Hewage v. Greater Sudbury (City), 2014 HRTO 703

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Neville Hewage Applicant

-and-

The City of Greater Sudbury Respondent

A N D B E T W E E N:

Neville Hewage Applicant

-and-

The City of Greater Sudbury Respondent

DecisION

Adjudicator: David Muir Date: May 15, 2014 Citation: 2014 HRTO 703 Indexed as: Hewage v. Greater Sudbury (City)

1These are two Applications filed pursuant to section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In 2013-13468-I the applicant alleges discrimination in employment on the basis of ancestry, ethnic origin, race and reprisal. In 2013-15672-I the applicant alleges reprisal. Both Applications were initially filed against multiple respondents but, as noted below, the named individual respondents have either been removed on consent or by Order, below.

2The respondents initially named in 2013-13468-I were delivered the Application and have responded to it. Application 2013-15672-I was not delivered to the respondents initially named and no Response was filed.

3In responding to 2013-13468-I the respondents also filed a Request for Summary Hearing and a Request for Order during Proceedings seeking the removal of the personal respondents and the addition of the organizational respondent, the City of Greater Sudbury. In their Request the respondents also sought an Order declaring the applicant a vexatious litigant.

4In a Case Assessment Direction issued on October 22, 2013 the respondents’ Request for Summary Hearing was granted in respect of both Applications and a summary hearing held on March 21, 2014 by teleconference. All parties participated in the conference call either in person or by counsel.

5On consent of the parties the City of Greater Sudbury was added as a party respondent in 2013-15672-I. Several individual respondents were removed on consent. Orders to that effect were made at the hearing and the style of cause amended accordingly. Moreover in light of my various conclusions below all of the individual respondents are removed from the style of cause.

6At the hearing I dismissed the Application as against Andrew Williams as it was plain and obvious that the Application as against this individual had no reasonable prospect of success. For the reasons that follow I find that these two Applications must be dismissed because having reviewed the submissions of the parties and the pleadings there is no reasonable prospect that the applicant will be able to show that any of the alleged conduct of the respondents was intended as a reprisal for the applicant having raised a Code issue with them or was otherwise discriminatory.

7Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

19A.1 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.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

8Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9:

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.

9The Tribunal does not have the general power to deal with allegations of unfairness; see Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389.

10In both of the Applications the applicant alleges that certain actions of the respondents were in reprisal for an earlier human rights complaint. The reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one’s human rights. See Noble v. York University, 2010 HRTO 878 at para. 31. To proceed with the Applications, there must be a reasonable basis to believe that the applicant could establish such intention and a link to the respondents’ alleged actions.

Application 2013-15672-I

11In this Application the applicant alleges only that the respondents engaged in a reprisal against him for having filed a previous Application by fabricating evidence of his having falsified an affidavit and in effect conspiring to have him arrested by the Sudbury Police days before a summary hearing scheduled in a prior Application.

12Andrew Williams is a police officer who was investigating an allegation that the applicant had provided a false affidavit in the course of a document request made of the respondent City under the Freedom of Information and Protection of Privacy Act (“FOI request”). The applicant has no direct evidence of reprisal but relies on the fact that the arrest was affected by the Sudbury Police a few days prior to a summary hearing in a prior Application filed by the applicant. The applicant also relies on the fact that there was communication between an employee of the City and the investigating officers and that the charges laid against him were ultimately withdrawn by the Crown.

13It is acknowledged by the respondents that the concern that the applicant had submitted a false affidavit was raised by the City Solicitor’s department and that the City cooperated with the police investigation. But the applicant has no evidence that the concern with what appeared to be a false affidavit was not genuine and absolutely no evidence to suggest the Sudbury Police or Mr. Williams who made the decision to charge the applicant was influenced or even aware of the fact that the applicant had previously raised a human rights concern with anyone at the City. In my view the only fact the applicant can point to is a coincidence in time between the arrest and a summary hearing in respect of a prior Application. This is not evidence of anything and clearly not evidence of an intent to impose a punishment on the applicant for his having filed a prior Application.

