Amazan v. Toronto Catholic District School Board, 2015 HRTO 751

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Félix Amazan Applicant

-and-

Toronto Catholic District School Board, Norma Rios, and Sylvie Talarico Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: June 8, 2015 Citation: 2015 HRTO 751 Indexed as: Amazan v. Toronto Catholic District School Board

WRITTEN SUBMISSIONS

Félix Amazan, Applicant Marie Amazan, Representative

Toronto Catholic District School Board, Carrado Maltese, John Shain, Norma Rios, Jose Cayanan, and Sylvie Talarico, Respondents Paul Matthews, Counsel

Peter Bernotas, Marie-Josée Duchesne, Doreen Pierini, Nicole Gueigueirre, Respondents Jerry Raso, Counsel

Canadian Union of Public Employees, Local 1328, Intervenor Devin Paul, 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 race, colour, ancestry, place of origin and ethnic origin.

background

The Application

2The applicant is an elementary school teacher employed by the respondent school board (the “Board”). The applicant identifies himself as a black man from Haiti. The Application concerns workplace violence complaints made against the applicant by several of his co-workers. The applicant alleges that on March 6, 2013 Norma Rios, an Educational Assistant with the Board and an individual respondent, falsely accused him of workplace violence after an incident in the computer room. According to the applicant he arrived with his students for their scheduled computer time and informed Ms. Rios that it was their time and that he said, very slowly, that he “did not care” when she explained that she had to remain. The applicant states that he carried on with his class’ activities. Ms. Rios reported the incident to the school principal and individual respondent, Sylvie Talarico, who commenced a workplace violence investigation, and also filed a complaint with the police who charged him with assault. The applicant was required to remain away from school pending resolution of the complaint and criminal proceedings. John Shain, the area superintendent and an individual respondent became involved in the matter and Carrado Maltese, the Board’s Coordinator of Occupational Health and Safety and an individual respondent, was assigned to investigate the complaint. The applicant alleges that Ms. Rios’ complaint was based on racist misperceptions that black men are violent, intimidating and aggressive. The applicant alleges that the investigation was conducted in an unfair and biased manner because of racist attitudes and perceptions of him and his behaviour held by the individual respondents.

3The Board’s investigation was put on hold pending resolution of the criminal matter. In November 2013, the Crown withdrew the criminal charges against the applicant. In early January 2014, the applicant, along with a union representative and his lawyer, met with Mr. Maltese and the applicant expressed his desire to return to work. According to the applicant, Mr. Maltese stated that the investigation would be complete in two weeks.

4On January 16, 2014, Mr. Maltese informed the applicant’s union representative that four new complaints against the respondent had been filed by Peter Bernotas, Marie-Josée Duchesne, Nicole Guegueirre and Doreen Pierini, all of whom are teachers at the same school as the applicant and individual respondents. The applicant alleges that neither the Board nor Mr. Maltese has provided him with the details of the four teachers’ allegations against him and that he has only received brief description of the allegations without dates. The applicant states that some of the issues arising in these four complaints were addressed during a meeting in May 2012 when it was determined that there was a lack of communication at their school. The applicant alleges that these complaints are motivated by racism and a flawed understanding of appropriate workplace behaviour.

The Board’s Response

5The Board filed a Response on behalf of itself, Carrado Maltese, John Shain, Norma Rios, Jose Cayanan, and Sylvie Talarico (the “Board respondents” or the “Board”). The Board denies that any of its actions amount to discrimination and provided a detailed account of the events in question from the Board respondents’ perspective.

6The Board states that the incident of March 6, 2013, as reported by Ms. Rios, was far more serious than the applicant describes, and involved the applicant invading Ms. Rios’ personal space and twice yelling loudly and slowly in her face “I don’t care” when she explained that she and her students would be leaving the computer lab shortly. The Board states that the applicant caused Ms. Rios to be afraid for her safety and for her students. Ms. Rios reported the incident to Ms. Talarico and later contacted the police and her union representative. Ms. Talarico spoke to Ms. Rios’ students and two staff members who were near the computer lab at the time of the incident, including Jose Cayanan, a Library Technician and an individual respondent. These witnesses corroborated Ms. Rios’ account and Ms. Talarico spoke to Mr. Maltese to initiate a workplace violence investigation. The Board denies that the investigation or any action of its employees was improper. The Board suspended the applicant with pay pending the conclusions of the investigation and the criminal charges against him.

7The applicant declined to participate in the Board’s investigation while the criminal charges against him were outstanding. In November 2013, the Crown withdrew the charges against the applicant. In December, a union representative contacted the Board to move forward with the investigation. On or about January 6, 2014, the applicant met with Mr. Maltese, the Coordinator of Occupational Health Services, along with a union representative to continue the workplace violence investigation. The same day, four of the applicant’s co-workers, the individual respondents Peter Bernotas, Marie-Josée Duchesne, Nicole Guegueirre and Doreen Peirini, raised safety concerns with Ms. Talarico regarding the applicant’s possible return to the school. Mr. Maltese continued the original investigation and reported the new allegations of workplace violence to the applicant’s union representation.

