HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Roland Litho
Applicant
-and-
Consortium de transport scolaire d’Ottawa and Dominique Cuerrier
Respondents
INTERIM DECISION
Adjudicator: Josée Bouchard
Indexed as: Litho v. Consortium de transport scolaire d’Ottawa
APPEARANCES
Roland Litho, applicant
Representing himself
Consortium de transport scolaire d’Ottawa, respondent
Paul Marshall, counsel
Dominique Cuerrier, respondent
John R.S. Westdal, counsel
Introduction
1The applicant has filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that he was discriminated against with respect to employment because of race, colour and ethnic origin. He alleges that he was dismissed as a result of a complaint related to his colour.
2On February 1, 2017, the Tribunal issued a Case Assessment Direction stating that after reviewing the file, the Tribunal had decided to hold a summary hearing to determine whether this Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.
3The Tribunal held a summary hearing on October 18, 2017, for the following reasons:
a. It appears that the applicant may be unable to prove that there is a connection between what the respondents are alleged to have done, and the grounds of race, colour and ethnic origin cited in the Application. For example, the applicant may believe that the respondents’ conduct is connected with the grounds cited, but it is not clear that there is evidence available to the applicant to prove the connection. The focus of this inquiry is on the evidence the applicant has or may be able to obtain; and
b. The issue the applicant is raising does not appear to fall under the Code. The focus of this inquiry is on the legal basis for the applicant’s claim and whether or not there is any reasonable prospect the allegations may amount to a Code violation.
PRELIMINARY QUESTION
4At the beginning of the hearing, the applicant informed the Tribunal that he had not received the documents filed by the respondents for the purpose of the summary hearing. The respondents confirmed that they had provided their documents to the applicant’s lawyer within the established timeline. They maintain that it was the responsibility of the applicant’s lawyer, when he withdrew from the case, to send the file to the applicant. In addition, the Consortium de transport scolaire d’Ottawa (“Consortium”) confirmed that it had provided the documents again, directly to the applicant, the day before the hearing. The respondents confirmed that the documents did not contain any arguments that were not already in their Responses. The documents in question were books of authorities. The respondents contended that in the circumstances, the applicant would not suffer any prejudice if the hearing proceeded and they asked that the Tribunal proceed.
5The Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments states:
The Tribunal discourages requests for adjournments outside the 14-day period to request rescheduling of a mediation or hearing, described above. Requests for adjournments, particularly at the last minute, are a significant impediment to fair and timely access to justice. Therefore, the Tribunal will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the Tribunal will not grant adjournments, even when all parties consent.
6Given that the respondents had made their written arguments for the summary hearing in their Responses and that the applicant has had access to it since August 2016, I decided that there were no extraordinary circumstances to justify an adjournment. The hearing proceeded as scheduled. However, counsel for the respondents did not rely on the case law filed with the Tribunal, since the applicant had not seen it.
THE SUMMARY HEARING
7The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure and in the Practice Direction on Summary Hearing Requests, the purpose of which is to determine at an early stage whether an Application should be dismissed, in whole or in part, because it has no reasonable prospect of success.
8The Tribunal does not have the power to deal with general allegations of unfairness that are not related to the Code. Its jurisdiction is limited to allegations of discrimination that are related to the protections granted by the Code.
9The test to be applied at the summary hearing stage is whether the Application has no reasonable prospect of success. At this stage, the Tribunal does not determine whether the applicant is telling the truth nor does it assess the impact of the treatment he received. In applying that test, the Tribunal assumes the facts alleged by the applicant to be true, unless there is some clear evidence to the contrary or evidence that the applicant does not contest.
THE parties
10The respondent Dominique Cuerrier is the owner of Cuerrier Bus Lines (“Bus Lines”), a company that provides transportation services to the Consortium under contracts for specified school bus routes. Bus Lines has about 25 employees, a majority of whom are bus drivers.
