Vyas v. Peel District School Board, 2015 HRTO 1336

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

DECISION

Adjudicator: Brian Cook Date: October 7, 2015 Citation: 2015 HRTO 1336 Indexed as: Vyas v. Peel District School Board

APPEARANCES

Asvin Vyas, Applicant Kartik Vyas, Representative

Peel District School Board, Respondent Roy Filion, Counsel

CUPE Local 2544, Intervenor Paul O’Ryan, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of race, colour, ancestry, place of origin, ethnic origin, creed, sex, family status, age, and association with a person identified by a Code ground contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant is employed by the respondent school board as an attendant. An attendant primarily performs cleaning duties in schools. An attendant is not the same position as Custodian, which is a higher-level position. The applicant started his employment with the respondent as an attendant in 2005. His objective has been to become a Custodian. In this Application he alleges that he has not been successful because of discrimination.

3The Application was considered in Interim Decision 2014 HRTO 1516. The Interim Decision dismissed most of the allegations for the reasons set out in that Interim Decision. Allegations concerning a testing process in 2011 and events subsequent to that process were not dismissed. A separate Application alleging reprisal was also dismissed.

4The Application was heard on September 14 and 15, 2015. At the hearing, the applicant refined the allegations and focussed on the allegation that the respondent imposed arbitrary English language proficiency standards; that the standards kept shifting; and that the standards were not required and the applicant had sufficient English proficiency to do the job. The applicant alleges that these factors suggest that the respondent discriminated against him on the basis of his place of origin.

5At the hearing, I heard evidence from the applicant; Ziggy Musial, who was the applicant’s supervisor; Kent Murray, the respondent’s Facilities Manager; Gord Thompson, the respondent’s General Manager – Facilities; and Edmundo (Tony) Pereira, vice-president of the union local at the relevant time.

Background

6The process that the respondent has established for promoting people from the position of attendant to the position of Custodian involves a written test followed by a five-day course, called the Basic Custodial Training (BCT) course. At the end of the BCT course there is an examination based on performance of duties assigned.

7The written test is designed to test for basic knowledge of the aspects of maintaining and cleaning schools. Since the test is in English it also serves as a basic literacy test.

8The applicant first started his employment as a part-time attendant. In 2008, after he became a full-time attendant, he was invited to take the written test. He took the test but did not pass. He was told that he needed to improve his English literacy. The applicant had previously attended English as a Second Language (ESL) classes and obtained an ESL Benchmark 4.

9In November 2008, he asked his supervisor, Mr. Musial, if his ESL certificate was in his personnel file. Mr. Musial sent the applicant an email on November 30, 2008, advising that “you need Level 7 certificate to be considered for custodial position.” The applicant did not agree that he required a higher level of English proficiency than he already had.

10There is no dispute between the parties that the job description for Custodian does not specify the need for Level 7 ESL.

11In 2010, the applicant complained to the union; he was then allowed to re-take the written test and this time he passed.

12In March 2011, the applicant participated in the BCT course. He failed the examination at the end of the course. The respondent requires a mark of 60%. The applicant achieved a mark of 43%. The test results show that the applicant's low score is attributable to the fact that on the written part of the test, several questions were not answered or incompletely answered, and some questions were answered incorrectly. In addition, on the part of the test where the applicant was given instructions and observed while performing tasks, the examiners felt that the applicant had not followed the instructions and had did some of the tasks in an unsafe manner.

13In the Application, the applicant alleged that the BCT testing may have been discriminatory. In Interim Decision 2014 HRTO 1516, I found that allegations about the 2011 course and testing were not timely as they occurred more than a year before the Application was filed. However, I noted, that it was possible that they were part of a series of alleged discriminatory events, in which case, they could be allegations that could be considered as part of this Application. At the hearing on September 12, 2015, the applicant clarified that he did not wish to pursue allegations about the 2011 course and testing.

14While the course and testing are not part of the allegations of discrimination, they are an important factual part of the background to the allegations that are being pursued.

15After all the candidates were assessed, Kent Murray, who was in charge of administering the course, wrote to the candidates. The candidates who did not pass the test were invited to contact Mr. Murray to review the results.

16Mr. Murray was present as a witness at the hearing. He testified that usually unsuccessful candidates contact him to find out what they can do to improve their chances in the future. In this case, the applicant telephoned Mr. Murray. Mr. Murray told him that he needed to review the test in person. The applicant did not want to do that.

