Ashvin Vyas v. Peel District School Board, 2014 HRTO 1516

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ashvin Vyas

Applicant

-and-

Peel District School Board

Respondent

-and-

CUPE Local 2544

Intervenor

INTERIM DECISION

Adjudicator: Brian Cook

Date: October 9, 2014

Citation: 2014 HRTO 1516

Indexed as: Vyas v. Peel District School Board

APPEARANCES

Ashvin Vyas, Applicant

Kartik Vyas, Representative

Peel District School Board, Respondent

Roy Filion, Counsel

CUPE Local 2544, Intervenor

Graham Martette, Representative

Introduction

1These Applications allege discrimination with respect to employment because of race, colour, ancestry, place of origin, ethnic origin, creed, sex, family status, age, association with a person identified by a Code ground, and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant self-identifies as a person of Indian background who is a Hindu.

2The Application referred to as “the first Application” in these reasons alleged discrimination because of race, colour, ancestry, place of origin, ethnic origin, creed, sex, family status, age, association with a person identified by a Code ground. A second Application alleged reprisal. It is referred to as “the reprisal Application”.

3By Case Assessment Direction dated May 1, 2014, the Tribunal directed a summary hearing to determine if the Applications should be dismissed in whole or in part because of delay or on the basis that there is no reasonable prospect that the Applications or part of the Applications will succeed.

4The first Application was filed on June 25, 2012. Most of the events described in the first Application relate to things that are alleged to have happened more than one year before June 25, 2012. The Case Assessment Direction directed that the issue of the timeliness of the Application would also be addressed at the summary hearing.

5The summary hearing was heard by telephone conference call on August 8, 2014.

Background

6The applicant was hired by the respondent as a part-time attendant on April 20, 2005. An attendant performs cleaning duties in schools operated by the respondent. The position of attendant is not the same as the position of custodian, which is a higher position. The applicant alleges that he left a full-time job with a different employer because he was led to believe that he would be promoted to a full-time position as a school custodian.

7The applicant alleges that he has experienced discrimination in a number of ways. First, he says that he has been unsuccessful in his attempts to be promoted to the position of custodian. Second, he says that he has been improperly denied access to overtime hours. Third, he says that he has been treated improperly in respect of his request for time off and sick leave and other payroll issues.

Attempts to become a custodian

8The applicant is currently employed as a permanent part-time attendant.

9There is no dispute that in order to become a custodian, it is necessary to pass a course, referred to as the Basic Caretaking Course. It is also not disputed that the applicant has not successfully passed this course. According to the respondent, the main deficiency was with respect to the applicant’s proficiency in English although there were also issues about other necessary skills.

10At the hearing, the applicant clarified this aspect of his allegations. He alleges that:

• In 2008 he was invited to take the pre-test but did not pass. He was told to take English as a Second Language classes but he did not think this was necessary.

• In 2010, he applied to take the test again. He passed the pre-test but in March 2011 he was told that he had not successfully passed the test itself.

• He was not initially permitted to re-write the test. After filing a grievance, he was allowed to write the test but he was told he had to take courses first and he was not told what these courses were so he did not re-write the test.

• A female co-worker who the applicant believes is a Christian was permitted to rewrite the test and was not required to take additional courses.

• English proficiency is not a bona fide requirement of the custodian job.

11At the hearing, the respondent said that the applicant was permitted to rewrite the test in 2011. He was told that the problem was his English language skills were not sufficient. English as a Second Language (ESL) courses were recommended to improve his English skills. He was not told that he had to take any courses before re-writing the test but ESL courses were recommended so that he would be more likely to pass the test.

12The respondent confirmed that a female co-worker who wrote the test at the same time as the applicant was permitted to rewrite the test right away. However, the respondent said that she had come very close to the passing mark. The respondent said the creed of this woman is not known although it was agreed that she is not Hindu.

13The respondent concedes that English proficiency was not specifically identified in the custodian job description. However, the respondent states that a custodian must be able to fill in forms and interact with students and school staff in English. The applicant suggests that he has sufficient English skills for these purposes. He alleges that the respondent has continually changed the level of English skills that he is required to have. He was initially told that he required level 4 proficiency but now understands that he requires a level 7 proficiency. According to the Response filed by the respondent:

Custodians must have a certain level of ability to read, write and speak in English. What is known as ESL Level 7 will generally suffice for that purpose.

Access to overtime hours

14The applicant alleges that he previously was able to access overtime hours but that he was then denied access to overtime. He believes that this is due to his creed. He alleges that people who are not Hindu and who have the same qualifications as he does are able to access overtime hours.

