HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Stavros Clunis
Applicant
-and-
Toronto Transit Commission
Respondent
DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Clunis v. Toronto Transit Commission
appearances
Stavros Clunis, Applicant ) Self-represented
Toronto Transit Commission, Respondent ) Lucy Siraco, Counsel
INTRODUCTION
1The applicant identifies as a black man who is originally from Trinidad and Tobago. He filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent subjected him to discrimination and reprisals with respect to employment. The respondent denied the allegations of discrimination and reprisal.
2The purpose of this Decision is to decide whether the Application should be dismissed on a preliminary basis because it has no reasonable prospect of success. The parties attended a summary hearing where they had the opportunity to make oral submissions and present documents and cases, which addressed this issue. I have decided to dismiss the Application because it has no reasonable prospect of success. The following are my reasons for the dismissal.
BACKGROUND
3The following facts are not in dispute. The respondent operates a public transit system in Toronto. On June 22, 2009, the applicant began working as a Project Manager in the respondent’s Information and Technology (“ITS”) Department.
4In 2010, four women in the ITS department filed complaints with management, which alleged that the applicant had subjected them to (1) intimidating and aggressive behaviour, (2) belittling and condescending behaviour, (3) a disrespectful/derogatory communication style, (4) differential treatment, and (5) inappropriate comments. None of the allegations were Code-related. The complaints were forwarded to the respondent’s Human Rights Unit (“HRU”). One of the women subsequently withdrew her complaint.
5In response, the applicant filed a 14-page complaint with management against D.V., who was the supervisor of the four women. He alleged that D.V. had subjected him and the members of his project team to badgering, intimidation and bullying.
6Specifically, the applicant alleged that D.V. or members of her team had given conflicting instruction to members of his project team, reassessed the project team’s work, scolded him for contacting a vendor whom he was entitled to contact, demanded changes in meeting minutes that did not accord with the actual discussions and agreements that had taken place in the meetings, tried to cancel important meetings or limit the number of attendees from the ITS Department at the meetings, resisted his suggestions at meetings, spread disinformation about decisions reached at meetings, ranted at him, and sent an email to management that attempted to assassinate his character and that resulted in a six-month extension of his probationary period.
7In his complaint, the applicant alleged that the conduct of D.V. and her team was “maybe even discriminatory”, but he did not explain how their conduct may be discriminatory or relate their conduct to a specific Code ground. The concluding paragraph of his complaint stated:
[…] overall, it has been a very frustrating, demoralising and dehumanising experience trying [to] work with… [D.V.] and some elements of her management team. I feel that I am being persecuted for trying to do my job. There appears to be an ethical void in [D.V.], and some the members of her management team, to the point where they are prepared to falsify documents, embellish circumstances, and flout their authority to the detriment of whomever and whatever project they deem unworthy. All in all it is unfortunate because it makes for a hostile, untrusting, and unhealthy work environment.
8The applicant’s complaint was also forwarded to the HRU.
9The HRU’s Director assigned A.M., a Human Rights Officer, to investigate all the complaints. She investigated the three complaints against the applicant first. On May 26, 2011, she met with the applicant and informed him that her investigation had found that allegations 1) and 5) were fully substantiated, allegation 2) was partly substantiated, and allegations 3) and 4) were not substantiated.
10On May 31, 2011, the applicant wrote a letter to the HRU’s Director, which alleged that A.M. had either not interviewed his witnesses or was not familiar with the documents that he had submitted, and that she had exhibited bias. On June 20, 2011, the Director met with the applicant, and agreed that the HRU would review additional evidence that the applicant had submitted.
11On June 25, 2011, the Director informed the applicant in writing that the additional evidence had been reviewed and considered, and that A.M.’s investigative findings remained unchanged, except that the applicant’s substantiated conduct in allegation 2) violated the respondent’s Code of Conduct Policy rather than its Respect and Dignity Policy.
12On July 4, 2011, the applicant informed the respondent in writing that he was resigning from his position effective July 15, 2011. A.M. never completed an investigation of his complaint.
13On January 3, 2012, the applicant filed an Application with this Tribunal, which alleged that the respondent subjected him to discrimination because of his race, colour, ancestry, ethnic origin, and sex, and reprisals with respect to employment. The Application was incomplete and had very little information explaining how the respondent subjected him to discrimination and reprisals. Specifically:
In section 7(c) (“What was the date of the last event?”), he wrote: “End of the month”. No specific date was provided.
