Gregory Harris-Saunders v. City of Toronto, 2016 HRTO 700

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gregory Harris-Saunders Applicant

-and-

City of Toronto, Rob Gillis, Danny Fieldhouse, Ron MacDonald and Huntley Cowie Respondents

-and-

Toronto Civic Employees Union, Local 416 Intervenor

DECISION

Adjudicator: Josée Bouchard Date: May 24, 2016 Citation: 2016 HRTO 700 Indexed as: Harris-Saunders v. Toronto (City)

APPEARANCES

Gregory Harris-Saunders, Applicant Self-represented

City of Toronto, Rob Gillis, Danny Fieldhouse, Ron MacDonald and Huntley Cowie, Respondents Kerry Kitchura, Counsel Jennifer Boyczuk, Student-at-law

Toronto Civic Employees Union, Local 416, Intervenor No one appearing

INTRODUCTION

1The applicant is a temporary seasonal contract employee with the City of Toronto, in the Toronto Water Division. One of his career goals was to obtain a drinking water certificate that would allow him to work as a drinking water operator. In August 2014, the applicant submitted a form to his manager, Rob Gillis (the “personal respondent”) in order to obtain this certificate. He maintains that the personal respondent refused to sign the form in part because of an injury he suffered in 2013.

2The applicant filed an Application on August 7, 2015, alleging discrimination with respect to employment because of a disability, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

3The issue in dispute is whether the applicant’s injury is a factor in the personal respondent’s decision to refuse to sign the Form.

BACKGROUND

4The following background information is not in dispute and is presented to provide context. Ontario Regulation 128/04, Certification of Drinking Water System Operators and Water Quality Analysts (“the Regulation”), made under the Safe Drinking Water Act, 2002, SO 2002, c. 32, establishes the criteria for certifying drinking water operators. Only persons holding a valid operator’s certificate can operate a municipal water system.

5Subsection 6(1) of the Regulation establishes four classes of operators’ certificates, designated as Class I, Class II, Class III and Class IV. Class I is the entry-level or lowest class. Subsection 7(1) of the Regulation provides “an individual may apply to the Director for the issuance of an operator’s certificate described in subsection 6(1)”. The Ministry of the Environment (“MOE”) Drinking Water Certificate Application Form (the “Form”) for a Water Supply and Distribution Drinking Water Certificate requires the signature of the applicant’s “manager or designated overall responsible operator”, and accordingly the applicant made arrangements to have the personal respondent, Manager of the District Operations Section, Toronto Water Division, sign the Form.

6The City of Toronto does not grant operators’ certificates. Its role is limited to signing the form used to obtain the certificate from the MOE.

7Schedule 2 of the Regulation describes the qualifications required for operators’ certificates, including the Class I Water Supply and Distribution Drinking Water Certificate (“Class I Certificate”) that the applicant wished to apply for. The qualifications for a Class I Certificate for a type of municipal residential subsystem are as follows:

1. Completed Grade 12 in Ontario or education that the Director considers equivalent;
2. Obtained a mark that the Director considers satisfactory in an examination approved by the Director relating to the functions performed by operators with Class I Certificates for a municipal residential subsystem;
3. Completed the course of study approved by the Director for an Operator-in-Training (“OIT”), unless the person held an OIT licence on August 1, 2005;
4. Has at least one year of experience as an OIT in that type of municipal residential subsystem after being certified as an OIT.

8The OIT Certificate is a classification that allows new operators to gain the one year experience required for a Class I Certificate.

9In addition to the Regulation, the MOE guidelines Obtaining Experience for Contractors (“the Guidelines”) provide that, for employees who are not full-time, such as the applicant, the MOE considers 1,800 hours of experience equal to full-time employment.

10I turn now to the merits of the case.

ANALYSIS AND DECISION

Credibility

11Much of the evidence regarding this case is not in dispute. However, where I have needed to evaluate the reliability and credibility of the witnesses’ respective testimony, I have relied on the following propositions discussed in Kinanga v. Toronto, 2016 HRTO 577, at para. 63:

5. “When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony.” Reliability is influenced by a witness’s ability to “accurately observe, recall and recount” events. Credibility goes to the propensity to tell the truth or the “sincerity” of the witness. See R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (ON C.A.) at p.205

6. Credibility can be determined by evaluating whether the story provided by the witness is consistent with the “preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions:” see Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.)

7. In evaluating the credibility or reliability of evidence, one looks to a number of interrelated factors such as its probability, logical connection with other findings and support from independent evidence. In evaluating the credibility of a witness, one looks to such factors as the ability to “perceive and recall,” level of candour (or evasiveness) and “attitude towards the parties.” See Visic v. Elia Associates Professional Corporation, 2011 HRTO 1230 at para. 54

8. “A finding of lack of credibility or reliability with respect to one aspect of a witness’s testimony does not automatically render the entirety of the witness’s evidence as incredible or unreliable.” See Visic, supra.

