Lewis v. Toronto Transit Commission, 2016 HRTO 1200

Human Rights Tribunal of Ontario

B E T W E E N:

Altus Lewis Applicant

-and-

Toronto Transit Commission, Edith Stubbs, Kirsten Watson, Enzo Marghella, and Thomas Hartley Respondents

INTERIM DECISION

Adjudicator: Leslie Reaume Date: September 13, 2016 Citation: 2016 HRTO 1200 Indexed As: Lewis v. Toronto Transit Commission

APPEARANCES

Altus Lewis, Applicant | Selwyn A. Pieters, Counsel Toronto Transit Commission, Edith Stubbs, Kirsten Watson, Enzo Marghella, and Thomas Hartley, Respondents | Marnie Tolensky, Counsel

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges reprisal and discrimination with respect to employment because of disability and marital status. The grounds of family status and sex were initially cited, however, there are no facts pled in support of these grounds and the parties are in agreement that they should be removed from the Application. The applicant also agreed to remove Kirsten Watson as an individual respondent from this Application.

2The applicant alleges that he was the subject of conduct amounting to reprisal by the remaining individually named respondents as a result of filing a previous application with the Tribunal which was ultimately dismissed: Lewis v. Toronto Transit Commission, 2015 HRTO 256. He alleges that the respondents wrongfully accused him of abusing the sick leave system and spread false rumours speculating that he may have been using some of his sick time to engage in an extra-marital affair.

3The respondent, Toronto Transit Commission (“TTC”) denies the allegations of discrimination and argues that the Application should be dismissed for no reasonable prospect of success. In the alternative, the individual respondents should be removed from this Application.

4By Case Assessment Direction (“CAD”) dated December 11, 2015, the Tribunal set this matter for a Summary Hearing. The CAD indicated that the Tribunal would hear submissions in relation to the test of “no reasonable prospect of success”.

5The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests.

6The Tribunal is not empowered to remedy general allegations of unfairness in areas such as employment, services or accommodation. Unfair treatment is not discrimination unless there is proof that the personal characteristic was a factor in the treatment the applicant experienced.

7The test that is applied at a summary hearing is whether an application should be dismissed in whole or in part because there is no reasonable prospect that the applicant will be able to prove discrimination. To establish discrimination under the Code requires proof of adverse or unfair treatment which is based, in whole or in part, on a person’s race, gender, disability or other prohibited ground under the Code. In other words, the ground must somehow be a factor in the adverse treatment. Where an application appears to be missing this connection, or where it would assist the Tribunal in understanding the allegations, the parties are asked to participate in a summary hearing by teleconference. The Tribunal may schedule a summary hearing on its own initiative or in response to a request from a respondent.

8The applicant has also alleged reprisal. In Noble v. York University, 2010 HRTO 878, at paragraph 31, the Tribunal stated:

In order to prove reprisal, [an applicant] must establish that the respondent engaged in an action, or threat, which was intended as a retaliation for the claiming or enforcement of a right under the Code. Unlike an allegation of discrimination, where intention is not a necessary element to prove a violation, where reprisal is alleged, the complainant must establish that the action was taken with an intent to punish or retaliate.

9At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment they experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s allegations are true unless there is some clear evidence to the contrary. In some cases, for example, the applicant will not dispute the respondent’s version of one or more of the facts.

10Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The purpose of the summary hearing is to determine if there is evidence the applicant can point to or that may be reasonably available to support the applicant’s belief that he/she has experienced discrimination and/or reprisal.

11The primary focus in the summary hearing is on the applicant’s submissions. The respondent’s explanation may be considered where there is no dispute about the facts or where it is plainly obvious that a fact must be true. However, the Tribunal is very careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondent has an alternative explanation of the events. The Tribunal is mindful of the fact that in some cases an application must proceed further in the hearing process because the respondent is the party who has control over the evidence which could favour the applicant’s case.

12There is no evidentiary or legal burden of proof assigned to either party in a summary hearing and as a result, it is not up to the applicant to demonstrate that an application has a reasonable prospect of success. Summary hearings generally occur at an early stage in the process prior to the exchange of disclosure and are determined on the basis that the applicant’s allegations are accepted as true. It is the role of the Tribunal to examine the allegations, apply its expertise, and determine whether or not an application should move ahead in the hearing process or be dismissed for no reasonable prospect of success. The applicant’s role is to explain, by referring to evidence in his or her possession or evidence that may be reasonably available to the applicant, how he or she intends to prove that there is a connection between the conduct of the respondent and the prohibited grounds cited in the application.

