their response. Meanwhile, in their midyear NSP report, I’ll ask them to report on the #clients from mainland China and the #of staff who speak Mandarin, and comment on how they’re providing services to specifically immigrants from mainland China.
Have a good weekend, Luby, and let’s not waste our energy on this guy/group!!
(emphasis added)
38The applicant further submitted that Ms. Vane’s superiors, Ms. Carr and Ms. Hewson, condoned the derogatory and dismissive language used by Ms. Vane towards Mr. Zhong, by not only failing to take any corrective action toward Ms. Vane, but also by allowing her to participate in meetings related to the applicant. Moreover, it was suggested that Ms. Carr’s actions went beyond condonation to actually adopting a contemptuous attitude towards the applicant and Mr. Zhong.
39From the applicant’s perspective, the fact that the respondents’ decision-making was improperly influenced by Ms. Vane’s tainted viewpoint was borne out by the fact that, prior to Ms. Vane’s involvement; the Ministry generally had a favourable impression of the applicant. In particular, it was asserted the evidence of Mr. Wei Fu suggested that, not only had the applicant done a more than adequate job in providing a much needed service to a growing community, with a large number of newcomers, but its track record of service delivery was excellent. It was noted that under Mr. Fu’s guidance, the applicant’s NSP funding increased from $17,000 to $33,500.
40It was suggested that, as opposed to the perfunctory nature of Ms. Vane’s and Ms. Olechna’s interaction with the applicant, Mr. Fu displayed a more thorough and “hands on” approach to reviewing the services performed by the applicant. The fact that Mr. Fu attended the office of the applicant, on numerous occasions, was contrasted with the fact that Ms. Olechna did not attend the applicant’s office as part of the 2002/03 funding review process. It was also noted that Mr. Fu fundamentally disagreed with Ms. Vane’s characterization of the applicant’s office as being located in an apartment.
Decision
41Upon reviewing the evidence presented, the submissions of the parties, and the authorities relied upon, it is determined there does not exist any basis for a finding that the respondents violated the Code.
Analysis and Discussion
42It is accepted, as outlined by Mr. Bagambiire, on behalf of the applicant, the determination as to whether the respondents violated the Code has to be analyzed through the prism of the burden of proof that human rights adjudicative bodies have traditionally applied in discrimination cases. In Israeli v. Canadian Human Rights Commission (1993) 1983 CanLII 4687 (CHRT), 4 CH.R.R D/1616 (C.H.R.T.), the Canadian Human Rights Tribunal, outlined the applicable shift in the burden of proof:
The burden of proof in discrimination cases is important, as is the order of the presentation of evidence…. The complainant must first establish a prima facie case of discrimination. Once this is done, the burden of proof shifts to the employer to provide a reasonable explanation for the otherwise discriminatory behavior. Finally, the burden shifts back to the complainant to prove that this explanation was merely a “pretext” and that the true motivation behind the employer’s actions was in fact discriminatory.
43Even though the Israeli v. Canadian Human Rights Commission, above, case involved a claim of discrimination in an employment context, the above analysis regarding the shift in the burden of proof associated with a claim of discriminatory behaviour is applicable to the Tribunal’s analysis in the case at hand.
44Notwithstanding the extensive evidence submitted, the only ostensible connection between the decision-making of the respondents and the cited prohibited grounds remains the assertion that Ms. Vane, as an immigrant from Hong Kong, was biased against the applicant since it was an organization founded and operated by individuals from Mainland China. With that being the only basis for the claim of discrimination, there existed a legitimate question whether in fact the applicant satisfied the burden of establishing a prima facia claim of discrimination.
45Moving beyond the question of whether a prima facia case has been established by the applicant, to the evaluation of the rationale offered by the respondents in support of the decisions to reduce and ultimately discontinue NSP funding to the applicant, it is important to keep in mind, the nature of the decision-making involved by the respondents. The NSP program involved discretionary funding by the Ministry to various agencies throughout Ontario for the purpose of assisting recent immigrants to be settled in the province. Each year, applications were submitted by a host of agencies seeking funding against a backdrop of a finite amount of available funds for the program.
46The Settlement Unit had developed a fairly elaborate and extensive process for evaluating the annual applications for NSP funding. Specifically through Funding Guidelines, Application Forms, Assessment Forms, and Grant Summary Forms, the Settlement Unit sought to ensure that consistency and transparency were applied to the NSP application review process. That review process involved each application being fully vetted, by the assigned Program Consultant, and by the Settlement Unit as a whole, as part of the effort to ensure that the appropriate agencies received NSP funding.
