CITATION: Erazo v. Ontario (Ministry of Community and Social Services), 2024 ONSC 7181
DIVISIONAL COURT FILE NO.: 035/24
DATE: 20241224
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lococo, Matheson and Sheard JJ.
BETWEEN:
Salvador Erazo
Applicant
– and –
His Majesty the King in Right of Ontario, as represented by the Ministry of Community and Social Services
Respondent
Star Deak, for the Applicant
Jordanna Lewis, for the Respondent, Ministry of Community and Social Services
Maija-lisa Robinson, for the Human Rights Tribunal of Ontario
HEARD at Toronto: September 25, 2024
REASONS FOR JUDGMENT
L. Sheard J.
Overview
[1] On October 4, 2019, the applicant, Salvador Erazo (Mr. Erazo or “Applicant”), filed an Application (“Application”) with the Human Rights Tribunal of Ontario (“HRTO or “Tribunal”) against the respondent, the Ministry of Community and Social Services (“Ministry”). The Application alleged that Mr. Erazo had suffered discrimination with respect to employment because of race, place of origin, ethnic origin, age, and reprisal, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
[2] Mr. Erazo immigrated from El Salvador in 1987. He self-identifies as a man of colour and speaks with a noticeable accent. Mr. Erazo began working with the Ministry on April 10, 2017 on a six-month contract. He understood that under the collective agreement between the Ministry and the Ontario Public Service Employees Union (“Union”), upon completion of 18 consecutive months of employment, subject to certain requirements, he would be given a permanent position.
[3] Mr. Erazo’s contract was renewed twice. At the time of the second renewal, he was told his employment would be terminated on October 5, 2018, a few days shy of his completing 18 consecutive months of employment with the Ministry.
[4] Mr. Erazo asserts that throughout his employment with the Ministry, he was subject to discriminatory treatment on the basis of race, place of origin, age, and ethnicity. He also alleges that the Ministry created a “toxic work environment” and that he suffered reprisals for attempting to exercise his rights under the Code. Specifically, the Applicant asserts that as a result of a violation of his Code-protected rights, he was not offered a permanent position with the Ministry, nor even granted an interview for a case worker position.
[5] Pursuant to a Case Assessment Direction issued on February 10, 2023 (“CAD”), the Application proceeded by way of a combined preliminary/summary hearing (“Hearing”) to decide:
Whether the Tribunal should dismiss all or part of the Application because there was no reasonable prospect that all or some part of the Application would succeed; and
Whether to dismiss all or part of the Application because of delay.
[6] Issue 2 above, related to s. 34(1) of the Code, which provides that an application must be brought within one year of the incident to which the Application relates. Under s. 34(1)(b), if the alleged acts of discrimination were part of a pattern or series of incidents, an application must be brought within one year after the last incident in the series.
[7] Mr. Erazo was terminated on October 4, 2018, and the Application was brought on October 4, 2019. Under s. 34(1), however, most of the discriminatory acts complained of in the Application were out of time unless Mr. Erazo could establish that they were part of a pattern or series of incidents.
[8] Section 34(2) also permits a late application if the delay in bringing the application “was incurred in good faith and no substantial prejudice will result to any person affected by the delay.” Mr. Erazo asserted that he put off bringing the Application out of fear that he would not be given permanent employment if he spoke up.
[9] The Hearing was conducted by video conference on September 22, 2023. By decision dated October 12, 2023, reported at 2023 HRTO 1511 (“Decision”), the Tribunal dismissed the Application. It found that Mr. Erazo was unable to “point to any evidence to make the connection between the alleged discriminatory treatment and termination and his Code-enumerated grounds”: Decision, at para. 39.
[10] On November 14, 2023, Mr. Erazo submitted a request for reconsideration of the Decision on the basis that the Tribunal acted unreasonably in concluding that the Application did not have a reasonable prospect of success. Mr. Erazo challenged as unreasonable Tribunal’s finding that the multiple acts of discrimination identified in the Application were “untimely” and did not constitute a “series of occurrences”.
[11] By reconsideration decision dated December 14, 2023, reported at 2023 HRTO 1793 (“Reconsideration Decision”), the reconsideration request was dismissed.
[12] Mr. Erazo seeks a judicial review of the Decision and Reconsideration Decision (collectively, “the Decisions”) and asks for an order that the Application be permitted to proceed to a full hearing on the issues and merits of the case or, alternatively, that it be referred back for a new preliminary/summary hearing before a different adjudicator.
