Backovic v. Ontario (Labour), 2016 HRTO 898

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Zoran Backovic

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Labour and Sinem Askin

Respondent

DECISION

Adjudicator: Brian Cook

Date: July 7, 2016

Citation: 2016 HRTO 898

Indexed as: Backovic v. Ontario (Labour)

APPEARANCES

Zoran Backovic, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Labour and Sinem Askin, Respondents

Steven Succi, Counsel

1This Application alleges discrimination with respect to services because of sex, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant also wants to amend the Application to include the ground of creed.

2The Application alleges that the personal respondent, who is an Employment Standards Officer, discriminated against the applicant in the way she conducted a hearing and in her decision. The applicant alleges that the Ministry of Labour then discriminated against him in the manner in which it responded to his complaints.

3The Tribunal directed that a summary hearing be held to determine if the Application should be dismissed in whole or in in part as having no reasonable prospect of success or because of the legal doctrine of adjudicator immunity. An in-person summary hearing was held on June 16, 2016. The applicant appeared at the hearing. The respondents were represented by counsel.

Background

4The applicant was employed as a stock room clerk. He was initially placed with the employer by a temporary help agency and was then hired by the employer on December 1, 2014. His employment was terminated on January 29, 2015, on a “without cause” basis. The employer took the position that the applicant was not entitled to any benefits under the Employment Standards Act in respect of the termination because the employment was terminated during a probation period.

5The applicant filed a claim for his statutory entitlements with the Employment Standards Branch of the Ministry of Labour. The matter came before an Employment Standards Officer, who held a fact finding meeting on June 17, 2015. The Employment Standards Officer issued a decision on July 7, 2015. The decision dismissed the applicant’s claim. The applicant filed this Application on August 10, 2015, alleging discrimination by the Employment Standards Officer. He also appealed the decision of the Employment Standards Officer to the Ontario Labour Relations Board (OLRB). The Application at this Tribunal was deferred to the process at the OLRB. He eventually came to a settlement with the employer regarding the OLRB process. At the applicant’s request, this Application was then re-activated.

6During the processing of the appeal to the OLRB, the applicant had encounters with various members of the Ministry staff. These encounters led to numerous Requests for Order During Proceedings to this Tribunal, seeking to amend the Application to include allegations of discrimination on the part of Ministry staff.

The allegations about the fact-finding meeting

7The applicant alleges that when he arrived at the fact-finding meeting, the representatives of the employer, who were three women, were already in the room chatting with the Employment Standards Officer. He alleges that the Employment Standards Officer asked him to tell his story but after about 10 minutes, she told him to stop and then told him that he was not allowed to say anything more during the meeting unless it was to answer questions from her. He alleges that at the end of the meeting, he was told to leave and that the representatives of the employer remained in the room with the Employment Standards Officer. He waited outside the building and observed that the employer representatives left the building about 25 minutes after he left. He believes that they spent that time talking to the Employment Standards Officer.

8The respondents dispute the applicant’s allegations about what happened at the meeting.

9At the summary hearing, I asked the applicant to explain what evidence would be available to show that these alleged events related to either his sex or his creed, in the event that he was permitted to amend the Application. The applicant said that he believes that discrimination on the basis of sex and creed is the only explanation that he has been able to think of that would explain how he was treated during the meeting and the decision that was issued by the Employment Standards Officer.

10The applicant said that at the fact-finding meeting he did not suspect that creed was involved and only realized that he had been discriminated against because of creed when he got the decision. In regard to sex, he alleges that during a break in the meeting he was looking for the washroom. He saw the Employment Standards Officer and asked where the men’s washroom was. He alleges that she told him she did not know where it was. When he challenged her about this, she allegedly told him that she does not like men and only likes women. The applicant concedes that he has no way to prove that this comment was made apart from his own evidence. The respondents deny that the alleged remark was made.

Allegations about the decision

11The applicant indicated that he was shocked when he received the decision because his allegations of what happened at work were disregarded and the employer’s version of events was accepted. He believes that the reason for this is that the Employment Standards Officer did not like him because he was a man and that she preferred the employer because its representatives were women.