17The applicant testified that during this conversation, Mr. Murray told him that it was necessary for him to improve his English proficiency. He also said that Mr. Murray suggested that he could take courses but did not specify what the courses might be. Mr. Murray testified that he did not tell the applicant that he needed to improve his English proficiency. He said that he might have said something to the applicant about communication issues but he said this would have been in relation to the fact that the applicant did not follow instructions during the testing. The applicant testified that he did not have any difficulty following instructions during the testing.

The grievance proceedings

18The applicant approached his union about the unsuccessful BCT test. Two grievances were eventually filed by the union.

19The first grievance was filed on January 5, 2012 (“the January Grievance”). It stated:

The action of the Board is unjust and unwarranted and violates article 2.4 and other relevant articles of the collective agreement.

20This grievance was filed at the conclusion of a meeting at the union offices. The applicant was present at this meeting and so were the Local President and Vice-President. The Local President is now retired, and is no longer an employee or involved in the union. The Vice-President, Tony Pereira, no longer holds a union position but is employed by the respondent. He appeared as a witness at the hearing.

21At some time after the January 5, 2012 meeting, the applicant, with the assistance of his son, typed up notes of what happened in the meeting. There is also a handwritten note that Mr. Pereira wrote on January 5, 2012.

22The applicant believes that during this meeting, the respondent confirmed that it had discriminated against him on the basis of English proficiency. This happened, he says, during a telephone conversation between the Local President and Mr. Musial. The applicant testified that as the meeting started, the President called Mr. Musial on his cell phone.

23According to the applicant's notes, during this telephone call, he heard the President reacting to things that were said by Mr. Musial (referred to in the notes as Ziggy). These things included a discussion of ESL levels. According to the notes, during the conversation the President said that Mr. Musial’s position was “absolutely wrong”. The President reminded Mr. Musial that the applicant had ESL level 4, and stated to Mr. Musial that the applicant should not require a level 8 and that none of the “policies of the facilities and protocols” say anything about needing level 8 to do the custodian job. According to the notes, the conversation concluded with the President stating:

We don’t need ESL 8. ESL 4 is enough. You have to show me where does that say that. You will have till this Friday to allow this member to write the test.

24Mr. Pereira’s notes are not as extensive. They do indicate “member was told to take ESL by Ziggy”.

25Mr. Pereira testified that he could not really recall any of the details of what happened in the meeting. He did recall that the applicant wanted to grieve and that the objective was to convince management to let the applicant re-take the BCT test. Mr. Pereira testified that his recollection is that the President was walking around the room talking to Mr. Musial on his cell phone. He did not think it likely that the applicant could have heard the conversation in the detail suggested by the applicant's notes, especially as he himself was engaged in a conversation with the applicant while the telephone conversation was going on.

26Mr. Musial testified that he could not recall the conversation with Mr. Pereira at all. He denied that he told the applicant that he required any particular level of ESL.

27A second grievance was filed on February 27, 2012 (“the February grievance”). It claimed that:

The actions of the Board by not allowing me an opportunity to re write the Basic Custodial Test is unjust and unwarranted.

28The employer responded to this grievance following a Step 1 meeting held on March 20, 2012. On March 30, 2012, the Respondent’s Controller of Facilities wrote to the applicant to state the employer was willing to allow the applicant to re-write the Basic Custodial Test. The employer noted that the parties agreed that this would fully and finally resolve the grievance. The applicant initially expressed some concern but on April 16, 2012, he sent an email to Mr. Pereira stating that he accepted the resolution.

29Mr. Murray then set up a time for the applicant to re-write the test but the applicant declined to do so and did not come at the scheduled time. In the subsequent months, further dates were scheduled for the applicant to re-write the test but he did not appear.

30The applicant testified that the reason he did not re-write the test was that he felt that he was anxious about the prospect of re-writing the test because of his belief that the respondent had discriminated against him.

31Mr. Murray testified that the reason for initially denying the applicant an opportunity to re-write the test was a concern that it would be only setting the applicant up for failure. Since the applicant had not reviewed the results of the first test with Mr. Murray, and had not done anything else to improve his knowledge so as to improve his ability to successfully pass the test, Mr. Murray was concerned that there was no reason to suppose that the applicant would do better if he re-wrote the test so soon after failing the first time. Mr. Murray testified that usually he encourages people to improve their knowledge base. He counsels people about how best to do that but in this case the applicant did not agree to meet.