47I find that the evidence unequivocally establishes that the Settlement Unit conducted a thorough and fair process, regarding the evaluation of whether it was appropriate to recommend the granting of funding to a particular agency, and the amount of funding to be granted. Moreover, the respondents consistently followed that assessment process regarding the various applications for NSP funding submitted by the applicant.
48Turning to the specifics of the applicant’s request for NSP funding for the 2002/2003 funding year, the applicant had been previously apprised of concerns that the Settlement Unit had, though the representations of Ms. Carr, of its suitability for continued NSP funding. In particular, in her December 13, 2001 letter to Ms. Katy (SL) Liu, Chairperson of the Board of Directors for the applicant, Ms. Carr indicated that it was unlikely that the applicant would receive NSP funding for the 2002/2003 year:
Our review confirms that in the Toronto area, there are at least six multi-service organizations providing services to predominantly Chinese speaking newcomers from Mainland China, Taiwan and Hong Kong. More than 70% of the clients served by these agencies in the past 11 months were from Mainland China, and 90% of settlement staff speak either Mandarin or both Mandarin and Cantonese. All these agencies are multi-funded to provide a variety of services to newcomers and the community. They also have extensive community partnerships and strategies that respond effectively to the needs of immigrant communities.
Your organization falls short of the prerequisites of NSP, and since there is adequate coverage of your community in Toronto, it is likely your services will not be funded by our ministry in the 2002/2003 operating year. The priority of NSP is to fund services provided by multi-service organizations that have ongoing partnerships and support from other settlement programs.
49The evidence confirms that Ms. Olechna completed a detailed review of the applicant’s application for NSP funding for the 2002/ 2003 year. In thoroughly assessing that application, Ms. Olechna offered, in the Application Assessment Worksheet, the following critical assessment of the applicant’s eligibility in terms of the specified criteria for funding:
Evidence of other funding for settlement services - TCCC does not have other financial support and resources for the core settlement programs. TCCC does not have ISAP or LINC program. NSP is the agency’s only core program for newcomers.
Office accessibility - TCCC office is located in the apartment building where an access code is required to enter.
Revenue generating plan - Lack of an active plan to generate non-government revenues.
Organizational infrastructure - TCCC does not have a solid infrastructure – 1.5 full time equivalent positions is not sufficient to support program development and delivery.
Program planning, delivery and evaluation - No record of continuity of assessment and/or community consultation activities by TCCC. No well-defined process to develop, implement and evaluate services. No record of staff or volunteers participating in any professional development training in the past year.
Programs /services for newcomers - TCCC does not provide language training or have other support services to facilitate settlement of newcomers. TCCC does not have a broad scope of settlement services. TCCC other services are not settlement focused, and TCCC’s counselling, youth placements, youth summer employment and internship programs are not NSP eligible.
Partnerships and collaboration - TCCC does not have a record of established working relation with other settlement agencies, or collaboration with the community to improve its settlement services, and provide strategic support to newcomers.
50With specific reference to the issue of other sources of funding, Ms. Olechna testified that some of the information set out in the application was, in her view, not accurate. In particular, the applicant cited that it had received funding from the Ontario Trillium Foundation for 2001/2002 and was projected to receive funding for 2002/2003. Ms. Olechna’s investigation into that matter, however, revealed that funding was a one-time allotment, which the applicant had received in 1999.
51A particular point of contention for the applicant was Ms. Olechna’s characterization of the applicant’s office as an apartment setting. It was suggested Ms. Olechna had simply relied on, in the applicant’s view, Ms. Vane’s erroneous viewpoint, that the applicant’s office was in an apartment setting; and that it was incumbent upon Ms. Olechna to personally attend the applicant’s office to make her own determination about the adequacy of that office space. There was some validity to the suggestion that Ms. Olechna should have attended the applicant’s office as part of her review of the applicant’s 2002/2003 application for funding. That being said, whether or not the characterization of the applicant’s office as being in an apartment setting was appropriate, was a minor point in terms of the overall failure of the applicant to satisfy the NSP eligibility criteria.
52Further to the above, the relevant framework of analysis for this Tribunal is not whether certain aspects of the decision-making process of the respondents should have been different, or were open to criticism. The issue is whether the evidence offered suggests that there was a reasonable basis to support the decision-making undertaken by the respondents to reduce and ultimately eliminate NSP funding to the applicant thereby rebutting the suggestion that those decisions must have been improperly influenced by the prohibited grounds alleged.