15The respondent states that overtime hours may be accessed by two different groups of attendants. The first group are people who have said that they intend to take the Basic Caretaking Course but have not yet done so. The respondent states that sometimes people say they are going to take the course but then do not. Those people are eligible for overtime until it is clear that they are not taking the course. The other group are people who have taken the course and successfully passed the test. The applicant does not fall into either of these categories. He did not successfully pass the test. Although he was told that he could re-write the test, and could therefore have been a person who was waiting to take the test, he did not in fact take the test or indicate that he intended to take the test.

16The applicant alleges that the co-worker who was allowed to re-write the test was allowed to access overtime hours even though she too had failed the test. The respondent states that this was because she had come close to passing and also she was then someone who was waiting to take the test and was eligible on that basis.

17The respondent said that all of these rules reside in the Collective Agreement with the union. As a result of negotiations with the union, starting in September, the rules will change and all attendants will be able to access overtime hours.

Payroll issues

18The first Application identifies a number of disputes about the allocation of time off, sick time and payroll issues. For example, the applicant alleges that he was sick for two days in May 2011 but that they were marked as unpaid discretionary days. He says that on at least one other occasion he was at work but was not paid and instead a vacation credit was used. He says that on another occasion he was not allowed to use a personal day to attend a medical appointment with his wife and instead had to use a vacation day.

Timeliness

19The first Application was filed on June 25, 2012. The reprisal Application, which alleged reprisal for having filed the first Application, was filed on February 19, 2014.

20Section 34 of the Code provides:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

21The applicant concedes that the allegations regarding the course and test procedures and many of the payroll issues relate to events that happened more than one year before the first Application was filed. However, the applicant notes that he filed grievances about these same issues in January and March 2011 and that those grievances were filed within one year of the alleged discriminatory events. The grievances proceeded to step two in the grievance procedure. The applicant filed the first Application when it appeared that the union might not pursue the grievances. The first Application was initially deferred by the Tribunal because of the grievance proceedings. The union then decided to not pursue the grievances further. This decision was confirmed at a union meeting on July 10, 2013. The first Application was re-activated when there was no longer an ongoing grievance proceeding.

Analysis

22In general terms, the first Application reflects the applicant’s sense that he has been treated unfairly during his employment. In his view, this unfairness may result from the fact that he is a Hindu and of Indian background.

23The fact that a person believes that he has experienced unfairness or has in fact experienced unfairness does not necessarily mean that the person has experienced Code-related discrimination. Code-related discrimination is not established because a person associated with a Code-protected ground has experienced unfairness. To establish discrimination under the Code, the person must be able to prove that the unfairness happened, at least in part, because the person is a person associated with a Code-protected ground.

24One of the purposes of a summary hearing is to allow the applicant to explain what evidence he will rely on to prove that he experienced unfairness because he is a person associated with a Code-protected ground. If the applicant cannot point to such evidence, the first Application, or part of the first Application will be dismissed as having no reasonable prospect of success.

25In this case, the applicant must also explain why he should be allowed to pursue those allegations that relate to things that happened more than one year before June 25, 2012, when the first Application was filed.

Allegations related to the 2008 testing processes

26In my view, the allegations related to earlier testing processes in 2008 cannot proceed because there is not a good faith explanation for the delay. There was no grievance filed regarding these earlier testing processes. There is no explanation for the delay provided by the applicant.

I am also satisfied that these earlier allegations are not part of a “series of incidents” for the purpose of section 34(2) of the Code. The earlier allegations seem to relate to things that happened in 2008. There seems to therefore be a gap of at least two years before the events relating to the 2011 testing process (those events seem to have started in 2010). The Tribunal has generally found that a gap of more than a year between alleged events is a factor in determining that the events are not a “series of incidents” for the purpose of section 34(2).

The payroll issues

27Having heard from the applicant, I am satisfied that all of the allegations concerning what the first Application refers to as “payroll issues” must be dismissed because there is no reasonable prospect of success or because of time delay.

28The applicant asserts that the payroll issues, including access to sick time and personal days, were unfair. Assuming, for the purpose of this analysis, that the applicant is right about this, he has not identified any evidence that would show that this alleged unfairness happened because of any of the Code-protected grounds that he indicated in the first Application. As well, all of these alleged payroll issues seem to have occurred more than one year before the first Application was filed and no explanation has been offered by the applicant to demonstrate that the delay was incurred in good faith.

Family status allegation

29The applicant alleges that someone associated with the union told him that the respondent had suggested that the fact that the applicant’s son had been involved in helping pursue the applicant’s case had “hurt his case”.

30The fact that someone in the union told the applicant that the respondent felt that his son’s involvement was not helping his case does not appear to me to be evidence of discrimination under the Code because of family status. On the basis of the alleged comment, it appears that to the extent that the respondent dealt with the applicant’s case differently because the applicant’s son was involved, it was because of potential difficulties the respondent had with the way the applicant’s son framed issues or arguments in his capacity as a representative of his father. There is no evidence to suggest that any differential treatment happened because of the fact that the applicant is the parent of his son.