32Prior to the settlement of the February grievance, the January grievance had proceeded to a Step 2 meeting, which occurred on March 8, 2012. It was denied by the employer at that time. The exact nature of the February grievance is not clear from the documents provided at the hearing. The applicant provided the union with two “questionnaires” which seem to be designed to allow the grievor to explain the issues. One of these was sent in May 2012. It included many of the allegations that were included in the Application to this Tribunal and which were dismissed in the earlier Interim Decision. It included an “amendment” to the grievance to include the allegation that during the January 5, 2012 meeting, Mr. Musial had stated to the union president that the applicant required ESL level 8 and that this showed discrimination against the applicant.

33There were emails concerning the ongoing grievance and a step 3 meeting was scheduled for October 2012 but it was canceled when the applicant insisted that he had a right under the Charter of Rights and Freedoms to have an interpreter present at the meeting. Discussions about scheduling a meeting continued until July 3, 2013 when the union and the employer agreed to by-pass Step 3, meaning that the matter would proceed to arbitration.

34Later in July 2013, the union grievance committee decided that grievance would not be pursued. The applicant was advised that he could appeal that decision at a meeting of the members but the applicant declined to do so.

Preliminary Evidentiary Issues

35The evidence in support of the applicant’s evidence about what he overheard of the telephone conversation between Mr. Musial and the union president is his own recollection and the notes of the conversation that he produced.

36This evidence was reviewed and discussed at some length during the first day of hearing. At the start of the second day of the hearing, the applicant’s representative advised that they had located a voice recording of the January 5, 2012 meeting. The applicant had recorded the meeting on his phone and the recording had been transferred to his computer. The applicant had a CD of the recording, and asked that it be admitted into evidence. The applicant and his representative indicated that they had forgotten that the recording existed until they were looking for information on the applicant's computer after the first day of hearing.

37The respondent and the intervenor objected. The respondent noted that the proposed evidence was being introduced very late in the process. The respondent agreed that it was willing to listen to the recording in order to determine if it was prepared to agree to let it in as evidence. However, the respondent indicated that it would have to listen to the full recording and not just the recording of the telephone call in order to understand the context and the nature of the recording. The intervenor objected to this, noting that the recording was of a meeting between the applicant and his union to discuss a grievance and that the employer should not be privy to a recording of such a conversation, particularly as the recording was made surreptitiously.

38After hearing from the parties, I determined that it was not appropriate to allow the applicant to enter the recording into evidence. I noted the following factors:

• The Tribunal’s Rules require a party to disclose evidence in advance of the hearing.

• The recording in question was made without the knowledge of any of the participants at the meeting.

• The part of the recording that the applicant wants to rely on is a recording of one half of a telephone conversation in which the alleged discriminatory comments were made by the party to the conversation who was not recorded.

• The respondent’s requirement that it be permitted to listen to the whole recording of the meeting was appropriate.

• The union’s objection to the respondent being permitted to listen to a meeting that was a private meeting between the union and a member to discuss a grievance was understandable and legitimate.

39The applicant’s representative then asked that the hearing be adjourned so that the union president could be called to testify. The applicant explained that he had not asked that the union president appear as a witness in advance, because he expected that Mr. Musial would recall the conversation and that Mr. Pereira would also provide evidence to corroborate his memory of what happened in the January 5, 2012 meeting.

40The other parties advised that the union president no longer has any affiliation with the union and that he is retired and no longer an employee of the respondent. The parties further advised that they believe that the union president is currently in Portugal.

41I advised the applicant and his representative that it was not clear that it was necessary to hear from the union president. First, since the conversation in question occurred over three and a half years ago, it was not likely that the proposed witness would have any clear recollection of the conversation. More importantly, it was not clear that the proposed evidence would contribute anything to the case, even if the union representative appeared as a witness and was able to corroborate the applicant's recollection of the telephone conversation. I invited the applicant and his representative to address this point in submissions and indicated that based on the submissions, it would be possible to continue the hearing in order to hear from the union president.

42For the reasons explained below, I have determined that it is not necessary to reconvene the hearing to hear evidence from the union president.

Test for Discrimination

43In this Application, the applicant alleges that respondent arbitrarily imposed English language proficiency standards for the custodial position and that these kept changing. He alleges that this means that he was treated differently because of his language skills and that this differential treatment was the reason that he has not been promoted to the position of Custodian.