Application 2013-13468-I

14In this Application the applicant alleges that he was subject to a discriminatory pattern of discipline beginning immediately after he filed an Application on March 27, 2012 culminating in his dismissal on August 2012 (Tribunal File 2012-11186-I). The Application as framed is essentially a claim of reprisal for the applicant having filed a prior Application although it also raises, without particular allegations, that a course of discipline culminating in his dismissal was discriminatory.

15The applicant has no direct evidence of discrimination or reprisal, and the Application as drafted pleads no facts which would tend to support his claims of discrimination. However at the summary hearing the applicant argued that an inference could be drawn from the surrounding circumstances - much of which was not articulated in the Application - that a factor in the applicant’s discipline and ultimate dismissal was one or more of the claimed grounds of discrimination.

16By way of background the applicant was an employee of the respondent City employed in the water department from January 2005 to August 7, 2012 when he was dismissed from employment allegedly for cause. The applicant had a good record with the employer for a considerable period of time. It is also clear from the material that at one time the applicant was considered to be a good employee by several of the individual respondents who appear to have supported the applicant in his professional activities outside of the work place. Relations in the workplace soured when the respondent employer began assigning work to its employees which the applicant considered to be beneath him leading to workplace conflict and discipline by the employer beginning in 2011. It was this new work assignment and the applicant’s view that it was discriminatory that lead to his filing the first of his 3 Applications to the Tribunal.

17This first Application was filed on March 27, 2012 although the respondents would not have been aware of it until several weeks later when it was delivered to them by the Tribunal on May 15, 2012. The applicant also appears to have raised a Code issue with the respondent in December 2011 when he threatened to file an application with the Tribunal in response to discipline imposed on him by the respondents in relation to the controversial work assignment.

18In this regard the applicant appears to have had a largely unblemished record until the year prior to his termination in August 2012. He was disciplined in 2009 but not again until the fall of 2011. It is not disputed that the applicant was subject to the following discipline between October 2011 and August 2012:

a. October 27 and 31, 2011 verbal warning for refusing to complete the duties of his position;

b. November 14, 2011 written warning for insubordination for refusing to complete duties of his position;

c. March 15, 2012 one day suspension for failing to complete a sample required by government regulation;

d. April 12, 2012 a “letter of expectation” regarding inappropriate communications within the workplace and with a city councillor;

e. June 4, 2012 3 day suspension and final warning for covertly tape recording a conversation instigated by the applicant as well as inappropriate communications with a city councillor;

f. August 7, 2012 termination for cause for drafting inappropriate communications and leaving them in the workplace where they would be seen by colleagues and dishonesty during an investigatory meeting with respect to this allegation.

19The applicant relied on the following alleged circumstances from which he asserts an inference of discrimination might be drawn:

a. That he was allegedly one of a very few visible minority employees in the workplace;

b. What the applicant characterized as the rapid escalation of the discipline of him from March to August 2012. The applicant claims that he is not aware of any other employee who was so rapidly discharged;

c. That the rapid escalation of discipline coincided with the applicant’s filing of a prior Application in March 2012;

d. The applicant denies at least some of the alleged misconduct relied on by the respondent City:

1. The applicant asserts that there is not anything inappropriate about his surreptitiously recording conversations with his managers;

2. That he was on a leave and allegedly did not have access to the workplace when documents containing inappropriate communications relied on by the respondent as a culminating culpable incident justifying the termination were discovered;

3. That he did not engage in the inappropriate communication with a city councillor by email as alleged.

e. The manner in which the termination was effected in particular having two police officers present during the termination interview.