12Only the applicant and personal respondent testified.

13Although the applicant presented his evidence honestly, I have concerns about the reliability of his testimony. The applicant often misunderstood the drinking water certification process, admitted to having made mistakes on his Form and often presented contradictory evidence. Although this case refers to the discrete allegation related to the application for a Class I Certificate, the dispute between the applicant and his employer is long standing. Some of the applicant’s allegations of harassment and discrimination, dismissed for delay, go back to 2013. There is also an ongoing dispute between the applicant and his employer related to a Workplace Safety and Insurance Board matter that began in 2013. The applicant found it difficult to differentiate between this case and his other legal battles, and I find his view of the issues before me distorted as a result.

14The personal respondent has been employed with the City of Toronto for thirty-three years, has been a supervisor and then manager since 1999 in the Toronto Water Division, and has expertise in the certification process. He was able to describe the certification process, his role in it and the alleged incidents in a straightforward and consistent fashion without hesitation. I find his evidence more reliable than the applicant’s.

Onus

15The applicant bears the legal onus of establishing discrimination on a balance of probabilities. To successfully establish discrimination, an applicant must prove that it is more probable than not that discrimination was a factor in the respondent’s actions. Peel Law Association v. Pieters, 2013 ONCA 396 at para. 83.

Adverse Treatment because of Injury

16The main issue before me is whether the respondents adversely treated the applicant because of an injury. It is undisputed that the applicant suffered a work injury on June 12, 2013. The applicant testified that he has not worked since July 2014, and he suffers a chronic medical condition due to that injury.

17The applicant received his OIT Certificate in August 2011. In 2014, out of concern that his OIT Certificate was about to expire and knowing it is a prerequisite to an application for the Class I Certificate, he decided to apply for his Class I Certificate.

18The applicant thought he satisfied all the requirements for the Class I Certificate, including the one year experience as an OIT. The applicant testified that he based this belief on an email exchange with the personal respondent’s Support Assistant. In January 2014, he had asked her how many hours he needed to become an operator. The Support Assistant answered: “I have attached your training records. You have enough training hours for your Water (90 hours) but not Wastewater (120 hours).”

19The applicant understood this to mean that he had the required one year operating experience. However, this was a misapprehension, as the Support Assistant was referring to training hours (the third requirement for a Class I Certificate) and attached the applicant’s training record, not the applicant’s experience record. When presented with this information in cross-examination, the applicant appeared confused but accepted the explanation.

20The applicant testified that qualifying for the Class I Certificate was his goal; it was everything he had been working for since becoming an OIT. He believed that the Class I Certificate would increase his opportunities for positions that were less physically demanding, for advancement and for a chance to become a full-time employee.

21The application process for the Class I Certificate includes completing the Form, which requires an applicant to provide confirmation that he or she has relevant valid operating experience for a Class I Certificate and to sign a declaration. Before the Form is submitted to the MOE, the applicant’s manager or designated overall responsible operator must sign it, attesting that the employee has met the required criteria, including the required hours of valid operating experience.

22The applicant completed the Form and delivered it to the personal respondent for signature on August 20, 2014. It is not disputed that the applicant satisfied the first three requirements: the grade 12 education, the examination and the course of study.

23In the section related to the valid operating experience, the applicant indicated accumulated experience from July 27 to October 30, 2012 and from April 17 to October 17, 2013 but then under the rubric “Total Years/Months” he entered six months of valid operating experience. The applicant knew at the time that he required 1,800 hours of valid operating experience, the equivalency of one year, to qualify for the Class I Certificate.

24The personal respondent testified that when he reviewed the Form, he thought the applicant might have inaccurately entered the operating experience dates. The applicant had crossed out the April start date for his first contract in 2012 and replaced it with a July date. The personal respondent wondered about this, as temporary seasonal contracts usually begin around April each year and the April start date for the 2012 contract was more likely accurate. However, in addition to the dates of each contract, the Form requires applicants to include the total months or years of operating experience. To this, the applicant had clearly entered six months, which was short of the required 1,800 hours operating experience. As would be his practice, the personal respondent returned the Form to his Support Assistant and advised her that the operating experience period was insufficient.

25The personal respondent maintains, and the applicant agrees, that it is the applicant’s responsibility to provide accurate and complete information in the Form. The personal respondent receives approximately 30 certification forms each year and his role is to review and sign the form if applicant satisfies the requirements. It is not for the personal respondent, for example, to research and confirm an applicant’s hours of experience. He has declined to sign forms in the past, perhaps six times, because of insufficiency of operating experience or training requirements on the face of the application.