The Application
[13] In the Application, Mr. Erazo identified specific instances of alleged discrimination, including:
(a) being told that people of colour were “beggars” and that he was a “beggar”;
(b) being questioned in a derogatory manner on his ability to comprehend English, despite that he had studied and worked in English-speaking industries for most of his life;
(c) being stared at with hostility and laughed at by co-workers and management;
(d) being told he was too old to have young children;
(e) being threatened with repercussions if he complained to management or filed grievances concerning workplace disputes;
(f) suffering reprisals, including being denied a permanent position with the Ministry, following his attempt to initiate an investigation for discriminatory conduct against him; and
(g) that of all the Ministry’s employees who commenced their employment in or around the same time as he did, Mr. Erazo was the only person of colour, and the only person denied a permanent position.
[14] The Application set out details of the alleged breaches of his Code-protected rights including dates, identities of persons involved, words spoken, and actions taken, including alleged reprisals for his seeking to exercise or enforce his Code-protected rights. The alleged breaches occurred throughout Mr. Erazo’s employment, up to his last day of work.
[15] These events were important to Mr. Erazo, who sought to overcome the s. 34(1) limitation period under the Code by establishing that there was a series of incidents that occurred within one year of the last infringement of his rights.
[16] The Application contained details of alleged repeated discriminatory acts against him, largely inflicted by his manager who, he asserted, openly expressed derogatory and discriminatory views toward people of colour, ethnic origin, older parents of young children and alleged troublemakers, including Mr. Erazo. It also alleged that Mr. Erazo’s manager sought to protect her Caucasian friends and work colleagues and, ultimately, refused to consider the Applicant for a permanent position in reprisal for his efforts to pursue his Code-protected rights.
[17] In particular, the Application asserted that Mr. Erazo was not offered a permanent position in retaliation for a complaint he had made against a co-worker who, he described, was a “white colleague and friend of” his manager.
[18] The Application further asserted that in July 2018, Mr. Erazo reported to his manager that he felt that his Code rights had been violated by this co-worker. A meeting was held with Mr. Erazo, his manager and another manager, the co-worker, and a representative of the Union.
[19] Unsatisfied with the outcome of the meeting, Mr. Erazo followed up with the Union representative. Mr. Erazo said he was told by the Union representative to let the matter go because if he chose to exercise his Code rights, the managers were “going to make life difficult for him”. This advice was consistent with what Mr. Erazo had been told by his manager on May 17, 2018: that she and the other managers made the hiring decisions and that she dislikes employees who make grievances to the Union. The Applicant also asserts that the manager had earlier told him that that if employees bring a toxic environment for her, she has “no problem getting rid of them”, or words to that effect.
[20] The Application asserted that on September 18, 2018, Mr. Erazo was advised by a colleague that she had heard that the managers did not want the Applicant to be offered a permanent position because they were angry about his complaint against the co-worker.
The Decision
[21] In the Decision, at para. 6, the Tribunal found that the Application related to three periods of time during which the Applicant claimed to have experienced discrimination:
April 2017 to October 2017: during which, the Applicant alleged discrimination in his hiring and in the organizational workplace culture;
February 2018 to September 2018: during which, the Applicant alleged discrimination in his treatment by his manager involving his efforts to obtain a case worker permanent position, age comments and reprisal allegations involving the conduct of the co-worker; and
October 4 and 5, 2018: involving timely allegations of discrimination in the Applicant’s termination of employment and his not obtaining a permanent position.
[22] The Decision began with an analysis of whether the alleged incidents formed part of a “series of incidents” under section 34 of the Code. The Tribunal considered the four factors in Garrie v Janus Joan Inc., 2012 HRTO 1955, at para. 30:
(a) the date of the last alleged incident of discrimination;
(b) whether the allegations relating to a series of separate and independent incidents or to the continuing effect of a single incident of discrimination;
(c) the nature or character of the alleged discrimination and whether it was part of a pattern or series of incidents of a similar nature or character; and
(d) the temporal gap between the alleged incidents of discrimination.
[23] The Decision addressed whether Mr. Erazo’s allegations, concerning events that occurred more than one year prior to the date on which the Application had been filed, were part of a series of incidents within the meaning of s.34(1)(b) of the Code. If so, the allegations would be considered timely. If not, then the Tribunal would consider whether any delay was incurred in “good faith”.
[24] In the Decision, the Tribunal concluded that the allegations during the first two periods of time were not part of a pattern or series of incidents of a similar nature or character and involved different Code grounds.
[25] The Tribunal then considered the Applicant’s explanation that his delay in filing the Application was out of fear that he would not be given permanent employment in the future if he spoke up.
