HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Raghbir Singh Sudan
Applicant
-and-
Canadian Union of Skilled Workers
Respondent
DECISION
Adjudicator: Douglas Sanderson
Indexed as: Sudan v. Canadian Union of Skilled Workers
APPEARANCES
Raghbir Singh Sudan, Applicant
Self-represented
Canadian Union of Skilled Workers and Geoff Denstedt, Respondents
Marissa Pollock, Counsel
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to membership in a vocational association because of race, colour, place of origin, citizenship and reprisal.
the Application
2The applicant describes himself as an Indian and that his religion is Sikh. The applicant is a licensed journeyman electrician with more than 10 years of experience. The applicant states that he has all the prerequisites to be a member of the respondent trade union (“the union”).
3The applicant states that he submitted a membership application to the respondent in April 2015 and was interviewed in a pub in Bowmanville, Ontario by the individual respondent Geoff Denstedt. The applicant did not hear from the union about his application for several months. Accordingly, he attended at the union’s office to inquire. He was advised that Mr. Denstedt would contact him. Instead, a different union official called and advised the applicant that he would not be offered membership. No explanation was provided for the rejection of his application, but he was advised that he could reapply.
4The applicant resubmitted his application on December 1, 2015, and did not receive any response. On January 18, 2016, the applicant attended the union office and met with Mr. Bill Gilroy. According to the applicant, Mr. Gilroy agreed to investigate and get back to him. Mr. Gilroy called the applicant about a week later and advised him that he was not offered membership because he did poorly in the interview. Mr. Gilroy was unable to provide specifics, but informed the applicant that he could resubmit his membership application in six months.
5The applicant sent a letter to the union on January 27, 2016 requesting a detailed explanation of the decision to reject his membership application, including a description of the questions he did not answer well. The applicant received no response.
6The applicant stated that he believed the respondents reprised against him because the union does not want to accommodate people like him. The applicant stated that whenever he visited the union office he observed that they were interviewing white people. He concluded that the union did not want to enrol immigrants from India who belong to the Sikh community.
The Response
7In their Response, the respondents stated that the union represents skilled workers across Canada. In Ontario, there are seven regional units. Each unit operates a hiring hall, from which it dispatches members to job sites in the region when employers who have a collective agreement with the union request workers. The regional recruitment committees periodically interview candidates in order to develop a pool of new members to add to its hiring hall list. In order to be interviewed, a membership candidate must be a journeyperson, i.e., a tradesperson who has the required “tickets” or certificates, plus the experience needed to work on the projects for which the union is providing workers. The union states that it is not uncommon for a membership candidate to wait for months before being contacted for an interview. Interviews are typically conducted by two volunteer members of the recruitment committee. Interviewers confirm an applicant’s qualifications and experience, but also assess whether the candidate will contribute to the union through participation and volunteering. Following an interview, the interviewers make a recommendation to the regional recruitment chair, who advises the candidate of the result.
8The respondents state that the applicant applied for membership in the union on April 29, 2015. The union confirmed receipt of his application by e-mail on May 1, 2015. The applicant had the minimum qualifications to be granted an interview. In September 2015, the applicant twice attended the union’s main office in Etobicoke, Ontario, and on another occasion contacted the office by phone. The applicant inquired about the status of his membership and wanted to know why he had not been contacted for an interview or granted membership. The union employees who dealt with the applicant found him to be demanding and aggressive, but they provided information about the interview process and followed up with the relevant recruitment committee.
9On October 7, 2015, Mr. Denstedt and Tom Seaver interviewed the applicant in Bowmanville. The interviewers considered the applicant to have performed poorly during the interview. In particular, they found him to be frustrated by the interview and repeatedly referred to his qualifications, which he believed entitled him to union membership. The interviewers concluded that the applicant was not a suitable candidate for membership. Luke Dennison, the Greater Durham Region Recruitment Committee Chair, communicated the decision to the applicant in early November 2015. During their conversation, the applicant was hostile and combative, insisting that he was qualified to be a member. Mr. Dennison informed the applicant that qualifications were not sufficient to become a member and advised that the applicant could reapply in six months.
10The applicant reapplied in early December 2015. In late January or early February 2016, the applicant again attended at the union office to inquire about the status of his application. The applicant was referred to Mr. Gilroy who undertook to find out what the applicant did wrong during the interview. Mr. Gilroy spoke with Mr. Denstedt, who described the applicant’s behaviour in the interview. Mr. Gilroy reported this information to the applicant, who did not accept the explanation.
Hearing
11The Tribunal held the hearing of this matter on January 18, 2017 and April 20, 2017. The applicant testified on his own behalf with the assistance of a Punjabi interpreter and the respondents presented six witnesses. Between them, the parties entered five documents into evidence.