8Mr. Maltese released his investigation report regarding the incident of March 6, 2013 on February 5, 2014. In the report, Mr. Maltese concluded that the applicant had committed acts of workplace violence and recommended that the applicant be moved to another school to protect the complainant.

9On January 17, 2014, Mr. Maltese provided a summary of the allegations of the four teachers and scheduled a meeting with the applicant to discuss the specifics of the allegations. The investigation report regarding these allegations, which was filed in this proceeding, confirms that the applicant did not meet with Board representatives to discuss the allegations. Mr. Maltese found that the applicant had not committed acts of workplace violence, but found that he was a bully and had harassed the complainants. Mr. Maltese made several remedial recommendations, including assigning the applicant to a different school to protect the complainants.

The Ontario English Catholic Teachers Association’s Response

10The Ontario English Catholic Teachers Association (“OECTA”) represents Mr. Bernotas, Ms. Duchesne, Ms. Guegueirre and Ms. Peirini (the “OECTA respondents”) in this proceeding and filed a Response on their behalf. The OECTA respondents acknowledge that they each filed workplace violence complaints against the applicant. The OECTA respondents deny the applicant’s allegation that their complaints were motivated by racism. The respondents state that nothing in the Application indicates that the applicant’s race, colour, ancestry or place of origin was a factor in the respondents’ decision to file complaints against the applicant. The OECTA respondents state that the applicant’s allegations are bald assertions without any factual foundation.

Summary Hearing

11The OECTA respondents filed a Request for Summary Hearing along with their Response. The OECTA respondents reiterated that the applicant’s allegations against them were based on bald assertions of racism without factual foundation. The OECTA respondents submitted that the Tribunal should hold a summary hearing to determine whether there is no reasonable prospect that the Application or part of the Application will succeed.

12In a Case Assessment Direction dated November 3, 2014, the Tribunal granted the Request for Summary Hearing because it appeared that the applicant may not be able to prove a link between the respondents’ alleged actions and the Code grounds cited. The Tribunal held the summary hearing on March 10, 2015 by telephone conference call.

Analysis and Decision

13Section 5(1) of the Code provides:

Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability

14Rule 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

15In 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.

16The 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.

17At 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.

18The Tribunal has recognized that race based discrimination will often be the result of subtle unconscious beliefs, biases and prejudices. In most cases, there is no direct evidence of discrimination; therefore, discrimination will most often be established by circumstantial evidence. See, for example, Phipps v. Toronto Police Services Board, 2009 HRTO 877 (aff’d Shaw v. Phipps, 2010 ONSC 3884; 2012 ONCA 155).

19In Pitter v. Toronto Transit Commission, 2012 HRTO 1412, the Tribunal described the burden an applicant must meet in a summary hearing in respect of race based allegations, as follows at paragraphs 18-20:

The applicant attributes the conduct of the respondent to discrimination. However, even if I accepted the applicant’s allegations, the burden on the applicant is higher than proving that something adverse happened to him and that he is also a person of colour. He must demonstrate that the adverse treatment occurred at least in part because he is a person of colour. The Application and underlying materials as well as the submissions of the applicant fail to make this connection.

The Tribunal has long accepted that is often difficult to establish direct evidence given the subtle and nuanced ways in which racial discrimination manifests in our culture. The Tribunal is often called upon to draw reasonable inferences from circumstantial evidence which establishes that race is more likely than not one of the factors associated with the conduct in question. In Phipps vs. Toronto Police Services Board, 2009 HRTO 1604 (“Phipps”), for example, the Tribunal drew the inference of racial discrimination from evidence that Mr. Phipps, a black man dressed in his postal uniform delivering mail door to door, nevertheless aroused the suspicions of a police officer who thought it possible that Mr. Phipps might be wearing the postal uniform as a ruse. Even after speaking with Mr. Phipps himself, and also with a neighbour as well as conducting a criminal records check, none of which raised any concerns, the officer continued his investigation of Mr. Phipps by inquiring about him with another letter carrier.