20The applicant argued that he was a long service employee with a largely exemplary record but since he filed his first Application in March 2012 he was subject to an unusually high level of scrutiny leading to his termination. The applicant also argues that he believes his discipline was based on a “racialized stereotypical view of his character”. The applicant argues that he denied all of the allegations made against him but that the denials were not accepted. In the applicant’s view these circumstances justify a full hearing. The applicant argues that an Application should not be dismissed where there is a reasonable prospect that evidence disclosed during the hearing process will lead to a finding of discrimination.

21In my view the applicant mis-states the test at the summary hearing stage somewhat. In my view the question before me at this preliminary stage of the proceeding, is whether or not there is a reasonable prospect that the applicant can lead evidence that would tend to support an inference that the applicant’s race, colour, ethnic origin or reprisal etc. were a factor in the discipline imposed and the decision to terminate his employment. It is not, as suggested by the applicant, that if he can cross-examine the respondents’ witnesses, evidence might come forward which might support his contentions. More is required of an applicant seeking to engage the full Tribunal process. There must be some reasonable basis to believe that the applicant can lead sufficient evidence which would require an evidentiary response from the respondent.

22In considering this issue I must assume, unless the contrary is apparent, that the assertions of the applicant are capable of proof and that there is evidence reasonably available to him that would tend to support his claim. I have considered the applicant’s submissions and I have concluded that this Application must be dismissed as having no reasonable prospect of success. As indicated above I find that the applicant has mis-stated the test for a summary hearing. In my view the applicant must show that there is evidence which would tend to show, in this case, that the discipline imposed on him was essentially fabricated for the purpose of justifying his dismissal as a reprisal for his having filed an Application in March 2012 or for other discriminatory reasons. To be clear the question is not whether or not there was just cause for the dismissal; the question at this stage is whether there is any evidence to which the applicant can point which would tend to support the inference that the discipline imposed on him was discriminatory.

23A significant difficulty with the applicant’s submission is that the course of misconduct relied on by the City to justify his submission pre-dates his Application by many months. At the hearing the applicant noted that he had raised a Code issue in December 2011. This is true in the sense that the applicant threatened the respondents with legal action because of their attempts to discipline him for insubordination but I also note that the chain of progressive discipline began before this threat. I also note again that the applicant’s claim of discrimination in the work assignment that lead to the insubordinate behaviour and consequent discipline was dismissed as having no reasonable prospect of success. I have also considered the nature and tone of the communications of the applicant with his employer which give an air of unreality to the applicant’s contentions in that they tend to support the respondents’ concerns about the applicant’s behaviour.

24I appreciate that the applicant denies some but not all of the allegations that the respondent City relied on to justify the dismissal. However as the Tribunal has observed on many occasions it has no jurisdiction to consider whether or not a dismissal was for just cause and has no authority to remedy general allegations of unfairness. It may be that some of the allegations the respondent relies on are unfounded but at this stage the strength of the respondent’s defence is not really in issue. The question is only whether the applicant can point to some evidence or something in the circumstances that would give an air of reality to what are otherwise mere assertions and speculation on the applicant’s part of a link between the respondent’s actions and a Code ground or Code-based reprisal. I find he can point to no such evidence reasonably available to him that would tend to establish his essential claim that the allegations relied on by the respondent were fabricated to justify a termination either in reprisal for an Application, of which they were not aware for much of the time at issue, or for other discriminatory reasons. On the contrary there is much in the material out of the applicant’s own mouth that contradicts the applicant’s claims.

25On this latter point I note the following. The applicant filed an affidavit in which he makes a number of assertions. He claims for example that he did not communicate with a city councillor by email contrary to employer policy. However I note that in communicating with the respondent at the time, which communication was copied to the Tribunal, the applicant did not deny sending email to a city councillor but argued with the employer that he was entitled to do so.

26I note again that the genesis of much of the workplace conflict and the initial discipline relied on by the respondent in Fall 2011 was the subject of the first Application filed by the applicant. I note that much of what was alleged in that Application was withdrawn by the applicant and that the remaining allegations were dismissed as having no reasonable prospect of success. See 2013 HRTO 558.