The Applicant’s Evidence
12The applicant was affirmed and adopted the Application as his evidence. The applicant also gave the following evidence. The interview checklist, Exhibit 1, which purported to record his interview, was full of errors. The applicant stated that qualifications that he does hold were crossed off and the checklist indicated that he had qualifications he does not actually possess. The interviewers stated that they were looking for candidates like him because he had two licenses. The interviewers did not ask him technical questions, but the applicant answered all the questions put to him. There had been nothing wrong with his behaviour during the interview and the applicant denied that he had been combative. Mr. Denstedt advised the applicant to call him two days after the interview. The applicant did so, but received no response. The applicant attended at the union office about a month after the interview because he had not been informed of the outcome and was advised that someone would call him. Some time passed and Mr. Dennison called to inform the applicant that his membership application had been declined. Mr. Dennison advised that he could resubmit his application, but did not say that he had to wait six months. Accordingly, he reapplied right away. Thereafter, he attended the union office again and met Mr. Gilroy. Mr. Gilroy advised him that he had to wait six months to reapply. The applicant asked for the reasons for rejecting his application in writing, but received nothing until he received the respondents’ Response. The applicant stated that he believed that the Response was a fabricated version of events because it was the first explanation offered and because the union would not have invited him to reapply if he behaved so poorly in the interview.
13In cross-examination, the applicant acknowledged that Mr. Gilroy informed him that he was not offered membership because he performed poorly in his interview. The applicant agreed that Mr. Gilroy provided this reason before the applicant filed the Application. The applicant stated, however, that he was not given any details, which was not a satisfactory explanation. The applicant confirmed his view that a poor interview was not a good reason to reject him and that the only thing that mattered was his technical qualifications. The applicant also confirmed that he believed the respondent made up the explanation of his interview conduct after he filed his Application to this Tribunal. Counsel for the respondents suggested to the applicant that this view was incorrect because Mr. Gilroy advised him that the interviewers said he performed poorly in the interview and had been argumentative. The applicant denied this proposition. The applicant stated that he asked Mr. Gilroy to find out which questions the applicant did not answer, which Mr. Gilroy never did.
14The applicant stated in cross-examination that when he met Mr. Gilroy he was upset at being rejected and not given any reasons. Mr. Gilroy undertook to investigate and to get back to the applicant. The applicant also inquired about his second membership application and again Mr. Gilroy said he would investigate. According to the applicant, Mr. Gilroy assured him that he would not be discriminated against.
15The applicant followed up with Mr. Gilroy by telephone, but Mr. Gilroy had not had a chance to make inquiries. Mr. Gilroy later called the applicant. The applicant’s evidence was that Mr. Gilroy simply stated that his application had been rejected. When the applicant asked about the questions he answered poorly, Mr. Gilroy said he did not have this information. He then said he had to go to a meeting and hung up the phone.
16Counsel noted that the applicant had emphasized the lack of technical questions in the interview and asked him for an example of such a question that he thought the interviewers should have asked. The applicant stated that they asked only general questions about his experience and his two licenses. The applicant stated that he answered all questions put to him. When pressed to provide an example of a technical question that should have asked, that applicant stated that they could have asked him how to perform tasks. The applicant stated that they should ask technical questions if they were going to reject him on technical grounds.
17The applicant confirmed that he had become a member of two other unions, the Christian Labour Association of Canada (“CLAC”) and the Labourers Local 183, on the basis of his certificates and tickets without an interview. The applicant stated that he had never heard of union membership being denied because of behaviour in an interview. He noted that he had been interviewed by the IBEW.
18The applicant denied that he had interrupted the interviewers during their discussion. He did ask for clarification, but only after they had finished speaking. He could not recall an example of such a clarifying question.
19The applicant confirmed that he named Mr. Denstedt as an individual respondent because he understood that Mr. Denstedt rejected his application. He agreed that Mr. Denstedt was acting in his capacity as a representative of the union.
20The applicant confirmed that he believed the respondent fabricated Exhibit 1 after he filed his human rights Application. He agreed that this was a very serious allegation, but he was comfortable making it because of the errors on the form. Specifically, he noted that some qualifications he does have were crossed out and some qualifications he does not have were added, e.g., welding.
21Exhibit 1 is a CUSW New Member Screening Checklist, which, as the name indicates, is a checklist listing several qualifications and questions about an applicant’s attitude and experience. Exhibit 1 was the checklist filled out during the applicant’s interview. Some qualifications and experience questions are crossed out, some have checkmarks or a circle and some have no recorded answer. The interviewers also noted qualifications the applicant holds, but are not listed on the form, as well as comments about the applicant. The applicant stated that he does have a 309A certificate (denoting certain electrical qualifications) and Masters certification, but these are crossed out on the form. Supervisory and estimating experience were also crossed out, but the applicant stated he has experience in both. The applicant stated he did not have a welding certificate, but welding was checked off. He agreed that he advised the interviewers that he does have welding experience. He also agreed that he did not know what the lines crossing out items on the list meant, as he did not fill out the form. The applicant agreed that a 309A certificate was not necessary for the work of an Instrument and Control (“INC”) Technician, the work he would have done as a member of the union. He agreed that Masters, fire alarm, PLC (although good to have), welding and rigging qualifications were not needed for this work. He also agreed that “highest voltage” (which he did not have) and supervisory and estimating experience were not necessary for INC work.
