Dewling v. Toronto Police Services Board, 2014 HRTO 1617

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Norman Dewling

Applicant

-and-

Toronto Police Services Board and William Blair

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: November 3, 2014

Citation: 2014 HRTO 1617

Indexed as: Dewling v. Toronto Police Services Board

APPEARANCES

Norman Dewling, Applicant

Self-represented

Toronto Police Services Board and William Blair, Respondents

Ian Solomon, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of reprisal.

2The applicant is a Uniform Staff Sergeant in the Toronto Police Service, which is governed by the organizational respondent. In the Application, the applicant asserts that on November 2, 2005 he reviewed the memo book of a subordinate female officer, which contained allegations of sexual harassment against Inspector B. Inspector B. was one of the two senior officers at 22 Division, where the respondent worked. The applicant states that he brought the memo book to the attention of Superintendent H., the other senior officer at the Division. The applicant alleges that Superintendent H. assured the applicant that he would deal with the matter. The applicant states that on September 27, 2006 he received his annual performance evaluation, which had been prepared by Inspector B. (the “evaluation”). According to the applicant, it was the worst evaluation of his career and the applicant asserts that this evaluation was a reprisal for bringing forward the harassment complaint.

3The applicant states that he responded to the evaluation in writing and also lodged a formal complaint when he learned that, in his view, the respondent did not deal with his subordinate’s complaint properly. The applicant participated in an investigation of Inspector B.’s conduct, which was conducted by organizational respondent’s Professional Standards unit. Several female officers filed a grievance complaining of Inspector B.’s behaviour and the applicant joined the grievance as a grievor. The applicant declined the respondent’s offer to settle his part of the grievance. The respondent also agreed to remove the evaluation of September 27, 2006 as part of the grievance process. The applicant states that he reviewed his personnel file on April 26, 2013 and found that the evaluation had not been removed. The applicant asserts that the failure to remove the evaluation was “an even greater reprisal”.

4In their Response, the respondents submitted that the Application should be dismissed for delay and because the applicant’s allegations do not amount to a reprisal under the Code. The respondents deny that the evaluation of the applicant completed by Inspector B. was in any way connected to the applicant reporting alleged harassment by Inspector B. The respondents note that the impugned evaluation was dated August 30, 2006 and was in respect of the period covering January 1, 2005 through August 30, 2006. The respondents state that the applicant’s request for review of the evaluation was denied in a memorandum from Senior Superintendent D.C. on February 12, 2007.

5The respondents state that the Toronto Police Association (the “Association”) filed a group grievance on behalf of several officers, alleging a longstanding course of harassment and differential treatment by Inspector B. towards female officers that was condoned by the organizational respondent’s superior officers and human resources command. The applicant was originally a grievor represented by the Association in the group grievance. The respondents state that the organizational respondent and the Association reached a settlement of the grievance on behalf of eight female officers (including the applicant’s subordinate whose memo book he forwarded to Superintendent H.) and executed minutes of settlement. The respondents assert that this settlement was a full and final resolution of the allegations that the organizational respondent did not address sexual harassment allegations against Inspector B. properly.

6The respondents state that the organizational respondent unilaterally decided to remove the evaluation of September 27, 2006 from the applicant’s file in order to facilitate a resolution of the grievance with the applicant. This decision was recorded in a letter to a representative of the Association, dated March 23, 2011. The respondents state that on the Manager of Labour relations directed Superintendent G., who was the Commander of 22 Division at the time, to remove the evaluation in question from the applicant’s file by e-mail message dated July 5, 2011. The respondents state that the grievance was not resolved insofar as the applicant was concerned, but assert that the Association advised the organizational respondent that the applicant and another grievor “no longer wished to be listed as grievors” and that the Association did not intend to pursue grievances for them regarding Inspector B. The respondents state that the evaluation was not removed from the applicant’s file due to administrative oversight or error and, as a result, the evaluation remained in his file unintentionally. The respondents state that the evaluation was removed from the applicant’s file on May 28, 2013, once the organizational respondent learned that it had not been removed as intended.

Summary Hearing

7By Case Assessment Direction (“CAD”) dated January 14, 2014, the Tribunal ordered a summary hearing to determine whether the Tribunal should dismiss the Application because the substance of the Application has been dealt with in another proceeding pursuant to section 45.1 of the Code, for delay, or because it has no reasonable prospect of success. The Tribunal noted that the Tribunal does not have a general power to deal with allegations of unfairness and that reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one’s human rights. The Tribunal directed the parties to make submissions regarding (1) whether the initial act of placing the evaluation in the applicant’s file amounted to an act of reprisal as that term is defined in the Code; and (2) whether the failure to remove the impugned evaluation from the applicant’s file constitutes reprisal. The Tribunal held the summary hearing in person on August 20, 2014.