26On August 22, 2014, when the applicant attended at the office to pick up the signed Form, the Support Assistant indicated that the personal respondent required more time to consider it.

27A few hours later, the Support Assistant phoned the applicant to let him know that he did not have sufficient hours of operating experience. As the hours of operating experience are counted from the date of the OIT, the applicant asked the Support Assistant for his OIT date, which she confirmed as July 29, 2012. The applicant contacted Ontario Water Wastewater Certification Office which is responsible for processing certificates, and confirmed August 29, 2011 as the OIT date.

28The applicant contacted the Support Assistant to correct this date, as he believed the date to be wrong in her files. The applicant testified that the Support Assistant informed him the personal respondent would not sign the Form because he had an injury and insufficient operating experience.

29The applicant testified that when he went to pick up the Form on August 22, 2014, he spoke briefly with the personal respondent who indicated that he would not sign the Form because of his injury. The applicant maintains that the encounter was very brief but made him feel uncomfortable. He believes that the personal respondent never intended to sign his Form.

30The personal respondent holds a professional license from the MOE. He testified that it would have been illegal for him to provide false information by signing the Form. He did not recall the exact date of the conversation with the applicant, but he believes he told the applicant his required experience was insufficient. The personal respondent denied saying that he would not sign the Form because of the applicant’s injury. He also did not recall telling the applicant that there were mistakes on the Form. The personal respondent testified that if the applicant had submitted a revised Form with the sufficient operating experience, he would have signed it.

31The applicant admitted in testimony that he made mistakes in his Form, but was not told this at the time. He maintained that a learning disability and lack of assistance with completing the Form made it very difficult for him to gather the required accurate information. There is no indication, however, that the applicant disclosed his learning disability to the personal respondent or asked for assistance.

32The applicant did not correct the Form to include all of his post August 2011 OIT experience as he was not informed at the time that there appeared to be mistakes on his Form or that he could correct and resubmit it.

33The applicant testified that he never provided the personal respondent with medical information about his injury, as it was not the personal respondent’s role to process such information. The applicant explained that, in his view, the personal respondent knew about his injury because he had provided his medical documentation to his superior who reported to the personal respondent. The applicant pointed to an exchange between a Human Resources Consultant at the Occupational Health, Safety and Disability Management office and a Supervisor at the Toronto Water Division about his Workers Safety and Insurance Board application and his injury, to argue that the personal respondent knew about it.

34I find there is no indication that the applicant’s injury was a factor in the personal respondent decision not to sign the Form for the following reasons.

35The applicant showed a high level of mistrust of his employer. He testified that he believed the City of Toronto was excluding him from positions, more specifically the WMW3 position. However, the evidence demonstrates that the applicant had been recalled for three positions, including the WMW3 position, in 2015 and 2016. The applicant also had a very weak recollection of what transpired when he applied for the Class I Certificate. He could not recall whether he had consulted the MOE or the MOE guide to complete the Form, what information he provided on the Form and what documentation he included with the Form.

36The applicant could not provide contextual evidence of his interaction with the personal respondent on August 22, 2014. What he states he could remember was that when he picked up the Form, the personal respondent said either “you are injured” or “I will not sign because of your injury”. The applicant also testified he felt uncomfortable because this was a continuation of the employer’s negative attitude toward him. However, both the applicant and personal respondent testified that they rarely interacted with each other. Also, even if the personal respondent knew the applicant was injured, there was no indication that he had sufficient knowledge of the applicant’s injury or limitations to base his refusal to sign the Form on this. The evidence does not support the applicant’s assertion that the personal respondent refused to sign the Form because of the applicant’s injury.

37The requirements for a Class I Certificate are listed in the Regulation and an applicant’s health is clearly irrelevant to such an application. I accept the personal respondent’s evidence that he was only reviewing the Form for the sufficiency of the applicant’s qualifications and the applicant had entered insufficient qualifications to apply for a Class I Certificate.

38The personal respondent has been a supervisor and manager with the Toronto Water Division for over fifteen years and he holds a professional license from the MOE. I accept the personal respondent’s assertion that he would not have jeopardized his qualifications and professional credentials by signing a Form with insufficient operating experience and that appeared on its face to contain inaccurate information.

39I find that the personal respondent has not treated the applicant adversely because of his injury and there has been no violation of the Code. I do not make a determination as to whether the applicant’s injury is a disability under the Code.

40The Application is dismissed.

Dated at Toronto, this 24th day of May, 2016.

“Signed By”

Josée Bouchard Vice-chair