22One of the comments on the form was that the applicant answered some questions with questions during the interview. Counsel asked him if this was true and noted, correctly, that the applicant had done this during his cross-examination. The applicant agreed that he had answered some cross-examination questions with questions in order to clarify the question put to him and to explain his answers. He denied having done so during the interview, although he agreed he did ask for clarification. He could not recall specific examples.
23The interview checklist also recorded a comment to the effect that the applicant often wandered off topic during the interview. Counsel put to the applicant that he had displayed this behaviour during the cross-examination and had to be directed to answer questions. The applicant acknowledged that this was true, but denied that he acted this way during the interview. He also agreed that he had interrupted the interpreter when she read his opening statement. The checklist recorded that the applicant had been “very interruptive” during interview, but he denied having interrupted anyone in interview.
24Counsel put to the applicant that the interviewers did not say that the union wanted him because he holds dual tickets. The applicant initially said that the interviewers did say this, but agreed what that what they actually said was that it was good to have millwright experience and it was good to have other tickets.
25In section 16 of his human rights Application, entitled “Important Documents You Have”, the applicant listed 14 documents. Most of the documents are certificates and documents attesting to the applicant’s technical qualifications. The applicant states in the Application that these documents prove that he fulfills all of the prerequisites for union membership. In cross-examination, the applicant confirmed that proof of his technical qualifications was all he needed to show to obtain union membership. When it was put to him that the union had a different view about what is required, the applicant stated that in 2010 someone from Skills for Change, a vocational training organization, gave the applicant different information.
26The applicant confirmed the statement in the Application that he believed the union was interviewing white people when he attended the union office because he saw white people going into meetings. It was his feeling that they were being interviewed. He agreed that he did not know who these people were or what they were doing. When asked why he would make this claim, he said he felt isolated and that the union did not want him. He stated no one was willing to take him in to speak. He agreed, however, that Mr. Gilroy did exactly that.
27The applicant agreed that he brought a binder containing all of his certificates to the interview, including those not related to INC work. The applicant offered to show his qualifications to the interviewers. He denied that he did so repeatedly or that he shook his binder at them on several occasions. The applicant agreed that he said that he was qualified to work because of his qualifications and tickets, but only once. The applicant went on to say that he also said that he should be a member because of his Canadian experience, qualifications and other experience. He denied that he spoke poorly of CLAC or of previous employers. The applicant denied that he was hostile when Mr. Dennison informed him that he had been rejected for membership.
28Purvi Desai is an employee of the union who provides administrative support, including intake of membership applications. At the time of the hearing, she had worked for the union for eight years. She was affirmed and testified as follows.
29Ms. Desai’s workstation is at the front office in the entrance. There is always someone stationed at the front desk. In her role, membership applications come to her. They can be filed online, by facsimile or by regular mail or e-mail. She ensures the proper paperwork has been submitted and forwards the application to the appropriate area. She then sends an acknowledgment to the applicant. In this case, she sent an acknowledgment to the applicant on May 1, 2015. Ms. Desai uploads applications onto the Internet portal where they can be accessed by the recruitment committee. Ms. Desai would do nothing further until hearing from the committee. If an applicant is approved for membership, she sends him or her a welcome package.
30Ms. Desai received the applicant’s application and sent it to the appropriate committee. The applicant later called to inquire about the status of his application. Ms. Desai did not have any information about his application and offered to follow-up for him. The applicant was concerned about the delay in the process, but she noted that delays are not uncommon since the committee members are volunteers who deal with applications as they are able. Ms. Desai sent Exhibit 5, an e-mail message, to Mr. Dennison on September 23, 2015, to follow-up and to inquire about the status of the applicant’s membership application and to provide the applicant’s telephone number. Mr. Dennison was the committee chair in the relevant region. Ms. Desai’s next interaction with the applicant occurred when he attended at the union office. The applicant walked in and began asking why his application had not been approved. Ms. Desai did not recall the specifics of their conversation, but described the applicant as loud, disruptive and demanding. Ms. Desai felt uncomfortable and did not know what to tell him. She advised him that membership decisions were not made at her location and her role was to do intake and process applications. Ms. Desai later spoke to Mr. Gilroy, who was not in the office at the time, about her interaction with the applicant after the applicant left. She advised him that the applicant had applied for membership and demanded answers she did not have. Mr. Gilroy told Ms. Desai to direct the applicant to him should the applicant returned to the office. Sometime later, the applicant returned to the office and Ms. Desai referred him to Mr. Gilroy who took him into the office. Several months later, Ms. Desai received another membership application for the applicant from Skills for Change. In cross-examination, Ms. Desai stated she did not respond to the application because the applicant had filed a human rights application against the union.