12The allegation of discrimination on the basis of creed arose when the applicant realized that certain comments that he made in emails and that he had posted in the workplace were taken by the Employment Standards Officer as legitimate reasons supporting the termination of his employment when in fact they were statements of his creed. I asked the applicant to clarify how he identifies his creed. He said that he believes in God and Karma. By Karma, he means that bad behaviour during life is punished and good behaviour is rewarded. He explained that when he posted things or said in email things such as “God is watching” in responding to criticisms of his actions, he was simply stating his creed-based beliefs. In her decision, the Employment Standards Officer found that this was one of several “compelling business reasons” for the termination of the applicant’s employment. The applicant believes that this is evidence of discrimination on the grounds of creed because the comments he made such as “God is watching” were merely an expression of his creed and in particular, his understanding of Karma.

Events after the decision of the Employment Standards Officer

13When he received the decision of the Employment Standards Officer, the applicant was very upset and he sent a number of communications expressing his displeasure. One of these was an email dated July 13, 2015. That email concluded with an observation that the applicant now could understand news stories about people who had been fired who then came to the workplace and killed people. He said that he understood the same thing in relation to Employment Standards officers who wrongly accept that things are reasonable.

14This email was discussed at the summary hearing. The applicant indicated that anyone who knows him would know that he would never harm anybody. However, he agreed that if someone did not know him they might find the comments in the email to be concerning. The Ministry, to whom the email was sent, called the police about the email. The applicant was then contacted by the police. He said that that the officer was satisfied with his explanation and told him that everything was fine.

15The applicant alleges that the decision to call the police was motivated by discrimination and an attempt to discredit his complaints about the Employment Standards Officer.

16As noted, the applicant filed an appeal of the Employment Standards Officer’s decision with the OLRB. In preparing for the appeal, he decided that he wanted to call five people from the employer as witnesses and also the Employment Standards Officer. He called the OLRB about this and was advised that he should request summonses, and he asked for six. He was not required to say what the summonses were for or who he intended to summons.

17When he got the summonses, he noted that he was required to serve them personally. He contacted the employer and the Ministry and asked for the home addresses of the five people from the employer and of the Employment Standards Officer from the Ministry. Neither the employer nor the Ministry was prepared to give him this information. He then sent an email to a number of people, including the six people he wanted to summons, advising that since he had been unable to find out their home addresses, he intended to follow each of them home to find out where they lived so that he could serve them with a summons. He also indicated that he intended to bring two “bodyguards” with him to ensure there were no problems.

18This email prompted the Ministry to call the police again and the applicant again had to speak to an officer. According to the applicant, the officer agreed with him that he had to know the home address of the individuals and told him that no further action would be taken by the police. However, on two subsequent occasions, he was contacted by the police even though there had been no new developments. They seemed to be following up on the earlier calls, but the applicant suspects that the Ministry called the police on these later occasions as well as part of the plan to discredit him. Counsel for the respondent said there is no record of any call to the police around the times of the third and fourth visits by the police.

19Ultimately, the issue of the summons became irrelevant as he settled the OLRB matter with the employer in advance of the hearing.

20The applicant concedes that all these events are not directly related to discrimination by the Ministry on the grounds of sex or creed. However, he suggests that they are indirectly related to discrimination because they were done as a way to try to discredit his complaints about the Employment Standards Officer, which included allegations of discrimination because of sex and creed.

21The applicant has also had issues with a number of other individuals, including counsel for the Ministry and Tribunal staff and adjudicators. However, these matters are beyond the scope of the summary hearing held on June 16, 2016.

The issues in this summary hearing

22The Tribunal’s Practice Direction on Summary Hearings states:

A summary hearing usually considers:

• whether, assuming all of the allegations are true, the Application has no 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; and/or

• whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated by the respondent(s). The applicant has to show that he or she can make a link between the event that led to the Application and the alleged ground(s) of discrimination.