44Language proficiency is not a ground that is protected under the Code. The applicant argues however, that language proficiency levels that are applied to a job applicant but that are not necessary in order to perform the job may be evidence of discrimination on the basis of place of origin, which is a Code-protected ground. On this point, the applicant relies on the Ontario Human Rights Commission, Policy on Discrimination and Language. At page 11, the policy states:

If an employer refuses to hire or promote an employee, if a sales clerk chooses to serve only particular customers, or a building manager is consistently rude to certain tenants because of a characteristic that is closely related to grounds under the Code, these actions may give rise to a human rights claim. Language is a characteristic that is often closely associated with ancestry, ethnic origin or place of origin. Thus, the Code may be breached where a language requirement, such as “proficiency” in English, excludes, gives preference to, or restricts persons because of their ancestry, ethnic origin or place of origin.

45It is important to appreciate that this does not mean that a requirement of English proficiency is necessarily discriminatory. Many jobs legitimately require some degree of English proficiency.

46In this case, the applicant alleges that the respondent imposed a degree of English proficiency that was not required in order to do the job. He also alleges that the degree of proficiency kept changing. He infers from this that he was subject to unfair treatment on the basis of language proficiency. He further infers that a reason for this unfair treatment was discrimination on the basis of a Code-protected ground, and in particular, race, colour, ancestry, place of origin, or ethnic origin,

The testing process

47There is no dispute that the applicant failed the Basic Custodian Test. The applicant concedes that he did not pass the written part of the test. From the test results, it is apparent that the reason he did not pass the written part of the test was that several questions were not answered, or only partially answered, and other questions were not answered correctly.

48The respondent asserts that in addition, on the parts of the test that involved observation of how the applicant did certain tasks, the applicant did some tasks incorrectly and did others in an unsafe manner. The applicant does not agree that he failed to understand instructions, or did anything incorrectly or in an unsafe manner.

49I note that even if the applicant is correct about this aspect of the test, he would still have failed on the basis of the written test results. This provides the explanation for why the applicant did not pass the test.

50It was not disputed that if the applicant had passed the Basic Custodian Test, he would likely have gone on to be a Custodian.

51In my view, the evidence is therefore clear that, at least as of 2011, the reason that the applicant was not a Custodian is that he failed the Basic Custodian Test and there is no reason to believe that he would not have become a Custodian if he had passed the test.

52In the original Application, the applicant suggested that the 2011 test process was discriminatory. However, at the hearing, he clarified that he was not making that allegation but was instead arguing that he was subject to a moving target of English proficiency.

53The applicant alleges that during his telephone conversation with Mr. Murray after he failed the Basic Custodian Test, Mr. Murray told him that his English was not sufficient and that this is why he failed the test. He does not allege that Mr. Murray said anything about any ESL level that might be required.

54As counsel for the respondent noted, the allegation that Mr. Murray said something about the applicant's English proficiency arose for the first time during the applicant’s testimony at the hearing. It was not described in the Application or any of the other detailed witness statements and other documents submitted by the applicant before the hearing.

55Mr. Murray denies that he told the applicant that the applicant's English proficiency was not sufficient, although he agrees that he may have said something about “communication issues”.

56It appears to me that even if Mr. Murray told the applicant that his English was not sufficient, or if this is what he meant by “communication issues”, this was not necessarily either improper or discriminatory. The fact that the applicant did not pass the test in large part because answers were not answered, partially answered or incorrectly answered suggests that either the applicant did not understand the questions or lacked the information needed to correctly answer them. A lack of English proficiency was therefore a factor that may have contributed to the fact that the applicant did not pass the test. The reasons why the applicant failed the test, and what solutions there might be to allow him to successfully write the test in the future could have been explored if the applicant had agreed to meet with Mr. Murray to review the test results.

Was a level of English proficiency required?

57The applicant submits that Mr. Musial imposed language requirements that were not required in order to perform the job of Custodian and that this created a discriminatory barrier that prevented him from becoming a Custodian.

58Two job postings for the position of Custodian were entered into evidence. The first is dated November 10, 2010, and it is the version that was in place at the time of the 2011 testing. It does not specify anything about language proficiency. However, as the respondent notes, it does specify successful completion of the Basic Custodial Training course. Successful completion would require some level of English proficiency both in terms of literacy and spoken comprehension.

59The second posting is dated December 13, 2011. It reflects a change in the job requirements to include “good communication skills, both oral and written, to work effectively with Board personnel and outside agencies.”