31At the times material to this Application, Luke Dennison was the Chair of the Greater Durham Area Recruitment Committee. He was affirmed and gave the following evidence.
32Mr. Dennison was in the Chair role for about two years. In that role, he would review the membership applications, upload them on the website portal and determine which candidates to interview. Mr. Dennison’s position in the union was voluntary; therefore, he reviewed applications on his own time. Mr. Dennison stated that the union tried to gather a group of candidates before scheduling interviews. Candidates were selected for interviews based on the demand in the area for their skills. In this case, there was a demand for INC Technicians and the union was trying to build a pool of workers to meet the demand. The applicant was selected and he was contacted to set up an interview. Mr. Dennison sometimes did interviews and stated that having two interviewers was preferred.
33Mr. Dennison never met the applicant in person, but spoke with him by telephone after his interview. Mr. Dennison introduced himself and informed the applicant that he had been in contact with Mr. Denstedt. Mr. Dennison informed him that the union would not accept the applicant as a member at that time. The applicant could reapply for membership in six months.
34Mr. Dennison’s evidence was that the applicant became angry. The applicant began speaking loudly and would not allow Mr. Dennison a chance to speak. The applicant demanded another interview. Mr. Dennison denied the demand, but reiterated that the applicant could reapply in six months. The conversation continued for about 10 minutes. The applicant demanded another interview and asserted that he should be a member because of his qualifications. Mr. Dennison explained that becoming a member was not just about qualifications, but also proper communication skills. Mr. Dennison stated that he understood that the applicant had acted in a similarly combative and demanding manner during interview. Mr. Dennison noted that the union operates on a participation model, which is necessary for it to function. The applicant showed no knowledge of the union at all and focussed solely on technical qualifications.
35Mr. Dennison spoke to Mr. Denstedt about the applicant’s interview three or four weeks after the fact. Usually, a standard letter is sent to a candidate within three or four days of an interview. For some reason, this was put off and no letter was sent. Because of the delay, Mr. Dennison thought it would be better if he called the applicant.
36In cross-examination, Mr. Dennison agreed that he informed the applicant that he had performed poorly in his interview, but did not provide specifics. Mr. Dennison agreed that the applicant stated that they had made the wrong decision. Mr. Dennison replied that the applicant was entitled to his opinion and he could reapply in six months. Mr. Dennison did not take any action to review the decision because did not feel it was necessary.
37Norda Davidson is employed by the union in the role of Security Clearance Coordinator. At the time of her testimony, she had been in the role for seven years. Ms. Davidson was affirmed and gave the following evidence.
38Ms. Davidson’s first interaction with the applicant was in early September 2015. The applicant attended the union office to follow up his application. Ms. Davidson was at the front desk, covering for Ms. Desai. Ms. Davidson advised the applicant that his application had been sent to the committee in his geographical area. The applicant asked when he would be interviewed and Ms. Davidson advised him that the person conducting interviews, Mr. Denstedt, was out of the country, and would follow up when he returned. The applicant stated that a friend of his had been approved for membership. Ms. Davidson replied to the effect that his friend was likely in a different area and may have been interviewed and accepted. The applicant insisted on an interview, but Ms. Davidson informed him that interview decisions were not made in the office and he had to be patient.
39Ms. Davidson’s second interaction occurred sometime later, when the applicant again attended at the office to demand an interview. Ms. Davidson was getting some tea and was in the front of the office. The applicant was speaking to Ms. Desai inquiring about the interview process and Ms. Desai gave the applicant the same information Ms. Davidson had provided about interviews. The applicant kept insisting on an interview and started to become loud. Ms. Davidson observed that Ms. Desai was becoming uncomfortable; therefore, Ms. Davidson interjected. Ms. Davidson told the applicant that they could not do anything for him, but they would follow up on the status of his application. The applicant eventually left, but was upset. In cross-examination, Ms. Davidson confirmed that the applicant had been forceful and agitated both times she observed him, and that he kept insisting that he be granted an interview, eventually becoming loud. Ms. Davidson stated that in her first interaction with the applicant he said he was a certified tradesperson and did not understand why he had not been interviewed. Ms. Davidson’s evidence was that she saw the applicant twice, once in early September and again in late September 2015. She was not aware of his subsequent visits to the office.
