Kevin Josephs v. City of Toronto, 2016 HRTO 1547

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kevin Josephs

Applicant

-and-

City of Toronto

Respondent

RECONSIDERATION DECISION

Adjudicator: David Muir

Date: December 2, 2016

Citation: 2016 HRTO 1547

Indexed as: Josephs v. Toronto (City)

WRITTEN SUBMISSIONS

Kevin Josephs, Applicant

Self-represented

City of Toronto, Respondent

David A. Gourlay, Counsel

Introduction

1On July 5, 2016, the Tribunal issued its Decision in this Application under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), 2016 HRTO 885, allowing the Application in part. The respondent has asked the Tribunal to reconsider its Decision.

BACKGROUND

2The applicant is a paralegal who routinely conducts business in court houses operated by the respondent City of Toronto (City). On January 7, 2013, the applicant attended a court house and while on the premises was subjected to verbal assault, including the use of a racial slur, by another member of the public.

3The Tribunal framed the issue for determination as follows:

The Application raises the issue of whether the City and [another respondent] discriminated against the applicant in terms of how they responded following the racial slur made by V.F.

4The applicant made a number of allegations of how the respondents had failed to respond adequately to the verbal assault that he experienced, including allegations of differential treatment in the investigation of the incident as well as an allegation that the investigations by all respondents were inadequate. The Application was substantially amended in the applicant’s Reply to include allegations that the City’s counter staff had failed to adequately respond to the verbal altercation allegedly occurring in front of them.

5The allegations of the applicant were in large part dismissed. However, the Tribunal found that while some of the City’s staff responded to the incident in an appropriate and non-discriminatory fashion, the applicant reasonably believed for a period of time that the City was in fact not going to respond appropriately and intervene in the verbal altercation which had occurred on its premises.

THE REQUEST FOR RECONSIDERATION

6There were two central issues for determination in this case. The first was whether or not the respondent City had an obligation as a service provider to intervene when advised of a verbal altercation, including a racial slur, between two members of the public, the applicant and another person referred to as V.F., on the respondent’s premises. The Tribunal determined that the Code imposed such an obligation on service providers.

7The Tribunal found as follows at para. 32:

None of the parties were able to point to any jurisprudence that has considered what duty, if any, a service provider owes to a customer who has been racially harassed by another customer. I have considered the submissions of the parties and find that the decision cited by the respondents regarding the context of a poisoned work environment applies here with the necessary modifications given the more limited control a service provider would have over its customers compared to the control an employer exerts over its employees. I find that in the circumstances of this Application, the City, as a service provider, had an obligation to take prompt, effectual and proportionate action when it became aware of the racial slur by V.F. towards the applicant. The response did not need to be perfect, but it did need to be reasonable in the circumstances.

8The City does not take issue with this conclusion.

9The second issue was whether or not the City met that obligation in the circumstances. Although much of the Application was not sustained, the Tribunal concluded that the City had not met its obligations. The rationale for this conclusion is found at para. 65:

Although I have found that Mr. Elannan responded promptly and reasonably to the incident involving the applicant and V.F., including the racial slur, I have also found that when N.P. (a member of the public) told Mr. Sanagustin (an employee of the City) there was a dispute and a racial slur had been used, he responded to the effect that if it escalated he would call security. I find that Mr. Sanagustin’s response in that regard was not reasonable and effectual, and was inadequate in terms of what is required under the Code in such circumstances. I have also found, as set out above, that it is more likely than not that the applicant understood City staff had been told about the racial slur by N.P., and City staff were not going to do anything in response. Understandably, this would have been upsetting for the applicant and could very well have contributed to his perception of how the incident was handled from that moment forward. I find that in not responding appropriately to N.P. advising that a racial slur had been used, and in the applicant coming to understand that City staff had been told about the racial slur and were not going to do anything in response, the applicant was subjected to discrimination, contrary to the Code, by the City.

10The critical finding of fact referred to in the preceding paragraph was made at para. 59 of the Decision:

I find, as set out below, that at or very near the same time N.P. was speaking with Mr. Sanagustin, Mr. Elannan was taking steps to address the situation between the applicant and V.F. In my view, however, whether or not Mr. Sanagustin would have spoken to Mr. Elannan if he had not already seen him on his way out the door, his response to N.P., to the effect that he would only call security if it escalated into something physical when he was told that there was a dispute and a racial slur had been used, was inadequate in the circumstances.

The Application alleges, in part, that a member of the public called to the attention of City staff the racial slur that V.F. made, and a staff member who was notified by persons in the waiting area about the racial slur took no action. At the hearing, the respondents essentially submitted that the communication between N.P. and Mr. Sanagustin was directly between them and did not involve the applicant. As to whether or not the applicant was subjected to discrimination by Mr. Sanagustin’s inadequate response to N.P., it seems to me that what is relevant is what the applicant reasonably understood had been communicated between N.P. and Mr. Sanagustin.

11The City takes issue with these conclusions. The City argues that the Decision is inconsistent with the jurisprudence on the obligation imposed on employers to protect against the creation of a poisoned work environment and imposes what amounts to a standard of perfection. The respondent takes issue with the conclusion that while its actual institutional response was found to be reasonable and appropriate in the circumstances it is liable for the fact that one of its non-managerial employees mis-spoke to a third party member of the public who in turn communicated to the applicant her impression that the City was not going to do anything to address the issue.