27I also observe that the applicant appears to have believed that because he had filed an Application with the Tribunal the respondents had lost the authority to manage the workplace as evidenced by a number of communications with the Tribunal in respect of 2012-11816-I in the months after it was filed. In this correspondence the applicant essentially tells the respondents that they cannot discipline him further while his earlier Application is before the Tribunal.

28I have also considered the communications between the applicant and the respondents at the material times included in the various materials filed by the parties. While the Tribunal does not generally evaluate the strength of a respondent’s defence to allegations of discrimination at a summary hearing, these communications certainly undermine any suggestion that there might be any evidentiary basis to draw an inference that any Code grounds were a factor in the respondents’ conduct. These communications are clearly insubordinate and many seem intemperate and rude and give a substantial air of reality to the respondents’ assertion that the applicant was insubordinate and disrespectful of his management which resulted in much of the discipline in question.

29So, for example, in December 2011 the applicant wrote to an employee in Human Resources in relation to a written warning the applicant received:

Therefore, respondent is Mr. Benkovich, You again misinterpret or did not understand the sensitivity of the matter. I will intend to test Mr. Benkovich action (issuing written warning letter) as a violation of the Ontario Human Rights code and related legislations. I will also intend to file the two different civil cases against Mr. Benkovich under Labour Relations Act and Canadian Charter Rights. We are in the process of reviewing Mr. Benkovich’s authority under Ontario Municipal Act and City of Greater Sudbury Act. Our initial investigation found that man irregularities. I cannot reveal more information. My legal team will follow necessary procedures and will inform accordingly. (Errors in original)

30In March 2012 the applicant wrote the following to a superior about another manager apparently in relation to his alleged failure to perform a test for which he received discipline:

Finally Gary Comin attempted to bury his gross incompetence and negligence in managing drinking water operation using his immature common tactics of blaming the operator. In my opinion Gary Comin is the how who should receive suspension, I hope you would advise him that further incidents of this nature will result in further disciplinary action, up to an including termination. (Errors in original)

31For these reasons I find that these Applications must be dismissed in their entirety.

Vexatious Litigant

32The respondents argued as well that these Applications are an abuse of process and the applicant should be declared a vexatious litigant before the Tribunal.

33While I appreciate the respondents’ concerns, particularly those of some of the personal respondents, it does seem to me that even though the conduct of the applicant may raise concerns in some respects, there is not at this time a sufficient basis to justify the extra-ordinary remedy of declaring him a vexatious litigant with the consequence that he would be deprived of the right to file an Application with the Tribunal without first obtaining leave to do so.

34I accept that if it were established that the applicant was responsible for all of what the respondents rely on there is substantial reason to believe that some of his conduct has been intended simply to harass and vex the respondents. However much of the alleged conduct is disputed. Finally while the applicant’s conduct which occurred largely outside of the Tribunal’s process might have been found to constitute an abuse of process the Tribunal made no Orders in that regard– that is the applicant was not informed that his conduct was inappropriate and given an opportunity to modify his behaviour. I am reluctant to impose on the applicant the extraordinary remedy of a vexatious litigant declaration in these circumstances.

35For these reasons I decline at this time to find the applicant’s conduct amounts to an abuse of process and the respondents’ Request that the applicant be declared a vexatious litigant is denied.

Removal of the Personal Respondents

36As indicated above the applicant consented to the removal of several respondents. Given the result above as well as my conclusion that these Applications must be dismissed because they have no reasonable prospect of success I find it appropriate to remove all of the personal respondents and the style of cause is amended accordingly.

ORDER

37For the reasons above the Tribunal makes the following Orders:

a. These Applications are dismissed.

b. The Request of the respondents that the personal respondents be removed is granted.

c. The respondents’ Request that the City of Greater Sudbury be added as a party is granted on consent.

d. The respondents’ Request that the applicant be declared a vexatious litigant is denied.