40As noted above, Geoff Denstedt was one of the two people who interviewed the applicant. He was affirmed and gave the following evidence. He began doing interviews for the union in in the spring of 2015. He was the Secretary of the Executive Committee at the time and was asked to participate in interviews. Mr. Denstedt recognized Exhibit 1, which was a screening checklist that also provided the basic format for the interview. Mr. Denstedt filled in the checklist based on the applicant’s answers. The union was interviewing for INC Technicians, which involves working with electronics and monitoring instruments, at lower voltages. Mr. Denstedt had recorded that the applicant held a 442A ticket, which is for an industrial electrician and is similar to a 309A qualification. He also recorded that the applicant had a 447A ticket, which is an INC Technician’s license. Mr. Denstedt was familiar with the different tickets from his work on apprenticeship and training committees. The 447A ticket was required to get an interview. Mr. Denstedt explained why several items on the checklist were crossed out. They were not interviewing for a 309A position. Masters and rigging qualifications were not pertinent to the position. Highest voltage qualifications were also not used by INC Technicians. Mr. Denstedt did not recall why “certificate of apprenticeship” or “fire alarm” was struck out. Mr. Denstedt checked off the qualifications the applicant had that were pertinent. He checked off welding because the applicant had experience welding, but not a certificate. Mr. Denstedt reported that the applicant had experience in various high hazard environments and that the applicant stated he worked well in those circumstances. Mr. Denstedt did not recall that the applicant was asked about his attitude toward safety, and no answer was recorded. Mr. Denstedt recorded that the applicant would like to participate in the union. Mr. Denstedt recalled that the applicant said that he would like to teach. Although not recorded, Mr. Denstedt believed that he had asked the applicant about his work location preference. This did not appear to be an issue because the applicant had worked in Alberta. Mr. Denstedt filled out the document during the interview and the interviewers made their recommendation after they discussed the applicant’s performance. Tom Seaver was the other interviewer. The latest anything was recorded on the form was the evening of the interview. Mr. Denstedt denied it was created after the Application was filed.
41Mr. Denstedt wrote the comment “Very Interruptive (sic) during Interview (sic). Answers some questions with questions, often wandering off From (sic) the topic.” The interview started well, but at a certain point the applicant began going off topic. The applicant was also adamant about his certificates and his résumé. The applicant eventually began to actively point to his résumé, which was in a binder he brought to the interview. The applicant kept reiterating that he was qualified. Mr. Denstedt said that this behaviour was a turning point in the interview. Although he could not give a specific example, Mr. Denstedt stated that the applicant would interrupt questions before he could finish. At the end of the interview, the interviewers gave the applicant a chance to ask any questions and explained that the interview was not for specific job, but for membership in the union. Mr. Denstedt gave the applicant his phone number if the applicant had any questions, which is something he did not usually do. Next, Mr. Denstedt conveyed their recommendation to Mr. Dennison, although he did not recall precisely when this occurred. He advised Mr. Dennison that they did not recommend the applicant because he seemed frustrated and had interrupted during interview. Mr. Denstedt had no further involvement with the applicant. Mr. Gilroy notified him of this Application, which is also when he learned about the applicant’s visits to the union office.
42In cross-examination, Mr. Denstedt agreed that the statement in his witness statement that the union was interviewing for Construction and Maintenance Electricians was wrong. Rather, they were looking for INC Technicians. Mr. Denstedt did not recall that the applicant called him after the interview, but did not deny that he may have. Mr. Denstedt agreed that he said that it was good that the applicant had multiple certificates. He denied stating anything about having the applicant help with recruiting. I asked Mr. Denstedt what changed during interview, since it had started well. Mr. Denstedt replied that it was when the applicant got up on the edge of his chair and began aggressively poking his résumé while repeating “I am qualified” over and over. Mr. Denstedt stated this behaviour threw him off.
43Tom Seaver has been on the union’s Recruitment Committee since 2007. He interviewed the applicant along with Mr. Denstedt. Mr. Seaver was affirmed and gave the following evidence. The union has regional units. Mr. Seaver is in the Durham Region and serves the Bowmanville area. Mr. Seaver recalled that Mr. Denstedt advised him of the interview with the applicant, which had been arranged by Mr. Dennison on short notice. Both he and Mr. Denstedt asked the applicant questions. The questions were based on the checklist, but based on the flow of the interview they could also move into other areas of discussion. There was only one checklist per interview, which Mr. Denstedt filled out.
44During the interview, the applicant seemed agitated and interrupted questions. When asked about qualifications, the applicant would tap his finder and state “I have it right here.” Mr. Seaver found the applicant’s demeanour to be aggressive. They also talked about the applicant’s experience with the CLAC. The applicant said he did not like CLAC, as it provided no representation. Immediately after the interview, Mr. Seaver and Mr. Denstedt discussed the applicant and decided not to recommend him for membership because of his attitude and interruptions.
45In cross-examination, Mr. Seaver stated that the union was interviewing for INC Technicians, and not Construction and Maintenance Electricians, as was set out in Mr. Seaver’s witness statement. Mr. Seaver did not recall whether all the areas on the checklist were addressed. He did not recall specific questions that he asked, but stated that he would have asked some questions since he does not just leave it to Mr. Denstedt. Mr. Seaver recalled that the applicant had a 309A license, but did not recall if he had a Masters. He did not recall why Mr. Denstedt checked off welding. Mr. Seaver agreed that the meeting ended cordially.