11The applicant was a school bus driver employed by Bus Lines.
12The respondent Consortium is a company incorporated under the laws of Ontario to provide for the school transportation needs of students of the Conseil des écoles catholiques du Centre-Est and the Conseil des écoles publiques de l’Est de l’Ontario. The Consortium provides school transportation services for students who live in the Ottawa, Pembroke, Carleton Place, Brockville, Merrickville, Kingston and Trenton areas. The Consortium is responsible for the transportation of over 23,000 students daily.
BACKGROUND
13The applicant was hired by Bus Lines on April 14, 2015, as a bus driver for elementary and secondary school children. At that time, he had two routes in the morning and two routes in the afternoon.
14On December 4, 2015, Bus Lines terminated the applicant. The applicant alleges that he was terminated because of his colour.
15The applicant maintains that he was aware of the rules that children were not to put their feet on the seats or eat on the bus. In November 2015, a student, S.C., was eating on the bus and putting her feet on the seats. One day, the applicant told her to stop, but she continued eating on the bus.
16The applicant submits that he informed his employer and was told to file a report if S.C. continued to engage in that behaviour. The applicant alleges that S.C. continued to behave inappropriately and he asked her to obey the rules.
17The applicant contends that S.C. urged a second girl (“R.C.”) to do the same thing. He explained that on November 18, 2015, after letting S.C. off, he arrived in front of R.C.’s house, stopped and before opening the bus door, asked R.C. for her name. She refused to give it to him and asked the applicant why he wanted that information. He told her that he wanted to file a report and he needed her name. He said that if he did not get her name, he would not open the door. He asked R.C. to call her parents so he could talk to them. She refused and said she did not have a telephone. The applicant offered her his telephone, but she did not want to take it. A neighbour saw that the bus was stopped with children on board. He went to get R.C.’s mother, who went to see what was happening.
18The applicant alleges that the mother said to him: [translation] “A dirty black. I do not want a black man driving my daughter to school. This will be the last time you drive a school bus.” The applicant maintains that the mother asked the applicant to let her daughter off or she was going to call the police. The applicant opened the door for R.C. and let her get off the bus.
19The applicant alleges that he called his employer immediately to recount the events, including the allegations of racist remarks by R.C.’s mother. He contends that he was told to file a report about the behaviour of S.C. and R.C. He maintains that the employer also told him that he would handle talking to the mother. The applicant filed a written report on R.C. and S.C.
20The applicant alleges that the Consortium asked Bus Lines to terminate his employment because the mother had complained to the Consortium that she did not want a black man driving her daughter to school. The applicant maintains that the Consortium put him on a “blacklist” that prevented him from finding another job as a school bus driver.
21The respondents submit that the applicant’s race, colour or ethnic origin was not a factor in the decision to dismiss the applicant.
22The respondent Cuerrier submits that even if the Tribunal accepts the applicant’s version of the facts, the Application has no reasonable prospect of success.
23The respondent Cuerrier admits that he terminated the applicant`s employment on December 4, 2015. The respondent Cuerrier contends that he had to terminate the applicant’s employment relationship because of the numerous incidents that the applicant admits to and that represent serious breaches of the service standards. During the summary hearing, the applicant admitted the following incidents:
a. on October 2, 2015, he did not attend work;
b. on October 22, 2015, he arrived at work an hour late without notifying the employer;
c. in October 2015, he drove the school bus with students on board when there were serious problems with the brakes;
d. he filled the gas tank while there were students on board the school bus;
e. on November 18, 2015, he refused to let a student get off the school bus;
f. on December 4, 2015, he was falling asleep at the wheel when he stopped the bus with students on board and got off, poured cold water on his face and got back on in less than a minute.
24The respondent Cuerrier contends that he was not aware of the allegations of racist comments made by R.C.’s mother. The respondent Cuerrier also notes that he was not aware, at the time the applicant’s employment was terminated, that the applicant was alleging that such comments had been made.