Submissions

8The applicant submitted that Inspector B. was transferred from 22 Division, which the applicant believes occurred because he forwarded his subordinate’s harassment complaint. The applicant submitted that a more serious reprisal occurred in February 2007 when Senior Superintendent D.C. declined to address the applicant’s concerns about the performance evaluation completed by Inspector B. The applicant submitted that the respondents were reckless with respect to the effect the evaluation had on him. The applicant noted that the evaluation was reviewed each year by his supervisors, which he submitted amounted to a series of incidents that continued until he discovered the evaluation had not been removed from his file. The applicant submitted that the impact of discovering that the evaluation had not been removed in April 2013 was the same as when he initially received it. The applicant stated that he felt insulted in April 2013 and concluded that he stood no chance of promotion because of the evaluation and the ongoing conflict with the organizational respondent.

9The applicant submitted that the protection against reprisals under the Code should be broadly interpreted to extend to people, such as himself, who attempt to uphold the human rights of others. In this respect, the applicant submitted that he was obliged to bring forward his subordinate’s complaint pursuant to the organizational respondent’s policies and procedures. The applicant stated that he forwarded the complaint based on a genuine belief that his subordinate’s Code rights had been violated, which he submitted was sufficient foundation for a reprisal claim.

10The applicant submitted that there were several pieces of evidence that he submitted would support his allegations. The applicant pointed to his response to the impugned evaluation, in which he identified the evaluation as a reprisal. The applicant stated that he received no update from the organizational respondent regarding his reprisal allegations, which he said would be demonstrated in receiving disclosure of e-mail messages from senior officers and human resources. The applicant stated that he expected to glean evidence supporting his claims from cross-examining senior officers and from disclosure of the investigation conducted by the Professional Standards unit. The applicant submitted that the investigation file would show what efforts were taken to address his allegations of reprisal.

11The respondents submitted that the applicant filed this Application on August 8, 2014 – seven years after Inspector B. drafted the impugned performance evaluation of the applicant. The respondents submitted that the performance evaluation was a discrete incident and cannot be seen as a continuing breach of the Code. The respondents denied that the evaluation had any negative effect on the applicant. The respondents submitted, however, that the evaluation was a discrete incident that could have continuing effects on the applicant. The respondents submitted that the Tribunal’s case law is clear that an alleged incident with continuing effects does not amount to a continuing breach of the Code.

12The respondents submitted that there is no reasonable prospect that the applicant could establish that the evaluation delivered to him in September 2006, or the fact that it was not removed in 2011, as the organizational respondent said it would be, amount to reprisals. The respondents submitted that the evaluation had no negative effect on the applicant, as he pointed to no promotion opportunity that the evaluation blocked him from receiving. The respondents also submitted that the protection from reprisal in section 8 of the Code does not apply to circumstances where one is attempting to enforce someone else’s human rights, as the applicant attempted to do in 2006. The respondent submitted that, in any event, the applicant had not pointed to any evidence that could establish a connection between the applicant forwarding his subordinate’s harassment complaint and the evaluation prepared by Inspector B. The respondents submitted that this allegation is based solely on the applicant’s suspicions, which the respondents submitted was not sufficient.

13Regarding the failure to remove the impugned evaluation from the applicant’s personnel file in 2011, the respondents submitted that the applicant pointed to no evidence that there was any “action” at all, i.e., a conscious decision by someone to leave the document in his file despite the clear direction from the organizational respondent’s Manager of Labour Relations to remove it. The respondents submitted that the applicant pointed to no evidence that the fact that the document remained in his personnel file was intended to punish the applicant for participating in a grievance to enforce his human rights. The respondents submitted that, to the contrary, the documentary evidence shows that the organizational respondent unilaterally agreed to remove the evaluation and took steps to have it removed. The respondents noted that the Manager of Labour Relations directed the Commander of 22 Division, Superintendent G., to remove the evaluation from the applicant’s file in July 2011. The respondents further noted that Superintendent G. was not the Division Commander in 2006 or 2007 and that the applicant had pointed to no evidence that would suggest that the failure to remove the evaluation was anything other than an oversight or error.

Analysis and Decision

14The relevant provisions of the Code are as follows:

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.

8. 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.

15Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

No Reasonable Prospect of Success

16In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paragraphs 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.

17The Tribunal has stated on many occasions that it does not have a general power to deal with allegations of unfairness. See for example: Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, Szabo v. Office of a Member of Parliament of Canada, 2011 HRTO 2201, and Badvi v. Voyageur Transportation, 2011 HRTO 1319. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as race, colour or ethnic origin. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics was a factor in the treatment the applicant experienced. At the summary hearing stage, the Tribunal does not determine whether the applicant is telling the truth or assess the impact of the treatment they experienced. There is no question that acts of unfairness that are not legally discriminatory can cause significant harm.