46Mr. Gilroy is a representative and a founding member of the union. He has a liaison role with the union stewards and gives them advice. Mr. Gilroy conducts collective bargaining with employers and assists with anything to do with the union. He works out of the main office. Mr. Gilroy was affirmed and gave the following evidence.
47Mr. Gilroy first heard about the applicant from Ms. Davidson. She mentioned that he had attended the office and had been loud. She tried to explain recruitment procedures, but the applicant would not accept her advice. Mr. Gilroy left it at that and took no action at the time. Sometime later, Ms. Desai came to Mr. Gilroy and said that the applicant had come in again. The applicant demanded that he should be a member of the union because of his qualifications. Mr. Gilroy had been on vacation when this incident occurred. Mr. Gilroy advised Ms. Desai to get him the next time the applicant came to the office.
48The applicant next came to the office in January 2016 and Ms. Desai informed Mr. Gilroy as instructed. Mr. Gilroy took the applicant to his office to discuss his issues. The applicant wanted to know why he had not been accepted for membership. Mr. Gilroy explained that he did not know why, but undertook to follow up and call the applicant back. The applicant also showed Mr. Gilroy his qualifications.
49Mr. Gilroy made inquiries and was advised that the applicant had performed poorly in the interview. Specifically, he spoke to Mr. Denstedt, who informed him that the applicant had interrupted and been disruptive during the interview. Mr. Gilroy called the applicant a short time thereafter and told him what he had learned. The applicant wanted to know what questions he had not answered well. Mr. Gilroy did not have that information, but in any event the issue had been the applicant’s behaviour. Nonetheless, the applicant repeatedly asked what questions he did not answer properly. Mr. Gilroy had to go to a meeting and advised the applicant of this. The applicant, however, continued to insist that Mr. Gilroy tell him what questions he could not answer. Unfortunately, Mr. Gilroy had to hang up to go to his meeting.
50Next, the union received a letter from the applicant demanding action within a week or he would commence legal proceedings. This letter is dated January 28, 2016, and was included with the applicant’s Reply. The union sought legal advice as a result. Mr. Gilroy was later informed that the applicant filed an Application to this Tribunal against the union. The union then received a membership application from Skills for Change on the applicant’s behalf. It was not unusual to receive membership applications through Skills for Change. Ms. Desai called Mr. Gilroy about the applicant’s membership application. Mr. Gilroy instructed Ms. Desai to inform Skills for Change that the applicant had filed a human rights application against the union. Mr. Gilroy understood that Ms. Desai did so and the Skills for Change representative apologized and did not pursue the membership application further.
51In cross-examination, Mr. Gilroy confirmed that the applicant had shown him his certificates, including one from Skills for Change. Mr. Gilroy denied that the applicant asked for a remedy for discrimination related to the rejection of his membership application. He also did not agree that he promised that the applicant would receive “fair justice.” Rather, he undertook to find out why the applicant was not recommended for membership. Mr. Gilroy strenuously denied that the applicant asked him to conduct an investigation into alleged discrimination. Mr. Gilroy stated that the applicant’s complaint had been that he was not given a reason for the decision not to offer him membership. Accordingly, Mr. Gilroy agreed to find out the reasons and report back to the applicant, which he did. When asked whether he considered the applicant’s qualifications, including his certificate from Skills for Change, Mr. Gilroy stated that it was not his role to assess the applicant’s qualifications or whether he should be a member.
Analysis and decision
52Section 6 of the Code provides:
Every person has a right to equal treatment with respect to membership in any trade union, trade or occupational association or self-governing profession without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.
53Section 8 of the Code provides:
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
54The applicant has the onus of proving that the respondent violated his Code rights on a balance of probabilities. To establish discrimination, the applicant must establish that he is a member of group protected under the Code, that he was subject to adverse treatment and that the Code ground was a factor in the adverse treatment. See Peel Law Association v. Pieters, 2013 ONCA 396. Clear, convincing and cogent evidence is required to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at paragraph 46. However, discrimination will most often be proven by circumstantial evidence and the applicant need not prove that the prohibited ground of discrimination was the sole factor leading to the discriminatory conduct. See Phipps v. Toronto Police Services Board, 2009 HRTO 877.
55The prohibition against reprisal protects individuals from intimidation and retaliation that might deter them from claiming and enforcing their rights under the Code. A reprisal claim is distinct from allegations of discrimination because an applicant must establish the respondent intended to punish or retaliate against the applicant. The Tribunal set out the elements of a successful reprisal application in Noble v. York University, 2010 HRTO 878 at paragraphs 33 and 34, as follows:
Thus, in a complaint or application alleging reprisal, the following elements must be established:
a. An action taken against, or threat made to, the complainant;
b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and
c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.
In addition, the following principles are relevant:
a. There is no strict requirement that the complainant has filed a complaint or application under the Code, and
b. There is no requirement that the Tribunal find the respondent did in fact violate the complainant’s substantive rights to be free from discrimination.