60The respondent agrees with the applicant that there has never been a specified minimum level of English proficiency in the job descriptions. The respondent’s witnesses indicated that the Board had in fact considered whether it was appropriate to establish a minimum level of English proficiency for the position of Custodian, but had decided not to do so and instead to include the above-noted provision. The respondents note that the written test that is taken before a person can take the Basic Custodian Test requires some level of literacy to pass successfully. The written part of the Basic Custodian Test also requires a level of literacy. The part of the Basic Custodian Test that involves assessment of the way tasks are performed requires a level of English comprehension.

61However, the respondents assert that, apart from the ability to understand and pass the tests, there is no formal requirement of any specific level of English proficiency.

62The applicant agrees that there was no formal requirement, but submits that Mr. Musial told him that specific ESL levels were required and that the requirement changed over time. He points to the 2008 email from Mr. Musial that said that a level 7 was required, and his evidence of the overheard conversation between the union president and Mr. Musial, during which Mr. Musial allegedly said that a level 8 was required.

The January 5, 2012 meeting

63The applicant says that the January 5, 2012 telephone conversation between the union president and Mr. Musial provides clear evidence that the applicant was subject to a moving target with regard to English proficiency.

64Assuming that the applicant is correct that during the conversation with the union president, Mr. Musial said that the applicant needed ESL level 8, in my view, this does not establish that the applicant was subjected to a moving target with respect to his English proficiency that prevented him from becoming a Custodian.

65First, the reason that the applicant was not a Custodian in January 2012 was that he failed the BCT test. The respondent’s explanation for why the applicant was not initially allowed to retake the test was that there was no reason to suppose that he would do any better the second time because he had not done anything to improve his chances and had not discussed the test results with Mr. Murray to find out what he could do to improve his chances or identify the reasons he did not pass the test.

66I find the respondent’s explanation for why the applicant was not initially allowed to re-take the test to be credible.

67Even if Mr. Musial felt that the applicant should have an ESL level 8 proficiency, the reason the applicant was not a Custodian was that he failed the Basic Custodian Test. If the applicant is correct that the reasons he failed the test have nothing to do with his English proficiency, then his English proficiency, regardless of his ESL level, was not a factor in why he was not a Custodian. If the applicant is not correct, and if his level of English proficiency was a factor in why he did not pass the test, then improved English proficiency was legitimately needed so that the applicant could pass the test.

68According to the respondent’s witnesses Mr. Musial had no say in whether the applicant would be allowed to re-write the test. That decision was Mr. Murray’s to make.

69Even if Mr. Musial did have some say about whether the applicant could re-take the test and believed that the applicant should not be allowed to take the test until his English improved to ESL level 8, any such impediment was removed by March 30, 2013 when, in settlement of the February grievance, the applicant was permitted to re-take the test. This offer was not conditional on anything related to the applicant's English proficiency. After that, it was the applicant who did not engage in the process that would have allowed him to re-write the test.

70The applicant’s suggestion that the offer to re-write the test was in some way delayed because of Mr. Musial’s alleged view that the applicant required better English skills cannot succeed because, even if Mr. Musial had such a view, and even if Mr. Musial did have some say in whether the applicant could re-write the test, Mr. Murray has provided a coherent explanation for why he did not initially allow the applicant to re-write the test which has nothing at all to do with the applicant's English proficiency.

No link to the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)

71In addition to these considerations, even if the applicant was able to prove that he was subject to arbitrary and changing English proficiency levels and that this was a barrier to his becoming a Custodian, this would not be enough to prove discrimination under the Code.

72As noted earlier, English proficiency is not a Code-protected ground. In itself, it is not discriminatory for an employer to require that an applicant for a position have a certain level of English proficiency or literacy; rather, there must be a connection between the applicant’s perceived difficulties communicating and a Code group, see for example Liu v. Everlink Services Inc., 2014 HRTO 202 at paras 87-88. As discussed in the policy of the Ontario Human Rights Commission to which the applicant referred, “the Code may be breached where a language requirement, such as ‘proficiency’ in English, excludes, gives preference to, or restricts persons because of their ancestry, ethnic origin or place of origin.” The fact that the Code may be breached where language proficiency is required does not mean that it is necessarily breached in such circumstances. A requirement of English proficiency that is not established as necessary or not required in a job posting may give rise to the possibility of discrimination contrary to the Code but the applicant must still provide the proof that discrimination has in fact occurred.

73In this case, apart from the applicant’s belief or suspicion, the applicant did not point to any evidence that might establish that any requirement of English proficiency that may have existed, and that may have contributed to his inability to be promoted to Custodian, is linked to a Code-protected ground.

Decision

74For all of these reasons, the Application is dismissed.