53I find that the evidence as a whole, confirms that the Settlement Unit, and the individual respondents, assessed the applicant’s application for NSP funding for the relevant years, in a thorough and objective manner, and that the conclusion reached that the applicant failed to satisfy the mandated eligibility criteria for NSP funding was more than reasonable. Moreover, the evidence clearly established that the decision-making was not, in any way, tainted by the prohibited grounds alleged.
54In reaching this conclusion, consideration was given to the different perspective of the capabilities of the applicant offered by Mr. Fu. The evidence of Mr. Fu was both helpful and credible. It is accepted that he did not share the subsequent concerns raised by Ms. Carr, Ms. Vane, and Ms. Olechna regarding the purported inadequacies of the applicant to adequately provide the settlement services required under the NSP program. It would also be fair to say that Mr. Fu clearly had a far more active and involved relationship with the applicant. Mr. Fu’s evidence, however, at the end of the day, is of limited relevance to the issues in dispute before this Tribunal. The evidence suggests that, with the transfer of the responsibility for assessing NSP applications from the Ministry’s Toronto Regional Services Office to the Ministry’s Central Office, the focus of evaluating an organization seeking NSP agency funding was transformed. Mr. Fu, as a Regional Services Consultant, perceived his role as one of nurturing and supporting the ability of the applicant to provide needed settlement services for newcomers from Mainland China. Program Consultants, such as Ms. Vane and Ms. Olechna, on the other hand, viewed their role in terms of assessing whether the applicant, as opposed to other agencies, was ideally suited to provide the required settlement services to satisfy the needs of the newcomers from Mainland China. As Ms. Hewson testified, the focus of the Ministry evolved to ensuring that the “best bang for the buck” was achieved through NSP funding in terms of meeting the settlement needs of a particular community of newcomers.
55An example of the Ministry’s changed perspective as to how it viewed its relationship with the agencies seeking NSP funding, was evident with respect to the issue of the applicant possibly entering into a partnership with another NSP agency in order to make it a more attractive candidate for NSP funding. Mr. Zhong, on behalf of the applicant, on a number of occasions, sought the assistance of the Ministry regarding the development of such a partnership. While some assistance was forthcoming, the Ministry ultimately did not view the providing of such assistance as part of its mandate, as it was the responsibility of an agency itself to foster a partnership with another NSP funded agency.
56It is also noteworthy that the applicant did not stand alone in being adversely impacted by the Ministry’s decisions regarding NSP funding for the 2002/2003 year. Similar to the applicant, five other organizations also received funding for only six months for the 2002/2003 year; while one organization was denied funding completely.
57As to the applicant’s suggestion that Ms. Vane remained involved in the review of the applicant’s 2002/2003 application, aside from being part of the Settlement Unit’s meetings, where the Program Consultants, as a group, reviewed the competing applications for NSP funding, the evidence suggests that Ms. Vane did not have any direct involvement in the review of the applicant’s 2002/2003 application for funding. The only other involvement that she had, with respect to an issue pertaining to the applicant, was that she assisted Ms. Carr in preparing documentation that was to be forwarded to those agencies, including the applicant, that were granted only six months of funding for the 2002/2003 year. Additionally, in anticipation of the Ministry being criticized for providing the applicant only six months of funding, Ms. Vane did contact representatives of the Chinese Interagency Network regarding the issue of the provision of settlement services being provided to newcomers from Mainland China.
58Moreover, this issue of whether Ms. Vane, subsequent to her role as the assigned Program Consultant, remained actively involved in the review process regarding the applicant’s applications for funding was, at the end of the day, a non-issue for the purposes of this proceeding. There was no foundation in the evidence to suggest that Ms. Vane, when she was the applicant’s assigned Program Consultant, demonstrated a bias against the applicant, or that her decision-making was in any way tainted, on account of the prohibited grounds alleged.
59With respect to the decision of the Ministry to deny the applicant NSP funding for the 2003/2004 funding year, the evidence establishes that the applicant’s application for funding for that year was almost identical to its application for 2002/2003. Therefore, not unexpectedly, the Ministry’s view that the applicant had failed to satisfy the required eligibility criteria, and that the settlement needs of newcomers from Mainland China could be better achieved by providing funding to other agencies, remained unchanged.