23In addition, as noted, in this case, there is an issue about whether some of the applicant’s allegations are covered by the doctrine of adjudicator immunity. The principle of adjudicator immunity and how it might apply in this case was explained in a Case Assessment Direction dated February 19, 2016:

It appears that the respondents’ actions being challenged in the Application may be covered by the doctrine of adjudicative immunity. This doctrine prohibits legal proceedings against judicial and quasi-judicial actors that are based on their actions as adjudicators or decision-makers. The doctrine is rooted in the principle of judicial independence, the purpose of which is to ensure that judicial and quasi-judicial actors are free to execute their decision-making duties with independence and without fear of consequences. See, for example, Taucar v. University of Western Ontario, 2013 HRTO 597, and Hazel v. Ainsworth Engineered, 2009 HRTO 2180. The parties will be asked to make submissions on this issue.

Conclusions

24The doctrine of adjudicative immunity applies in this case with respect to the decision of the Employment Standards Officer. The Officer is a statutory decision-maker who was charged with the adjudication of the applicant's case. See, Re Downing and Graydon et. al. (1978), 1978 CanLII 1424 (ON CA), 21 O.R. (2d) 292 (Ont. C.A.)

25Even if the allegations about the Employment Standards Officer were not covered by the doctrine of adjudicative immunity, I find that the applicant would have no reasonable prospect of showing that the things he alleges about the meeting and the decision were discriminatory because of his sex or his creed.

26With regard to sex, the only allegation that the applicant makes that directly involves his sex is the alleged comment by the Employment Standards Officer that she did not like men when he asked her where the washroom was. The respondents deny that this comment was made. The applicant concedes that, apart from circumstantial evidence, he has no evidence or any evidence that may reasonably be available to him that supports his allegation that the comment was made.

27The circumstantial evidence that the applicant says supports his allegations consists of the findings in the decision and the manner in which he says the hearing was conducted, including the allegations that he was not allowed to speak and that that Employment Standards Officer spoke privately with the employer’s representatives.

28Even if the applicant could prove that these things occurred, they would be evidence of an unfair hearing process, but would not be evidence of discrimination because of sex or creed. The applicant believes that discrimination must have occurred because he cannot think of any other explanation for the unfair treatment. In itself, such a belief is obviously not evidence of discrimination. This Tribunal has no jurisdiction to supervise other administrative proceedings to ensure they are fair.

29Many of the events in this case that the applicant objects to, including findings by the Employment Standards Officer, involve an interpretation of the applicant's words and actions. An interpretation of some of the applicant’s words and actions is that he made threats. That interpretation provides support for some of the findings by the Employment Standards Officer in her decision and the decisions of the Ministry to call the police. The applicant does not accept that interpretation. However, this does not establish evidence that the way his words and actions were interpreted was discriminatory. For example, the findings of the applicant's comments in the workplace that “God is watching” could be, as the applicant maintains, a neutral statement of his belief. However, since the remark was made in the context of some conflict, they could also be interpreted as having a threatening tone. There is no doubt that the applicant’s remarks in his email to the Ministry about killing in the workplace could have reasonably been seen as threatening, and a reason to call the police, even if that was not the applicant’s intention.

30Similarly, the information that the applicant sent indicating he intended to follow the Ministry employees on their way home accompanied with two bodyguards could very reasonably have been understood as a cause for concern and a reason to ask the police to speak to the applicant. This is true even if the applicant did not intend the information to be threatening.

31For these reasons, I find that there is no reasonable prospect that the applicant could successfully show that he experienced discrimination on the basis of sex. For the same reasons, there is no reasonable prospect that the applicant could show that he experienced discrimination on the basis of creed if the Application were to be amended.

32I find that the allegations about the conduct of the Ministry staff also have no reasonable prospect of success. The applicant did not point to any evidence in his possession or that may reasonably be available to the applicant that the allegations are connected to the applicant’s sex or creed and are instead about the unfair way he believes he was treated. Even if there was evidence that the applicant was unfairly treated, there is no reasonable prospect that he could show that the unfairness had anything to do with his sex or creed.

33For these reasons, the Application has no reasonable prospect of success and the same is true if the Application were amended to include the allegations the applicant has added since the Application was first filed. The Application is dismissed.