The allegations about the 2011 testing process

31There are a number of allegations about the tests that were administered in 2011. The respondent asserts that the reasons the applicant did not pass the test and was not considered for a position as a custodian is that he did not have sufficient proficiency in English. The applicant alleges that there was a sort of “moving target” about what level of proficiency was actually required. There is some evidence that might support this allegation as it appears that the applicant was told that he might require a level 8 proficiency but there is also indication that a level 7 proficiency is sufficient. It is not clear what level the applicant has.

32The Tribunal has found that, while language is not a Code-protected ground, it can be a proxy for or indicator of discrimination based, for example, on race, ethnicity or place of origin: see Arnold v. Stream Global Services, 2010 HRTO 424; Ilchenko v. Algonquin Careers Academy, 2012 HRTO 2226.

33At this stage in the proceeding, I find that it is not appropriate to dismiss the allegations that the 2011 testing was discriminatory. At this time, I find that it cannot be said that these allegations have no reasonable prospect of success.

34The allegations about the 2011 testing relate to events that occurred more than one year before the Application was filed. The applicant asserts that there is a good faith explanation for the delay, which is that he had filed grievances about those allegations.

35A person who is in a union has access to the protection of the Code in regards to employment-related issues through the collective agreement and the grievance process. However, decisions about whether to process or pursue a grievance are made by the union and not the union member. In this case, the applicant filed the grievances in good faith. The union pursued the grievances through to step 2 of the grievance proceeding and then decided not to pursue them further. Before that decision was reached, the applicant filed the first Application with this Tribunal because he began to worry that the union might not pursue the grievances. If the union had told the applicant when he first filed the grievance that it would not pursue the grievance, the applicant could have filed the Application and it would then have been filed in time with respect to the allegations about the 2011 testing.

36The Tribunal has generally not accepted that the fact that a person has pursued other legal remedies establishes a good faith explanation for delay in filing an Application. However, it has been suggested that a union grievance may be different from other legal remedies because in a union grievance, it is the union and not the grievor who has control of the process: Lutz v. Toronto (City), 2009 HRTO 1137.

37In my view, the circumstances concerning the grievances in this case may provide a good faith explanation for the delay in filing the Application with respect to the allegations about the events relating to testing in 2010 and 2011. I am not prepared to dismiss these allegations for delay at this time.

38If necessary, the Tribunal will schedule a one-day in person hearing. At that hearing, the parties should come prepared to provide evidence and make submissions about the grievances and what happened to the grievances. The issue of delay may be revisited in submissions. The parties should also come prepared to provide evidence and submissions about the testing procedure in 2011 and the events related to that procedure, and to make submissions about whether the circumstances establish evidence of discrimination contrary to the Code.

39In the meantime, however, the parties have consented to mediation. The Tribunal will accordingly schedule a mediation session before scheduling a hearing.

Reprisal

40The reprisal Application filed by the applicant alleges that the respondent reprised against the applicant for having filed the first Application. In the reprisal Application, the applicant relates another dispute about sick time that arose in January 2014. He indicates that the respondent categorized a day he was off work as an unpaid sick time. The applicant indicates that he was unable to call in to report that he was sick at the beginning of the day because he did not have access to a phone. He believes that the day should have been credited as a paid sick time. He alleges that it was categorized as an unpaid sick day in reprisal for having filed the first Application.

41Whether or not this day was properly categorized as paid or unpaid is a dispute that clearly arises out of the particular events. I see no basis to support an allegation that the dispute had anything to do with the first Application.

42As noted in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at paragraph 23, “[r]eprisal under s. 8 of the Code must be a reprisal for the assertion of human rights and there must be an intention to reprise for that reason.”

43Apart from the assertion that there was a connection, the applicant has not identified any evidence to support this allegation and has not pointed to any evidence that might show that the respondent intentionally categorized or mis-categorized sick time as a reprisal for the first Application.

44The reprisal Application is accordingly dismissed as having no reasonable prospect of success.

Direction

45Except for allegations relating to the 2011 testing process, the allegations in the first Application are dismissed.

46The reprisal Application is also dismissed.

47The Tribunal will continue to process the first Application with respect to the allegations concerning the 2011 testing process and the events connected with that process. This is not a final decision on the timeliness of those allegations. If necessary, this issue may be revisited in a hearing on the merits of those allegations.

48Both parties indicated a willingness to participate in mediation once the issues considered in this Interim Decision had been considered. The Tribunal will proceed to schedule a mediation session.