In section 8 (“What Happened”), the applicant wrote “Please see attached”, and attached a copy of his 2010 complaint to the respondent’s management, which is mentioned above.
In section A13 (“Explain why you believe you were discriminated against because of your race, colour, ancestry… or ethnic origin”), the applicant stated: “All the respondents who colluded to try to get me dismissed were of one ethnicity.”
In section A25 (“Explain why you believe you were discriminated against because of your sex…”), the applicant stated: “All the respondents are female.”
In sections A39-41, which asked for information about the nature of the reprisal and how he was reprised against, the applicant left the answer spaces blank.
14On January 17, 2012, the Tribunal sent the applicant a Notice of Incomplete Application, which attached the incomplete pages, and directed him to complete and return them.
15On January 26, 2012, the applicant filed the completed pages and other documents with the Tribunal, which included a new allegation of discrimination against A.M. Specifically:
In section 7(c) of his Application, he wrote: “26th May 2011”.
He attached a letter, which stated that the last incident occurred on the day that he met with A.M. to review the findings of her investigation with him.
He alleged that “[A.M.] and [D.V.] have been friends and colleagues at the TTC for a number of years…”
He also alleged that “[A.M.] has a plaque in her office which I think is inappropriate for one in her position, or at least sends the wrong message. It espouses ‘Girl Power’. I took offense to this blatant bias…”
He further alleged that A.M. never investigated his complaint against D.V.
He attached a copy of his May 31, 2011 letter to the HRU’s Director, which is mentioned above.
In sections A39 and A40 of his Application, he indicated that he took part in a human rights proceeding, which he identified as “Defendant in internal TTC Human Rights investigation”, but he still left section A41 (“Please explain why you believe that you were reprised against.”) blank.
16On February 2, 2012, the Tribunal delivered the Application to the respondent. On March 8, 2012, the respondent filed a Request for an Order during Proceedings (“RFOP”), which requested, among other things, that the Tribunal hold a summary hearing to determine whether the Application should be dismissed on a preliminary basis because it does not have a reasonable prospect of success.
17On April 25, 2012, the applicant filed a Response, which opposed the respondent’s RFOP. He stated that the HRU’s investigation of the complaints by the female employees against him “failed to consider the role that racial stereotypes of black males played in their complaints.” He also made two new allegations of racial discrimination, which were not in his Application:
He was paid less than his white peer, A.C., despite the fact that “they had “the same credentials and more qualifications.”
He unsuccessfully applied for the position of Chief Information Officer. He was more qualified for the position than the successful candidate, A.I., who was white.
18On June 22, 2012, the Tribunal issued a Case Assessment Direction, which directed that a summary hearing be held by teleconference to decide whether the Application should be dismissed on a preliminary basis because it has no reasonable prospect of success. The summary hearing took place on October 11, 2012.
ANALYSIS
Should the Application be dismissed on a preliminary basis because it has no reasonable prospect of success?
19Rule 19A of the Tribunal’s Rules of Procedure provides for a summary hearing, following which an application may be dismissed, in whole or in part, if the Tribunal finds that there is no reasonable prospect that the application or part of the application will succeed. The approach to deciding whether an application has a reasonable prospect of success following a summary hearing was explained as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 (“Dabic”) at paras. 8-10:
In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.
In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.
In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.
20The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17.
21The Application relates to ss. 5, 8 and 9 of the Code, which provide:
- (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
(…)
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
22Although the applicant checked off the reprisal box in his Application and indicated that he took part in a human rights proceeding as a defendant in an internal human rights investigation, he did not explain either in his Application or at the summary hearing how the respondent subjected him to a reprisal for claiming and enforcing his rights under the Code, or instituting and participating in proceedings under the Code. In view of the fact that the applicant has not alleged any facts which would come within the scope of s. 8 of the Code, the allegation of reprisal is dismissed because it is outside the Tribunal’s jurisdiction.
23The focus of the summary hearing was on the second branch of the Dabic test, namely, whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that the respondent discriminated against him with respect to employment because of his race, colour, ancestry, ethnic origin, and sex.