The facts in the Phipps case are not the only kinds of facts which give rise to an inference of discrimination. However, the Phipps case demonstrates the necessity to look beyond the mere speculation of the applicant to the surrounding circumstances of the respondent’s actions. In this case, the applicant is unable to point to evidence which would be reasonably available to him which would enable the Tribunal to draw the inference that the applicant was treated by the respondent in an adverse manner because of his race, colour, ancestry or place of origin

The Board Respondents

20The applicant filed lengthy submissions in his Reply and again in advance of the summary hearing. Regarding the Board respondents, the applicant’s oral and written submissions focus largely on alleged procedural irregularities in the Board’s investigation of Ms. Rios’ complaint against him. In my view, the applicant’s submissions were often speculative and he often asserted that the Board respondent’s actions were based on stereotypes about black men without any apparent factual foundation. However, the applicant also pointed to evidence that the incident of March 6, 2013 was not serious and that Ms. Rios’ and Ms. Talarico’s reaction to his conduct was significantly disproportionate, including complaining to the police. I appreciate that the respondents dispute this, but for the purposes of a summary hearing I must assume that the applicant’s allegations are true absent clear evidence to the contrary. Given the subtle and nuanced nature of racial discrimination, I cannot in these circumstances find that the allegations against the Ms. Rios and Ms. Talarico have no reasonable prospect of success with respect to the incident of March 6, 2013. Pursuant to section 46.3 of the Code, any act or omission of an employee done in the course of his or her employment is deemed to be the act of his or her employer. Consequently, the Application shall continue as against Ms. Rios, Ms. Talarico and the Board regarding the incident of March 6, 2013. The fact that the Application shall proceed against these respondents does not indicate that the Applications shall succeed, but that a hearing is necessary to assess the merits of these allegations.

21The applicant did not in my view point to evidence linking the actions of Mr. Maltese, Mr. Shain or Mr. Cayanan to any of the prohibited grounds on which the Application is based. Mr. Maltese investigated the incident of March 6, 2013 and, as noted above, the applicant pointed to several perceived procedural irregularities in the investigation and, of course, he does not agree with Mr. Maltese’s conclusions. The fact that the applicant did not agree with the investigation procedure or its outcome is not, in itself, evidence of racism. In any event, the evidence the applicant pointed to regarding the investigation would not establish that the investigation was conducted unfairly, even assuming that evidence to be true. Other than repeatedly state that Mr. Maltese’s conduct of the investigation demonstrated that he was motivated by racism, the applicant did not point to evidence that could support the inference that the conduct of the investigation was linked to his race, colour, ancestry, place of origin and ethnic origin. For example, the applicant stated that he was the subject of three workplace violence investigations between 2012 and 2014, which indicated that he was treated differently because of racial stereotyping. For the purposes of a summary hearing, I assume the applicant’s statement about being subject to several investigations is true, but the mere fact that he was subject to complaints and others were not is not evidence of differential treatment. The applicant pointed to no evidence that any other staff member was the subject of a workplace violence complaint in circumstances similar to his or that the respondent followed a different procedure when investigating other employees. In my view, the applicant’s allegations against Mr. Maltese consist of bare assertions and speculation and have no reasonable prospect of success.

22With respect to Mr. Shain, the applicant objects to a letter he sent to parents on or about March 19, 2013 advising them of incident on March 6, 2013 in general terms and also that the incident resulted in criminal charges and that a staff member would not be at school until the matter was resolved. The applicant stated that the letter harmed his reputation and was intended to portray him as a “bad guy” to parents. The applicant also asserted that Mr. Shain received information from the police about his arrest, which was inappropriate. Mr. Shain’s letter, on its face, appears to be no more than an attempt to inform parents of a potentially serious situation at the school. The applicant pointed to no evidence that could lead to an inference that his race, colour, ancestry, place of origin and ethnic origin were a factor in Mr. Shain’s decision to send the letter. Similarly, the applicant pointed to no evidence that would indicate that Mr. Shain’s knowledge of the applicant’s interactions with the police had any connection to Code grounds, even assuming it was improper. Mr. Cayanan is alleged to have been a witness to the incident of March 6, 2013 and he apparently corroborated Ms. Rios’ account. The applicant submitted that Mr. Cayanan was acting on racist stereotypes, causing him to exaggerate or fabricate evidence against him. This is no more than a bare assertion. For these reasons, I find that the allegations against Mr. Shain and Mr. Cayanan have no reasonable prospect of success.

The OECTA Respondents

23The applicant also submitted written submissions in his Reply and submission regarding the summary hearing regarding the OECTA respondents. In his summary hearing submissions, the applicant refers back to the factual allegations made in his Reply. The applicant devoted relatively little time to the OECTA respondents in his oral submissions during the summary hearing.

24In the Reply the applicant goes on at some length regarding allegations of past misconduct conducted by the OECTA respondents. For example, the applicant alleges that Mr. Bernotas and Ms. Guegueirre did not carry out their duties as union representatives properly and that all of the OECTA respondents were too close to Mr. Talarico, the principal. Mr. Bernotas is accused of trying to ensnare the applicant in financial improprieties, allegedly at the behest of Ms. Talarico. The applicant alleged that Ms. Talarico has refused to compensate him for losing planning time. The applicant states that Ms. Talarico made Mr. Bernotas the Physical Education teacher in 2012-2013 instead of the applicant, which he considered to be improper. The applicant accuses Mr. Bernotas as being a “double agent” in his role of union representative by providing Ms. Talarico with information about the union’s intentions.