56As is described below, some of my findings of fact are based upon my assessment of witness’ credibility. In assessing credibility, I have applied the principles set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). At pages 356-357, the British Columbia Court of Appeal stated:
…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.
Other factors for assessing credibility include the witness’ motives, the witness’ relationship to the parties, the internal consistency of their evidence, and inconsistencies and contradiction in relation to other witnesses’ evidence: Cugliari v. Telefficiency Corporation, 2006 HRTO 7.
57I also have been assisted by the observations on credibility assessment made in R. v. Taylor, 2010 ONCJ 396, as follows (at paragraphs 58 to 60):
“Credibility” is omnibus shorthand for a broad range of factors bearing on an assessment of the testimonial trustworthiness of witnesses. It has two generally distinct aspects or dimensions: honesty (sometimes, if confusingly, itself called “credibility”) and reliability. The first, honesty, speaks to a witness’ sincerity, candour and truthfulness in the witness box. The second, reliability, refers to a complex admixture of cognitive, psychological, developmental, cultural, temporal and environmental factors that impact on the accuracy of a witness’ perception, memory and, ultimately, testimonial recitation. The evidence of even an honest witness may still be of dubious reliability.
All of this has been said many times before, including by Doherty J.A. for the Court of Appeal in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193, at 205:
Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness’s sincerity that is his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness’s testimony. The accuracy of a witness’s testimony involves considerations of the witness’s ability to accurately observe, recall and recount the events in issue. 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. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.
Depending on the circumstances, some portions of a witness’ testimony may be more credible or worthy of belief than other portions. Accordingly, I can, with good reason, accept all, some or none of any witness’ evidence: see R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 65.
58In my view, the applicant did not present any evidence that the decision to deny him union membership was connected to his race, colour, place of origin or citizenship. There is really no dispute that the applicant believed and continues to believe that he should have been granted union membership on the strength of his technical qualifications. The applicant acknowledged this several times in his testimony. Several of the respondents’ witnesses also testified that he stated he should be a member based on his qualifications. Several of the respondents’ witnesses also gave evidence about how the applicant repeatedly emphasized his technical qualifications.
59As is often the case, there was no direct evidence that the applicant’s race, color, place of origin or citizenship was a factor in the decision not to offer him membership. The circumstantial evidence the applicant pointed to was Exhibit 1, which he argued was fabricated and his evidence that the interview had gone well. The applicant contended that the respondents’ position that he did not perform well in interview was similarly fabricated. The evidence does not support these arguments. The foundation of the applicant’s belief that Exhibit 1 was a fabrication was that it was inaccurate. That is, some qualifications he does have were crossed out and some who does not have, i.e., welding, are checked off. The applicant acknowledged that, having not completed the form, he did not know what these markings met. He also agreed that the crossed out qualifications were not needed by an INC Technician. Mr. Denstedt confirmed that he crossed off irrelevant qualifications and checked welding because the applicant said he had experience in that area. In my view, this was a reasonable explanation in the circumstances. I found Mr. Denstedt to be a credible witness in that he did not embellish and was prepared to admit he could not recall some specifics about the interview. He also acknowledged errors in his witness statement. I was presented with no reason not to accept his evidence about Exhibit 1 and I do. Consequently, I find that Exhibit 1 was not fabricated after the fact by the respondents. In my opinion, the applicant’s allegation of fraud demonstrates a tendency on his part to jump to baseless and unreasonable conclusions.
60The applicant argued that the interview had gone well and that the interviewers agreed in evidence that the interview ended cordially. Both interviewers agreed that the interview began well and concluded professionally. However both Mr. Denstedt and Mr. Seaver testified that they were put off by the applicant, who began to act in an agitated, frustrated and aggressive manner in what was in effect a job interview. This behaviour was exhibited by tendency to interrupt and to emphasize his qualifications repeatedly. Neither interviewer embellished the applicant’s behaviour to make it seem more extreme. The behaviour observed by the interviewers was observed by each of the respondent witnesses who interacted with him, and, as counsel pointed out, was also on display during the hearing. In that regard, the applicant was sometimes argumentative and evasive in his testimony and did interrupt others inappropriately at times. The interviewers’ description of the applicant was that of a frustrated, impatient candidate, which is consistent with the evidence. The applicant clearly did not understand why he was being interviewed or believe that it was necessary, since he believed his qualifications were sufficient to gain membership. His repeated attendance at the union office demonstrated that he had run out of patience and was frustrated by the delay, perhaps not unreasonably. In my view, the behaviour attributed to the applicant is entirely consistent with his interactions with the union staff at the main office. I have found that the applicant tends to come to unsupported conclusions. He also exaggerated in some of his evidence. For example, the applicant testified that the interviewers said the union wanted candidates like him, because of his qualifications. In cross-examination, he agreed that the interviewers had merely said that it was good to have more than one ticket. The testimony of Messrs. Denstedt and Seaver did not suffer from these defects and, accordingly, I find their evidence to be more reliable than the applicant’s. I find therefore, that the applicant behaved in the manner attributed to him by the interviewers.
