Davis v. Windsor (City), 2014 HRTO 880

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Louis Daniel Davis

Applicant

-and-

The Corporation of the City of Windsor

Respondent

-and-

CUPE Local 82

Intervenor

INTERIM DECISION

Adjudicator: Leslie Reaume

Date: June 16, 2014

Citation: 2014 HRTO 880

Indexed as: Davis v. Windsor (City)

WRITTEN SUBMISSIONS

Louis Daniel Davis, Applicant

Clayton Talbert Sr., Representative

The Corporation of the City of Windsor, Respondent

Patrick Brode, Counsel

CUPE Local 82, Intervenor

Matthew Todd, Counsel

INTRODUCTION

1This Application was dismissed in part by Interim Decision of the Tribunal, 2012 HRTO 1848. The remaining allegations were deferred pending the outcome of a Tribunal hearing into a related application.

2The related matter was resolved by Decision of the Tribunal in 2013 HRTO 291 ("Shreve").

3The parties met by conference call on June 20, 2013, to determine the next steps in this Application. The parties disagreed on the implications of the Decision in Shreve on the remaining allegations in this Application. The parties agreed to deal with that issue by way of written submissions which were filed following the conference call.

4This is my Decision arising from those written submissions.

Background

5The Application was filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging reprisal and discrimination with respect to employment because of race and colour. The applicant's union, CUPE Local 82, was granted intervenor status by the Tribunal on April 19, 2012 (2012 HRTO 801).

6The applicant has been employed by the respondent as a refuse collector since May 29, 1989. He alleges that during the three years prior to the filing of his Application on May 21, 2009, he was subjected to harassment on the basis of race or colour, as well as reprisal, by a number of employees of the respondent in management or supervisory positions. The applicant also alleges that throughout his employment, the respondent has permitted a poisoned environment of systemic discrimination based on race or colour to develop in the workplace.

7In 2012 HRTO 1848, I dismissed the majority of the Application for lack of timeliness and permitted the following allegations to continue:

• September 27, 2007 - A racial joke which was not told in the presence of the applicant but in the presence of Mr. Shreve;
• January 18, 2008 – A racial reference made at a training session which was attended by Mr. Davis and Mr. Shreve;
• July 30, 2008 – The Darrin Brown incident concerning Mr. Davis;
• October 28, 2008 – A racial slur used by an employee, not in the presence of Mr. Davis but in the presence of Mr. Shreve.

8In Shreve, the Tribunal reviewed the evidence associated with all but the incident of July 30, 2008. Mr. Davis testified in support of Mr. Shreve's Application. The Tribunal dismissed the Application finding that the applicant had not made out a breach of the Code by the respondent, City of Windsor.

9With respect to the September 27, 2007 incident, the Tribunal concluded that, "The City meted out discipline to its employee who was found to have breached policy," and that the respondent had not breached the Code.

10With respect to the January 28, 2008 incident at the training session, the Tribunal concluded that what was described to have occurred did not amount to a breach of the Code.

11With respect to the October 28, 2008 incident, the Tribunal appears to have addressed this allegation under the analysis of poisoned work environment where the Tribunal states:

The evidence that I have before me indicates that the respondent city has a comprehensive policy in place that is disseminated widely in the workplace. In this regard, I accept the evidence provided by Melinda Munro. I also have evidence that when complaints were raised by the applicant, not only were the persons concerned interviewed and discipline meted out where appropriate, but also where necessary, retraining on the workplace diversity and inclusion policies took place within a reasonable amount of time.

As a result, I find that the applicant has not satisfied me that the respondent city created and condoned a workplace environment that was poisoned.

The respondent city, conversely, has satisfied me that it has put in place various policies that it appropriately disseminates within the workplace in general and that in specific situations involving breaches of the policy that are serious in nature, engages in further training and education of those policies.

12The respondent argues that given the findings of the Tribunal, to proceed with those three issues would constitute a re-litigation of issues already decided by the Tribunal.

13The union takes no position on the issues before me.

14The applicant filed submissions repeating the allegations which have already been dismissed by me for timeliness and expanding his allegations in a significant manner. His submissions are not responsive to the question he was asked to address, namely, the implications of the decision of the Tribunal in Shreve.

15I agree with the respondent that it would not be appropriate to permit a re-litigation of three allegations in the Application before me which were addressed by the Tribunal in Shreve. The applicant may proceed to the next stage in the hearing process with respect to the July 30, 2008 allegation only.

DIRECTION

16The Tribunal makes the following directions:

• The Application will proceed with respect to the July 30, 2008 allegation only;
• The Tribunal will arrange a conference call to set a hearing date and deal with any preliminary issues which need to be addressed prior to the commencement of the hearing.