25The applicant also alleges that a parent informed him that Mr. Bernotas has yelled and cursed at his class without sanction and has never been the subject of a workplace violence investigation. The applicant states that a parent informed him that Mr. Bernotas did not choose a skilled soccer player for the school team because he is black and that Mr. Bernotas made a comment about the amount of time devoted to teaching “ethnic students”. The applicant alleged that Ms. Duchense became upset and abruptly left a meeting in May 2012 and “violently slammed the door” as she did so. The other attendees, who included Ms. Guegueirre, Mr. Pierini and Ms. Talarico did not say anything about this behaviour. The applicant submitted that no action was taken against Mr. Bernotas or Mr. Guegueirre because they are white, which demonstrated differential treatment against him, a black man. The applicant alleges a number of perceived procedural irregularities regarding the investigation of the OECTA respondents’ complaints against him. In his summary hearing submissions the applicant repeatedly asserts that the OECTA respondents perceived him as a violent and intimidating black man and therefore filed their complaints with a view to having him removed from the school.

26Unlike his submissions regarding Ms. Rios and Ms. Talarico, the applicant did not point to evidence, whether direct or circumstantial, that could support an inference that the applicant’s race, colour, ancestry, place of origin or ethnic origin was a factor in the OECTA respondents’ decision to make workplace violence complaints about him. The applicant’s submissions regarding the OECTA respondent’s, particularly Mr. Bernotas, consist, in my view, of speculation about their motives regarding several past grievances and bare assertions that he was subject to differential treatment because he is black. In any event, it is not clear to me that the examples of the alleged past behaviour of the OECTA respondents are relevant to the issues raised in this Application. The allegations that Mr. Bernotas yelled and cursed at his class and that Ms. Duchense slammed a door are not analogous to the aggressive and threatening behaviour attributed to the applicant by the OECTA respondents. Accordingly, the fact that no one complained about these actions does not in my view amount to evidence of differential treatment. The applicant submitted that the timing of the OECTA respondents’ complaints against him is evidence of racist motivation. In my view, it is not. On the materials filed by the parties, including the investigation report into the OECTA respondents’ complaints, it is clear that the OECTA respondents were concerned that the applicant might soon be returning to work at their school and they did not want that to happen because of the behaviours they attributed to him, namely bullying and harassing behaviour. Their timing does seem opportunistic and the allegations against the applicant are certainly negative, but without more, the fact that the applicant is black is not evidence that the applicant’s race, colour etc. were factors in the OECTA respondents’ complaints. The applicant offered only the bare assertion that the OECTA respondents were operating on racist stereotypes. In these circumstances, I find that the applicant has no reasonable prospect of proving that the OECTA respondents’ complaints amounted to discrimination contrary to the Code.

27The applicant asserts that the investigation of the OECTA respondents’ complaint breached his Code rights. To prove this allegation the applicant must have evidence that the investigation or the investigator was influenced by discriminatory factors. The applicant asserts that Mr. Maltese could not investigate both Mr. Rios’ complaint and the OECTA respondents’ complaints and remain impartial and objective. The applicant alleges that Mr. Maltese did not provide him with the substance of the OECTA respondents’ complaint and therefore the applicant cannot defend himself against these allegations. Investigations may be conducted in a variety of formats and the mere fact that the applicant does not agree with the format chosen by the Board does not make it discriminatory. The applicant asserted that he was the victim of differential treatment, but he did not point to evidence that complaints against non-black employees were conducted differently. In my view, the applicant’s allegations regarding the investigation of the OECTA respondents’ complaints rest entirely on his bare assertions and speculation and therefore have no reasonable prospect of success.

Order

28The Tribunal orders as follows:

1. The Application is dismissed as against Carrado Maltese, John Shain, Peter Bernotas, Marie-Josée Duchesne, Doreen Pierini, Nicole Gueigueirre, and Jose Cayanan;
2. The Application shall continue as against the Board, Norma Rios and Sylvie Talarico with respect to the incident of March 6, 2013 only; and,
3. The style of cause shall be amended accordingly.

Next Steps

29The Board indicated in its Response that it is prepared to engage in mediation, but the applicant did not select mediation in his Application. If the applicant wishes to attempt to resolve this matter through resolution, he must inform the Tribunal within 14 days of the date of this Interim Decision and the Tribunal shall schedule the matter for a mediation session. If the applicant does not agree to mediation, the Tribunal shall set the matter down for hearing.

30I am not seized.