25The respondent Consortium adopts the position of the respondent Cuerrier. The Consortium submits that it must rely on its service providers to meet the service standard as set out in the contract with the service providers. The Consortium states that it was entitled to ask the respondent Cuerrier to replace the applicant on his routes since he was in serious breach of the service standards.
26The Consortium also submits that it was not in any way the applicant’s employer.
ANALYSIS AND DECISION
27I must determine whether the Application should continue to be dealt with or the Application should be dismissed because it has no reasonable prospect of success. The Tribunal’s Practice Direction on Summary Hearing Requests provides:
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.
28Rule 19.6A of the Tribunal’s Rules of Procedure provides that the Tribunal need not give reasons for its decision not to dismiss an Application following a summary hearing.
29During a summary hearing, the Tribunal does not hear testimony, and a conclusion that an Application should not be dismissed because it has no reasonable prospect of success simply means that the Application will continue to be dealt with. It does not mean that the Application has a reasonable chance of success.
30In Peel Law Association v. Pieters, 2013 ONCA 396 (at para. 111), the Court of Appeal relied on Radek v. Henderson Development (Canada) Ltd. (No. 3) (2005), 52 C.H.R.R. D/430, 2005 BCHRT 302 and Phipps v. Toronto Police Services Board, 2009 HRTO 877, for the following propositions:
a. the prohibited ground or grounds of discrimination need not be the sole or the major factor leading to the discriminatory conduct; it is sufficient if they are a factor;
b. there is no need to establish an intention or motivation to discriminate; the focus of the enquiry is on the effect of the respondent's actions on the complainant;
c. the prohibited ground or grounds need not be the cause of the respondent's discriminatory conduct; it is sufficient if they are a factor or operative element;
d. there need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and
e. racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices.
31I cannot conclude that the allegations of discrimination based on race, colour or ethnic origin have no reasonable prospect of success. Discrimination is often proved by circumstantial evidence and logical conclusions, and racial stereotyping usually result from subtle unconscious beliefs, prejudices and biases. The applicant contends that he contacted the respondent Cuerrier to inform him of the alleged racist comments made to him by a mother, including the comment that she did not want a black man as the bus driver for her daughter. I note that the mother’s written complaint to the Consortium does not make any reference to the applicant’s race, colour or ethnic origin. However, I cannot conclude that it is more probable, without a hearing on the merits, that the respondents were not aware of those comments and that racial stereotyping did not influence the decision to dismiss the applicant. I cannot conclude that the Application has no reasonable prospect of success on that question.
32I also note that in spite of the detailed argument on the question of whether there was an employment relationship between the Consortium and the applicant, the Tribunal needs evidence as to the nature of the relationship between the parties. I cannot conclude that the Application has no reasonable prospect of success as against the Consortium.
33In addition to the allegations that R.C.’s mother made racist comments to the applicant, that he complained to the respondent Cuerrier about those comments and that the mother complained to the Consortium, the applicant has made no other allegation that is connected with his race, colour or ethnic origin.
34The Application will continue to be dealt with on the following discreet issues, which will be decided on a balance of probabilities:
a. whether R.C.’s mother said to the applicant: “A dirty black. I do not want a black man driving my daughter to school. This will be the last time you drive a school bus”;
b. if so, whether the respondents were aware, before the applicant’s employment was terminated, that the mother had made those comments;
c. if so, whether the comments were discriminatory against the applicant;
d. if so, whether the applicant’s race, colour or ethnic origin was a factor in the decision to dismiss the applicant; and
e. if so, what the liability of each of the respondents is under the Code.
ORDER
35The Tribunal orders that the Application continue to be dealt with in order to address the five issues set out above. The Tribunal will hold a one-day hearing in person.
Dated at Toronto, this 4th day of December, 2017.
“Signed by”
Josée Bouchard
Vice-Chair