60The most fertile line of attack raised by the applicant on the respondents’ decision-making was related to the assertion that the decision to reduce, and ultimately eliminate NSP funding to the applicant, was a reprisal for the criticism that Mr. Zhong leveled against the officials of Settlement Unit, and the Ministry, as a whole. Not only did Mr. Zhong repeatedly and persistently refuse to accept the decisions of Ms. Vane, Ms. Carr and Ms. Olechna but, on more than one occasion, he went over their heads to complain about their actions to their superiors. There is no doubt that this was unsettling for those individuals, the Settlement Unit, and the Ministry as a whole. The evidence reveals that there was a considerable amount of frustration and annoyance with Mr. Zhong and his activities on behalf of the applicant.
61This leads to a review of the evidence pertaining to the interview of Mr. Zhong published in the Sing Tao Daily. That interview, without a doubt, struck a nerve within the Settlement Unit and the Ministry.
62Upon reviewing the evidence with respect to this particular issue, it is noted that Ms. Vane or Ms. Carr were not able to definitively recall whether in fact Ms. Vane attended the October 20, 2001 press conference held by the Chinese Interagency Network. Moreover, Ms. Vane could not provide any details as to what actions she took in furtherance of her promise to Ms. Carr that she would be contacting various organizations serving the Chinese community about the article and asking them to send drafts of their response to her. In the Tribunal’s view, while this failure to recall these aspects of this incident was somewhat surprising, it was not as a result of an intentional attempt to deceive or distort on the part of either Ms. Vane or Ms. Carr. They both testified in a fully forthright and overall credible manner. It must also be remembered that the witnesses in this proceeding were testifying almost a decade after the events in question took place, and therefore their recollection of the details of particular events may have been inexorably adversely affected by the passage of time.
63As to the October 5, 2001 e-mail from Ms. Vane to Ms. Carr where she forcefully remarked “… Let’s not waste our energy on this guy/group!!!” the suggestion, by Ms. Lyon, on behalf of the respondents, that this language used by Ms. Vane was not derogatory in nature is not accepted. The intent and tone of the remark was clearly meant to be disparaging and dismissive.
64That remark, between Ms. Vane and Ms. Carr, has to be seen in the context of the frustration that Ms. Vane, and the Settlement Unit as a whole, were having with Mr. Zhong’s repeated barrage of criticism, and in particular his suggestion that Ms. Vane’s decision-making was somehow influenced by the fact that she was an immigrant from Hong Kong. More importantly, for the purpose of this proceeding, there was absolutely no evidentiary support to a finding that those comments were in any way related to the fact that Mr. Zhong was from Mainland China or that his organization primarily served individuals from Mainland China. Again, there has to be a nexus between the cited prohibited grounds and the purported improper acts of the respondents, being relied upon by the applicant, and I find that no such nexus existed in this case.
65From a broader perspective, even if the applicant had established on the evidence, which it did not, that the actions of the respondents, to reduce and ultimately cut funding to the applicant was a reprisal for the criticism levelled by Mr. Zhong that alone would not give rise to a breach of the Code. There would have to be a finding that the alleged retaliatory actions were in part related to, or triggered on account of the applicant’s ethnic origin and/or place of origin. There is no basis, on the evidentiary record, to reach such a conclusion.
66Finally, in term of completeness, it is necessary to address the applicant’s assertion that a conflict of interest situation necessarily arose as a result of the fact that Ms. Vane, at one point in time, was employed as the Programme Director for the Centre for Information and Community Services, another agency that received NSP funding for providing settlement services for newcomers, in part, from Mainland China. The simple answer to that assertion is that this Tribunal has no overriding jurisdiction to inquire into conflicts of interests that may have, or may not have, arisen in the Ministry’s administration with respect to the requests for NSP funding. At the same time, it is difficult to accept the proposition that a conflict of interest necessarily arose, solely based on the fact that, some ten years earlier, Ms. Vane had been employed by another agency that was in receipt of NSP funding for providing settlement services for newcomers from Mainland China.
67In conclusion, referring back to the shift in the burden of proof that is applicable in the case at hand, the respondents conclusively established a more than reasonable explanation for the decision to reduce, and then ultimately eliminate NSP funding to the applicant. Moreover, the applicant clearly failed to satisfy the test of establishing that the rationale offered by the respondents for their decisions, was in some manner only a pretext for discriminatory motivated behaviour.
68In light of the above, this Application is, therefore, dismissed.
Dated at Toronto this 27th day of May 2013.
”signed by”
Brian Sheehan
Member