24The applicant made his submissions first. He stated that his Application has a reasonable prospect of success because D.V. and her team of women have a history of trying to discredit and push out people who are not of the right ethnic origin. He also stated that the allegations against him stereotyped him as an angry and violent minority man. Specifically, he stated one of the women falsely alleged that he had banged his hand against a table. He further stated that A.M.’s investigation was biased. He concluded by stating that he did not have anything further to add, and would be able to prove his case with documents and witnesses. He did not address the two new allegations of racial discrimination in his Response to the respondent’s RFOP.
25In response to my questions and the respondent’s submissions, the applicant stated:
D.V. and the women who filed complaints against him were all of European ancestry, except for one, who was of Iranian ancestry.
The email that one of the women sent to management, which resulted in a six-month extension of his probationary period, had allegations which stereotyped him as an ignorant minority man.
There is a Chinese male employee, who will corroborate his allegation that D.V. and her team of women discriminated against minority men.
A.M. and D.V. must be friends and colleagues because they have both worked for the respondent for 10-20 years, and their offices are in buildings that are across from each other.
The plaque in A.M.’s office had photographs of her daughters on both sides, and stated “Girl Power” in the middle. The plaque showed a “leaning” and was in “poor taste” for someone in A.M.’s position.
The two new allegations of racial discrimination in his Response to the respondent’s RFOP were not in his Application because he was trying to keep his Application narrow and focused on one particular issue. Later, someone advised him to include them.
According to the Public Sector Salary Disclosure List (the “Sunshine List”), the respondent paid A.C. $2,000 more than him in 2010.
Although it was true that A.I. had been the acting Chief Information Officer for some time when the applicant applied for the permanent position, he had heard rumours that A.I. has an Executive MBA, which a person can get without basic qualifications, and had previously worked as a dispatcher making calls. By contrast, the applicant has an MBA from Queen’s University, which is recognized as the best in Canada.
26In its submissions, the respondent stated that the Application does not have reasonable prospect of success because the applicant has merely made bald assertions that the respondent subjected him to discrimination. Following the summary hearing, the respondent sent the Tribunal an email, which included a link to the Sunshine List. The link shows that A.C.’s salary was $112,019.54 and the applicant’s salary was $111,695.36 in 2010, which is a difference $324.18, not $2,000. The respondent stated that, according to its payroll records, the $324.18 difference in salary appears to be based on the fact that the applicant took at an unpaid vacation day.
27In response, the applicant sent an email, which apologized to the Tribunal and the respondent, stated that it was not his intention to mislead anyone, and thanked the respondent for clearing up this matter. He then sent several more emails, which essentially alleged that he had to take an unpaid vacation day because his probation had been extended.
28In my view, the Application does not have a reasonable prospect of success. I find that there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that the respondent discriminated against him with respect to employment because of his race, colour, ancestry, ethnic origin, and sex. After filing his Application, the applicant added new allegations of discrimination, and failed to provide a clear explanation why they were not included when he originally filed his Application. I appreciate that the applicant is a self-represented person, but he is also highly educated and sophisticated, and it seemed to me that he was adding new allegations of a speculative nature in the hope that some of them would stick.
29This was exemplified by the fact that during the summary hearing, even with prodding from the Tribunal, the applicant had difficulty pointing to evidence that he has or that is reasonably available to him that can show a link between the respondent’s alleged conduct and the Code grounds in his Application. I am cognizant of the fact that discrimination is often the result of subtle, unconscious beliefs, biases and prejudices, and can often only be proven by circumstantial evidence and inference, but the applicant still has to point to some evidence that he has or that is reasonably available to him that can show such a link. In the case at hand, the applicant mainly relied on speculation and accusations, pointed to evidence that would have little or no probative value, and made factual allegations that he later had to retract because they were shown to be false.
30I will deal with the applicant’s allegations in the order that he made them.
Allegation #1
31When the applicant originally filed his Application, he alleged that D.V. and members of her team had badgered, intimidated and bullied him, and colluded to try to get him dismissed. He submitted that there is a reasonable prospect that the following evidence will show a link between D.V. and her team’s conduct and his race, colour, ancestry, ethnic origin, and sex:
D.V. and her team have a history of trying to discredit and push out people who are not of the right ethnic origin.