12The Request for Reconsideration provides the following reasons why the Tribunal should reconsider its Decision:

a. There are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

b. The decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general matter of public importance;

13The applicant opposed the Request.

THE LAW

14Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.

45.7(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

15The Tribunal has issued Rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008, last amended April 2014). Most relevant to this Decision is Rule 26 which states:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision

26.5. A Request for Reconsideration will not be granted unless the Tribunal is satisfied that

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

16The Tribunal’s Practice Direction on Reconsideration includes the following statements:

Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Reconsideration is not an appeal or an opportunity for a party to change the way it presented its case.

17As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

ANALYSIS AND CONCLUSIONS

18For the reasons that follow, I find that the Request as it relates to the imposition of training as a remedy should be granted. However, the Request related to the determination that the applicant experienced discrimination must be denied.

19As can be seen, reconsideration is a discretionary remedy but it is a discretion that is narrowly constrained by the Tribunal’s Rules and the interpretation of those Rules in the Tribunal’s cases. It is important to note that the parties have had a full opportunity to call their evidence and make their submissions on the evidence and the law. In this case a transcript of the evidence was produced before final argument and the parties were given an opportunity to make full written and oral submissions based on a transcript. There is a significant and over-riding public interest in the finality of Tribunal decision-making. Reconsideration is not an appeal and it is not an opportunity for the Tribunal to “get it right”.

20The question is not whether the Tribunal came to the correct conclusions about the evidence or whether another adjudicator might have come to a different conclusion but rather whether the Tribunal’s Rules authorise the extraordinary remedy of a reconsideration of a Final Decision. In my view, except in respect of the remedy of training ordered by the Tribunal, the Request must fail.

The Finding of Discrimination

21The respondent argues that the Decision is inconsistent with Tribunal jurisprudence and is a matter of general and public importance. I accept that the issue raised in the case, the extent of a service provider’s obligation to ensure a non- discriminatory environment surrounding the supply of its services, is a matter of general and public importance. Where the Request fails is in the first part of the Rule. In my view the Decision is not inconsistent with Tribunal jurisprudence.

22In Sigrist and Carson v. London District Catholic School Board et. al., 2008 HRTO 34, a leading case on the extent of the Tribunal’s reconsideration power, the Tribunal explained what “conflict” means in the Rule:

… I have considered what is meant by the requirement of a “conflict”. Given the public interest in finality of decision-making and economy of legal proceedings, as discussed above, a decision should not be reconsidered on the basis of an assertion of an apparent conflict with the result reached in another decision. There must be a conflict with “established” jurisprudence or procedure in the sense that there is a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules.

23I agree with and adopt this analysis of the Rule. In my view, it raises two issues with the Request. First, there cannot be said to be “an established understanding of the legal rules that apply” to these circumstances. The question of whether and to what extent a service provider is obligated to prevent discriminatory conduct between members of the public using its services is far from settled, and as such there are no settled legal rules from which the Decision has departed in a “clear and surprising” way. Second, the respondent’s argument is not really about the applicable legal rules but that the finding that the applicant believed that the respondent was not going to respond appropriately is incorrect and not supported by the evidence. The gravamen of the Decision is that because of the statement of one of the City’s employees communicated to him by another member of the public, the applicant reasonably believed for a period of time that the City was not going to respond. Whether or not I agree with that submission, it is not a proper basis to reconsider a Final Decision.

24For these reasons this aspect of the Request for Reconsideration is dismissed.

The Training Order

25The respondent argues that there is evidence potentially determinative of this issue that could not reasonably have been tendered at the hearing because the respondent was not put on notice that this remedy was in play. The applicant opposes this aspect of the Request, arguing that the issue of training was a live one during the hearing and the respondent had every opportunity to lead such evidence as it considered necessary to respond to the issue as it arose during the hearing.

26As near as can be determined from the Decision and pleadings, the respondent was not on notice that the applicant was seeking an order requiring training of City staff because in fact the applicant was not seeking an order regarding training. In the Decision there is an oblique reference to the applicant having raised training but not seeking a specific order. There is also no indication that the Tribunal put the respondent on notice that it was considering such an order.

27In my view while the Tribunal may of its own motion order any remedy that it considers appropriate, it seems evident that the Tribunal must put the parties on notice that such an order is being contemplated. Whether framed in the manner that the respondent has or as a failure of notice, the ordering of a remedy without notice to the affected party is one that cannot stand in my view and accordingly that part of the Decision is set aside.

28The respondent has proposed that this aspect of the case can be determined in writing based on documentary and written evidence and submissions. In the absence of any comment from the applicant on this aspect of the Request, this appears to be an appropriate procedure.

Orders

29The Tribunal makes the following Orders:

a. The Request as it relates to the finding that the applicant experienced discrimination is denied.

b. The Request as it relates to the Order requiring training is granted. The respondent will deliver and file any further materials in respect of this issue it intends to rely upon within 21 days of the date of this Reconsideration Decision. The applicant may deliver and file any responding submissions within 14 days of receiving the respondent’s materials.