[26] In the Decision, at para. 21, the Tribunal found that the Applicant’s explanation did not constitute a “good faith” reason, stating that Mr. Erazo “only brought the discriminatory allegations forward after failing to obtain permanent employment. As a result, I find that the Applicant has not provided a reasonable explanation for the delay.”
[27] As a result of that finding, Mr. Erazo’s allegations respecting events that occurred prior to October 4, 2018 (the day before his last day of work) were struck from the Application, leaving only those allegations that occurred within the statutory time limit, i.e., between October 4, 2018 and October 4, 2019, to be dealt with in the summary hearing.
[28] The Tribunal then addressed the summary hearing process set out in Rule 19A of the Tribunal’s Rules of Procedure and the Tribunal’s Practice Direction, under which an application should be dismissed in whole, or in part, if there is no reasonable prospect that the application will succeed.
[29] The Tribunal, at para. 27, noted that at this stage of a proceeding, the “test of no reasonable prospect of success is determined by assuming the Applicant’s version of events is true unless there is some clear evidence to the contrary or the evidence is not disputed by the Applicant.” The Tribunal, at para. 28 stated:
The purpose of a summary hearing is to determine whether the applicant is able to point to any information, which tends to support her belief that she has experienced discrimination or reprisal under the Code. The question the Tribunal must decide is whether there is likely to be any evidence, or any evidence that may be reasonably available to the Applicant to connect the unfair treatment allegedly experienced by the Applicant with the Code’s protections.
[30] Without identifying the basis for its conclusion, the Tribunal found that Mr. Erazo had not satisfied the terms of Article 31A .15.1.1 of the collective agreement for a permanent position: Decision, at para. 36.
Reconsideration Decision
[31] The Reconsideration Decision characterized the Applicant’s grounds as his disagreement with the Tribunal’s determination of what constitutes a “series of incidents”. Without addressing the grounds raised by the Applicant, the Reconsideration Decision stated that the case law is clear that a reconsideration is not an opportunity to re-argue the case.
[32] In response to the Applicant’s assertion that there had been a lack of procedural fairness at the Hearing, the Reconsideration Decision referenced the Applicant’s failure to submit additional documents as permitted pursuant to the CAD. However, the Reconsideration Decision made no reference to the CAD itself, which stated that no witnesses were to be called at the summary hearing and that the decision would be based on materials already filed.
[33] In his reconsideration request, the Applicant stated that at the Hearing, he had attempted to make submissions concerning the evidence that might reasonably be available to him at a merits hearing and had been precluded from advancing these submissions by the adjudicator, who stated that witness testimony would only be canvassed during a merits hearing.
[34] The Applicant submitted that he was denied procedural fairness when the Tribunal refused to hear submissions respecting evidence that would be available to him, and that, had he been permitted to make submissions on the availability of firsthand knowledge of material witnesses, the outcome would have been different.
[35] In his reconsideration request, the Applicant also asserted that at the Hearing, all participants were required to turn off their cameras, so that neither the parties, nor the adjudicator, could be seen which, he submitted, was contrary to the principles of natural justice.
[36] The Applicant’s submissions respecting the lack of procedural fairness at the Hearing were also not addressed in the Reconsideration Decision.
[37] The Reconsideration Decision referred to Rule 26.5(d) of the Tribunal’s Rules of Procedure noting that a request for reconsideration may not be granted unless the Tribunal is satisfied that “other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions”. In the Reconsideration Decision, the Tribunal concluded that it was not satisfied that other factors outweighed the public interest in the finality of the Decision.
Issues:
[38] Mr. Erazo raised the following four issues on his application for judicial review of the Decisions:
(1) The Decisions are contrary to established case law and to the Tribunal’s Rules and Procedures respecting its determination of what constitutes a “series” of discriminatory incidents;
(2) The Hearing was procedurally unfair because Mr. Erazo was restricted from making submissions on evidence that fell within the permissible scope of the hearing as per the directions set out in the CAD, applicable case law, and the Tribunal’s Rules of Procedure;
(3) Mr. Erazo was denied procedural fairness at the Summary/Preliminary Hearing; and
(4) The Decisions are unreasonable as the Tribunal failed to provide sufficient reasons.
Court’s Jurisdiction
[39] The court has jurisdiction over this judicial review pursuant to ss.2(1) and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
Standard of Review
[40] The standard of review for decisions of the HRTO is reasonableness: Ontario (Minister of Health and Long-Term Care) v. Assn. of Ontario Midwives, 2022 ONCA 458, 161 O.R. (3d) 561, at para. 83. For allegations of procedural fairness, the court must determine whether the required level of procedural fairness has been accorded.