61The applicant also testified that he believed the union discriminated against him because he saw white people arriving for interviews at the union office. He acknowledged, however, they did not actually know why the people he observed were at the union office. The respondents’ evidence was that interviews were and are performed by the area recruitment committees and the applicant’s evidence provides no basis for questioning the respondent’s position. Rather, the applicant’s evidence indicates that he jumped to a self-serving conclusion, which gives further reason to question his ability to observe and draw reasonable inferences.
62In his Application, the applicant based his reprisal allegation on his observation that the union was interviewing white people at the union office. As described above, this observation was not well founded. On the other hand, Ms. Desai’s evidence was that she received another membership application for the applicant through Skills for Change. Ms. Desai confirmed in cross-examination that she did not respond to this membership application because the applicant filed a human rights Application against the union. Mr. Gilroy’s evidence was that he was aware of the applicant filed a human rights application against the union. Ms. Desai later informed Mr. Gilroy that she had received a membership application for the applicant through Skills for Change. Mr. Gilroy instructed Ms. Desai to inform Skills for Change that the applicant filed a human rights application against the union. Mr. Gilroy understood that Skills for Change withdrew the membership application as a result. This evidence is troubling because it indicates the union was unwilling to consider the applicant because he filed a human rights application against it. This evidence was not explored in depth, as neither witness was asked to explain their actions regarding the applicant’s application through Skills for Change. Without such evidence, I find that there is insufficient basis to infer that the respondent’s personnel intended to punish the applicant for filing an Application. For example, it appears that the union did not specifically refuse to consider the application but that Skills for Change withdrew it when informed of the human rights application.
63The applicant argued that Mr. Gilroy did not conduct a proper human rights investigation regarding the decision not to offer him union membership. The applicant pointed to the union’s constitution, which sets out a human rights complaints procedure. The respondents argued that Mr. Gilroy was never asked to conduct a human rights investigation. Rather they submitted that he agreed to find out why the interviewers did not approve the applicant for membership, which he did. The respondents submitted that the applicant was not a member of the union; therefore, the provisions of the union’s constitution were not applicable. In my view, the evidence indicates that the applicant did not raise human rights allegations with Mr. Gilroy. The Application contains no allegation that applicant identified human rights concerns to Mr. Gilroy. Rather, the applicant states he attended at the union office on January 18, 2015 because he had not heard from the union regarding his recent application. Mr. Gilroy agreed to investigate and later informed the applicant that he had been rejected because he performed poorly in the interview. The applicant stated that he sent the union letter in which he required a detailed analysis of the decision to reject his membership application and an explanation of the questions he did not answer well. The letter in question is dated January 28, 2015, i.e., shortly after the applicant met Mr. Gilroy, and was included with the applicant’s Reply. As described in the Application, the letter seeks a detailed explanation for the rejection of his membership application, which Mr. Gilroy had been unable to supply. There is no indication in either the Application or the applicant’s demand letter that he was alleging discrimination on Code grounds or that he wanted the union to conduct an investigation. Both the Application and the letter of January 28, 2015 are entirely consistent with Mr. Gilroy’s evidence that he undertook to find out why the applicant had been rejected for membership and that there was no discussion of human rights issues. Mr. Gilroy also testified in a straightforward manner, whereas the applicant displayed a tendency to embellish and to jump to unsupported conclusions. In these circumstances, I find Mr. Gilroy was a more reliable witness and prefer his evidence over the applicant’s on this issue. I find that the applicant did not allege that the denial of his membership application was discriminatory when he met Mr. Gilroy or that he asked Mr. Gilroy to conduct a human rights investigation.
64The respondents have taken the position throughout this proceeding that Mr. Denstedt was not a proper party to this proceeding and should be removed as a respondent. The respondents were content, however, to have this issue addressed in the Tribunal’s final Decision.
65Section 46.3 of the Code provides that an organization shall be deemed to be liable for any acts or omissions done in the course of employment by an agent of the organization. The Tribunal may remove a party under Rule 1.7(b) of the Rules of Procedure. Having regard to the factors to consider when determining whether it is appropriate to remove a personal respondent, as set out in Persaud v. Toronto District School Board, 2008 HRTO 31, and reviewing the allegations set out in the Application in this case, I find that Mr. Denstedt was at all times acting in his capacity as a representative of the union and not in his personal capacity. I further find that there was no compelling reason to include Mr. Denstedt as a respondent to this Application. Consequently, it is in my view appropriate to remove Mr. Denstedt from this Application and to amend the style of cause accordingly.
Order
66The Tribunal orders as follows:
Mr. Denstedt is removed as a respondent to this Application and the style of cause amended accordingly; and,
The Application is dismissed.
Dated at Toronto, this 28th day of September, 2017.
“Signed by”
Douglas Sanderson
Vice-chair