D.V. and the individuals who filed complaints against him were all of European ancestry, except for one, who was of Iranian ancestry.
D.V. and the individuals who filed complaints against him are all women.
The individuals who filed complaints against him stereotyped him as an angry and violent minority man. Specifically, he stated one of the individuals falsely alleged that he had banged his hand against a table.
The email that one of the individuals sent to management, which resulted in a six-month extension of his probationary period, had allegations which stereotyped him as an ignorant minority man.
There is a Chinese male employee, who will corroborate his allegation that D.V. and her team of women discriminated against minority men.
32In my view, 1), 5) and 6) are too vague to have any probative value. With respect to 2) and 3), the fact that the individuals who allegedly targeted the applicant are mostly, but not exclusively, of European ancestry, and are all women would only have small probative value. With respect to 4), I agree that stereotypes of black men being angry and violent exist in society. See Bageya v. Dyadem International, 2010 HRTO 1589, Adams v. Knoll North America, 2009 HRTO 1381, and Sinclair v. London (City), 2008 HRTO 48. However, given that the HRU found that the individual’s allegation about him was unsubstantiated and the respondent did not discipline him, such evidence, in my view, would have modest probative value at best.
33Accordingly, I find that this allegation does not have a reasonable prospect of success.
Allegation #2
34When the applicant filed further information with the Tribunal in response to the Notice of Incomplete Application, he alleged that A.M. conducted an investigation, which was biased in favour of the women who complained against him. He submitted that there is a reasonable prospect that the following evidence will show a link between A.M.’s conduct and his race, colour, ancestry, ethnic origin, and sex:
A.M. and D.V. must be friends because they have both worked for the respondent for 10-20 years, and their offices are in buildings that are across from each other.
A.M. had a plaque in her office, which had photographs of her daughters on both sides, and stated “Girl Power” in the middle.
A.M. never investigated his complaint against D.V. and members of her team.
35In my view, 1) is too speculative to have any probative value, and pointing to 2) as evidence that A.M. discriminated against him because he is a man is absurd and exemplifies the speculative and unsubstantiated nature of his allegations of sex discrimination. With respect to 3), there is no dispute that several women filed complaints against the applicant before he filed a complaint against their manager (D.V.), and that shortly after A.M. completed her investigation of the complaints against him, the applicant quit his job. As such, 3) has little or no probative value.
36Accordingly, I find that this allegation does not have a reasonable prospect of success.
Allegation #3
37In his Response to the respondent’s RFOP, the applicant alleged that he was paid less than A.C. who had the same job as him. He submitted that there is a reasonable prospect that the following evidence will show a link between the pay differential and his race, colour, ancestry, and ethnic origin:
He is black and A.C. is white.
In 2010, his salary was $111,695.36 and A.C.’s salary was $112,019.54, which is a difference of $324.18.
38Although the applicant sent the Tribunal an email, which appeared to indicate that he was withdrawing this allegation, he then sent several more emails, which appeared to indicate that he was still pursuing it. In any case, in my view, 1) and 2) only have small probative value. Moreover, the applicant himself appears to concede that the slight difference in salary is explained by one unpaid vacation day.
39Accordingly, I find that this allegation does not have a reasonable prospect of success.
Allegation #4
40In his Response to the respondent’s RFOP, the applicant also alleged that he unsuccessfully applied for the position of Chief Information Officer. He submitted that there is a reasonable prospect that the following evidence will show a link between the respondent’s refusal to grant him the position and his race, colour, ancestry, and ethnic origin:
He is black and A.I., who was the successful candidate for the position, is white.
He has an MBA from Queen’s University, which is recognized as the best in Canada. By contrast, although it was true that A.I. had been the acting Chief Information Officer for some time when the applicant applied for the permanent position, he had heard rumours that A.I. has an Executive MBA, which a person can get without basic qualifications, and had previously worked as a dispatcher making calls.
41In my view, 1) only has small probative value, and 2), which is largely based on rumours, has little or no probative value.
42Accordingly, I find that this allegation does not have a reasonable prospect of success.
ORDER
43The Application is dismissed.
Dated at Toronto, this 3rd day of June, 2013.
“signed by”
Ken Bhattacharjee
Vice-chair