HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Emmanuel Abegunrin Applicant
-and-
Toronto Hydro-Electric System Limited Respondent
-and-
Canadian Union of Public Employees, Local One Intervenor
INTERIM DECISION
Adjudicator: Maureen Doyle Date: June 9, 2015 Citation: 2015 HRTO 757 Indexed as: Abegunrin v. Toronto Hydro-Electric System Limited
1These Applications allege discrimination with respect to employment because of race, colour, place of origin, ethnic origin and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").
2The applicant identifies himself as "African, black of Nigerian ancestry now Canadian".
3The applicant alleges that he has been subject to discrimination going back to the 1980s or 1990s, a time period for which he makes some reference to not having been able to secure promotions at the respondent, to denial of a leave of absence and to a remark made at a labour arbitration, but does not provide particulars. He then addresses what he alleges has been ongoing discrimination at the workplace since his 2012 transfer to a new work area at the respondent. The allegations contained in the two applications appear to contain significant overlap in terms of the time period, the individuals involved, and the type of allegations. Accordingly, the allegations are hereby consolidated.
4The respondent denies all allegations of discrimination. Further, it takes the position that many of the allegations are devoid of particulars or evidence and should be dismissed on that basis. It also submits that the allegations from the 1980s and 1990s are out of time and should be dismissed on the basis of delay. Finally, it originally took the position that the Applications should be deferred due to the fact that there were numerous grievances ongoing which were related to the same allegations as the Applications. The grievances have subsequently been withdrawn, however, and the respondents no longer seek deferral.
5This Interim Decision addresses several requests made by the applicant.
6The applicant filed a Request for an Order During Proceedings (RFOP) on August 11, 2014, in which he seeks to amend his Application #2-14-16904-I. In addition to repeating much of his argument regarding discrimination at the workplace, he alleges that since May 7, 2014, the reprisals against him have intensified, with his supervisor becoming harsher with him since he filed an Application at the Tribunal. He also asserts that other management personnel at the respondent have been involved in this intensification and reprisal. In essence, he alleges that he was improperly spoken to by his supervisor regarding being tardy to work, and he alleges that he received a poor performance review, issued July 25, 2014, which was unjustified and which was by way of reprisal. He indicates that the implications of the poor performance review included a demotion and attendant salary reduction, as well as a prohibition from competing for promotion for two years. He also seeks to amend the amount of financial compensation he seeks by way of remedy.
7The respondent does not object to the amendment of the Application to include events "that occurred subsequently related to his performance management". They provide a detailed response to the allegation regarding the supervisor having spoken to the applicant about tardiness and also to the allegations regarding the July 25, 2014 performance review.
8That Application is amended to include the applicant's allegation regarding being spoken to about tardiness, as well as his allegation relating to the July 25, 2014 performance review. Further, it is amended to reflect the increased financial compensation the applicant now seeks by way of remedy.
9The applicant also filed an RFOP on February 11, 2015, seeking to amend his Application, # 2014-16904-I. In addition to repeating his general allegation that he is treated in a discriminatory fashion and that discriminatory practices are widespread at the respondent, he alleges that his supervisor improperly took away certain of his job duties on November 28, 2014, in connection with instructions he provided to the applicant regarding Time Sheets in December 2014 and early 2015.
10The respondent does not object to the amendment of the Application to include events that occurred subsequently and are related to his performance management. The respondent has provided a detailed response to the supervisor's instructions to the applicant with respect to his duties and the Time Sheets.
11That Application is amended to include the allegation related to the instructions received by the applicant with regard to Time Sheets in late 2014/early 2015.
12The applicant filed a further RFOP on March 23, 2015, in which he seeks an order that he be moved away from the work area to which he was assigned on March 9, 2015, and he seeks an assignment "back to his former work environment where he was safe".
13The respondent submits that this is not a proper request prior to the start of the hearing and should be denied.
14The applicant appears to be seeking an interim remedy in relation to an event which does not form part of these Applications. In these circumstances, it is not appropriate to provide the order requested by the applicant, and it is denied.
15The applicant has also filed a Request for a Tribunal Ordered Inquiry.
16The Tribunal's authority to order an inquiry in certain circumstances is derived from section 44 of the Code:
44(1) At the request of a party to an application under this Part, the Tribunal may appoint a person to conduct an inquiry under this section if the Tribunal is satisfied that,
(a) An inquiry is required in order to obtain evidence;
(b) The evidence obtained may assist in achieving a fair, just and expeditious resolution of the merits of the application; and
(c) It is appropriate to do so in the circumstances.
17In his request, the applicant states that the inquiry would gather:
records, emails, correspondences from the agency management information system, desktop computers, portable computers, cell phones of various management employees, documents and statements...collect information, voicemails and text messages from cell phones, land phones and other communication devices...other related materials that will help the Inquiry establish how some employees in positions of authority have improperly acted in a bias manner and their own selfish interests to the detriment of members of the identifiable groups, including blacks and aboriginals, causing such members damage in hiring, promotion, job retention and participation in other opportunities in the agency. Furthermore, the inquiry will examine the abuse use of Performance Appraisal in the design of punishment and termination of employee employment, particularly those having black skin colour and; how AWS and Overtime has been administered to the total exclusion of employees with black skin colour in the Street Lighting group.
18He states that an inquiry is necessary because the "evidence goes to the core of the substantive issues" in his Application, and that the "issues are systemic" at the respondent. He asserts that it will "save time and rendered [sic] fairness and justice to the Applicant and others whose human rights and employment were adversely affected" by the respondent. He states that he has requested the above-noted information, but it has been denied to him. He also accuses the respondent of not acting in good faith and describes a large quantity of data to be collected on various matters, including statistical data, examination of hiring decisions, who made hiring decisions and tracing their connections to individuals hired, "examine the reprisal taken against the Applicant" and determine who was involved, and "discriminatory treatment of blacks and aboriginals in the workplace".
19The respondent opposes the request and submits that it has already provided documentation in relation to its submissions. It submits that there is no reason to conclude that it would not provide documentation relevant to this matter, in accordance with its obligations under the Tribunal's Rules of Procedure.
20As the Tribunal has stated in other cases involving requests for a Tribunal ordered inquiry, such an inquiry is not to be used as a "substitute for the usual production process contemplated by the Rules". I note also that the applicant appears to seek an inquiry into issues which go beyond the scope of these Applications, and in particular I note that he has referenced other groups and the benefit which he believes would accrue to them as a result of an inquiry. The applicant proposes a process which would delay these proceedings, a delay which would be incurred to obtain evidence which does not even all appear to be relevant to these Applications. I further note that the respondent has to date made fulsome responses and has provided documentation related to the issues in the Applications and its Responses. Moving toward a hearing date, there are further obligations contained in the Tribunal's Rules of Procedure, regarding disclosure of arguably relevant documentation. In the circumstances, I am not satisfied that there is justification for ordering a Tribunal-ordered inquiry and the applicant's Request is denied.
21The parties have agreed to mediate these matters and the Registrar will schedule one mediation in respect of both matters.
22I am not seized.
Dated at Toronto, this 9th day of June, 2015.
"Signed by"
__________________________________
Maureen Doyle
Vice-chair