13The CAD also indicated that the Tribunal would consider whether the individual respondents should be removed from the Application. The CAD set out information about the Rules and jurisprudence which apply to this issue.

14Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para. 42, the Tribunal set out the general principles that apply to this issue:

The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for “any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent”. Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.

15The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5:

Applying these principles to the Tribunal’s power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?

3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

5. Would any prejudice be caused to any party as a result of removing the personal respondent?

In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.

16The parties participated in the summary hearing by teleconference on June 27, 2016.

17The applicant alleges that he was legitimately ill for a period of time but treated as if he was engaging in fraud when he booked paid sick leave. The applicant was ultimately suspended for 15 days. The stated reasons for the suspension were as follows: the applicant attempted to book paid sick leave when he was not actually sick; he attempted to have colleagues work shifts on overtime which he was not authorized to do; and he attempted to involve a supervisory colleague in covering up his improper conduct. The respondent, TTC, concluded that the applicant’s conduct was unbecoming of a supervisor and that he had lied and attempted to mislead management as to what actually transpired.

18The applicant also alleges that during the same period the individual respondents circulated rumours speculating that he was not actually sick when he booked off sick leave and that he may have been using some of that time to engage in an extra-marital affair. The applicant alleges that these actions constitute discrimination and also reprisal for filing his previous human rights application. He alleges that the individual respondents intentionally perpetuated harmful and demeaning stereotypes about him as a married person and as a person who engages in sick leave abuse when he was actually disabled by illness.

19I have considered the submissions of the parties and their written materials. This is a case which requires evidence and analysis by the hearing adjudicator to resolve including the question whether the applicant was disabled within the meaning of the Code. The applicant will be required to produce evidence to prove that his treatment when he became ill in the workplace and the circulation of rumours about his marital status was discriminatory and done intentionally as a reprisal for the filing of his previous human rights application.

20The respondents seek dismissal in part on the basis that the applicant will be unable to establish a prima facie case. The prima facie case is an evidentiary standard. This test may be applied at a later stage in the proceeding after the hearing adjudicator has considered some or all of the evidence, but it is not applied at the summary hearing stage.

21The purpose of a summary hearing is to enhance the fairness of the Tribunal’s process for both applicants and respondents. That purpose is not achieved by dismissing applications because the allegations are novel or unlikely to succeed, or the respondent is likely to be able to prove a defence. The test of no reasonable prospect of success should be considered in only the clearest of cases since it can significantly delay the hearing on the merits and add procedural layers to the proceeding and additional burdens on the parties.

22Accepting the applicant’s allegations as true, I cannot find that there is no reasonable prospect that he can succeed under the Code. By making this finding I am not suggesting that the Application is likely to be successful. In fact, the allegations will be very difficult to prove. However, at this stage in the process, it would be premature to dispose of this Application given the fact that the applicant has established that there will be some evidence which is reasonably available to him which could support his allegations of discrimination and reprisal. Pursuant to Rule 19A.6, I do not consider it necessary or useful to provide further reasons. The presiding adjudicator will be in the best position to determine the scope of the evidence and issues at the hearing.

23With respect to the individual respondents, I have carefully considered the submissions of the parties and the case law cited above, in my view they should not be removed at this stage. The hearing adjudicator who will consider the evidence, may come to a different conclusion at some point after the hearing has commenced. But at this stage the applicant argues that the alleged conduct of the personal respondents is a central issue because the conduct of the individuals is central to the allegations of discrimination and reprisal and that if discrimination/reprisal is found, it may be appropriate to award a remedy specifically against the individuals. It is particularly true with respect to reprisal allegations, that the intentional conduct of one or more individuals could attract a remedy specifically against that individual if an infringement is found.

24Accordingly, the Application will continue to the next stage in the hearing process against all of the respondents other than Kristen Watson.

Direction

25I make the following directions:

• Kirsten Watson is removed from this Application. The title of all documents filed with and issued by the Tribunal will be amended accordingly;
• The Application will continue against the remaining respondents;
• The Registrar is requested to set this Application for a two-day hearing day;
• If the parties wish to participate in mediation they may advise the Registrar within 10 days of the date of this Interim Decision;