18At a summary hearing, the test the Tribunal applies is that of no reasonable prospect of success, which is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The mere fact that a person identified by a prohibited ground of discrimination experiences some kind of disagreeable or unfair treatment is not generally sufficient to support an inference of discrimination. The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics. However, if the applicant is unable to point to circumstances beyond his or her own assumptions or belief, the application may be found to have no reasonable prospect of success.

19In my view, the applicant has no reasonable prospect of proving that the respondents intended to retaliate against the applicant for enforcing his human rights through the grievance process by leaving the evaluation in the applicant’s personnel file. The applicant’s submissions on this point were entirely speculative, in particular his submission that he may obtain evidence through cross-examination. The applicant pointed to no evidence that that the fact that the document remained in his file was the result of a decision made by any of organizational respondent personnel. The only evidence available on this point appears to be the organizational respondent’s correspondence stating that the evaluation would be removed to facilitate negotiations regarding the applicant’s grievance and the Manager of Labour Relations’ e-mail message giving directions to execute that undertaking. The applicant pointed to no evidence contradicting the respondent’s position that it intended to have the evaluation removed from the applicant’s file in 2011 or that the failure to remove the document was a mistake. Consequently, the applicant pointed to no evidence that the fact that the evaluation remained in his file was intentional or that the document remaining in his file was connected to his participation in a grievance. In these circumstances, I find that the applicant has no reasonable prospect of establishing that the failure to remove the impugned evaluation in 2011 was a reprisal under section 8 of the Code and this allegation is dismissed.

Timeliness

20The applicant submitted that the Application is timely as it relates to a series of incidents under section 34(1)(b) of the Code. To amount to a series, however, an Application must contain an incident alleged to have occurred within one year of the date on which it was filed. The only “incident” alleged to have occurred within one year of the filing date of the Application was the applicant’s discovery in April 2013 that the evaluation had not been removed from his personnel file, which the applicant submitted was a reprisal.

21As I have found this aspect of the Application to have no reasonable prospect of success, it cannot be relied upon as part of a series of incidents. See Chappell v. Securitas Canada Limited, 2012 HRTO 874, and Garland v. Canusa-CPS, 2012 HRTO 1309.

22The applicant submitted, however, that the evaluation amounted to a series because his superiors reviewed it every year that it was in his file. In other words, the applicant argued that the evaluation amounted to a continuing contravention of the applicant’s Code rights that continued until the spring of 2013, i.e., within one year of the filing date of the Application. In Garrie v. Janus Joan Inc., 2012 HRTO 1955, the Tribunal discussed the analysis to applied when considering whether an incident of discrimination amounts to a continuing contravention of the Code, at paragraphs 39 and 40, as follows:

First, as the Divisional Court stated in Visic, supra, to establish that an occurrence is an incident of discrimination (as opposed to merely the continuing effects of an incident), a party must point to acts of alleged discrimination which could be considered as separate contraventions of the Code. At this stage of the inquiry, the focus is on whether the last conduct complained of could, on its own, support a finding of discrimination.

Second, the Tribunal looks to when the allegedly discriminatory decision or act occurred and considers whether this is distinct from the timing of its consequences. This appears to be the step at which many of the subtleties play out. At this stage, the focus of the inquiry should be on whether the incidents in question involve fresh steps taken by the parties, each step giving rise to a separate alleged breach of the Code.

See also Mafinezam v. University of Toronto, 2010 HRTO 1495.

23In my view, the evaluation given to the applicant in September 2006 does not amount to a continuing breach of the Code. The evaluation itself was the only act of alleged discrimination that could be considered to be a contravention of the Code. The organizational respondent declined the applicant’s request to revise the evaluation in early 2007. After the evaluation was delivered to the applicant the respondent took no fresh steps with respect to the evaluation that could amount to a separate alleged breach of the Code. Rather, the evaluation had continuing consequences for the applicant because it remained in his file for his supervisors to review. In these circumstances, the delivery of the impugned performance evaluation does not amount to a continuing contravention of the Code and is not a series for the purposes of section 34(1)(b) of the Code.

24Since there is no series of incidents under section 34(1), the applicant must demonstrate that the delay in complaining about the denial of the training opportunity was incurred in good faith, pursuant to section 34(2). In order to establish that the delay was incurred in good faith, an applicant must provide a reasonable explanation for not filing his or her application in a timely manner. In this case, however, the applicant did not provide an explanation for his delay in filing the Application, instead arguing that his allegations amounted to a series of incidents. Accordingly, I cannot find that the delay in applying to the Tribunal regarding the evaluation the applicant received in September 2006 was incurred in good faith. This allegation is dismissed for delay.

25The Application is dismissed.