[41] Reconsideration is a discretionary decision to which the Divisional Court owes deference: Xia v. Board of Governors of Lakehead University, 2020 ONSC 6150 (Div. Ct.), at para. 40.
Discussion
Issue #1: Were the Decisions contrary to established case law and to the Tribunal’s Rules and Procedures respecting its determination of what constitutes a “series” of discriminatory incidents?
[42] Mr. Erazo submits that the Decisions failed to consider or apply the applicable case law, and refers to the principles found in Papanicolopoulou v. University of Windsor, 2015 HRTO 754, at para. 28, which reads:
If the allegations of discrimination occurred more than one year before the Application but the allegation of reprisal occurred within that year, the alleged reprisal could be the last of a series of events that would include the allegations of discrimination.
[43] The Applicant submits that facts laid out in the Application did establish a pattern of discrimination that constituted a series of events, thereby defeating the limitations defence raised by the Ministry.
[44] Mr. Erazo submits that in the Decision, the Tribunal failed to explain its conclusion that the “separate and independent incidents of alleged discrimination” referenced in the Application, were neither part of a pattern, nor connected to the Ministry’s decision not to offer him a permanent position: Decision, at paras. 16-17.
[45] The Applicant also submits that the Tribunal did not consider the absence of any explanation from the Ministry as to why it did not hire Mr. Erazo, a person of colour, while hiring five persons of Caucasian descent. I understand that this ground of complaint is intended to be viewed in the context of the allegations that throughout his employment with the Ministry, the Applicant suffered discrimination at the hands of the managers who ultimately determined whether to offer him employment.
[46] The Ministry submits that the record supported the Tribunal’s determination that the alleged discriminatory acts were not “a series of events”. The Ministry also submits that the Tribunal properly followed and applied Alleyne v Toronto (City), 2011 HRTO 560 when it found that for the purposes of s.34(1)(b), the Applicant’s allegations of discrimination were “not related or connected and involved different circumstances” from the alleged treatment by the Applicant’s manager denying him permanent employment: Decision, at para. 16.
[47] Alleyne was decided after a merits hearing, with viva voce testimony and contained allegations that pre-dated the date of that application by seven years. The allegations of discrimination were made against various managers and supervisors, who had allegedly acted together over the years to deny the applicant a transfer to which he was entitled. The Tribunal concluded that the alleged events were “not related or connected and involve different individuals and different circumstances” (at para. 43). It further found that the incidents appeared “to be isolated incidents of a nature that are experienced by people in a workplace setting…whose only common factor is that the incidents were experienced by a Black person” (at para. 44).
[48] The record in Alleyne is markedly distinguishable from that before the Tribunal. The record before the Tribunal contains allegations of repeated discrimination by the same manager, which occurred throughout Mr. Erazo’s employment and culminated with an alleged final act of discrimination and/or reprisal, when the manager refused to offer or even consider the application for a permanent placement.
Disposition of Issue #1
[49] While the Decision states the correct principles, based on the record before it and the nature of the Hearing, I find that the principles were misapplied. As such, I conclude that the Decisions were contrary to case law and the Tribunal’s Rules and Procedures respecting the determination of what constitutes a “series” of discriminatory incidents.
Issues #2 and #3: Was the Hearing procedurally unfair?
[50] Mr. Erazo submits that he was denied procedural fairness at the Hearing when he was restricted from making submissions on evidence he would be able to put forward in support of the Application.
[51] The CAD explained that the Hearing was intended to offer the Applicant the opportunity to explain the allegations contained in the application and the Tribunal the opportunity to hear arguments from the parties. No witnesses were to be called, and the parties were not expected to submit documents: the Tribunal would make its decision on materials already filed in their submissions (CAD, at paras. 4-5).
[52] In the Reconsideration Decision, the Tribunal found that the Applicant had not provided the Tribunal with documents and witness lists. Mr. Erazo asserts that at the Hearing he was denied the opportunity to provide details of the witness testimony and statements available to him, on the basis that witness testimony would only be canvassed at a merits hearing. As such, the Tribunal’s determination that he had been unable to point to any evidence that could connect the alleged discriminatory treatment to his Code-enumerated grounds was unreasonable.
[53] At para. 7, the CAD stated that the Applicant would be expected to explain what evidence he had in his possession, or that may be reasonably available to him, and which he expected to be able to present at a merits hearing. As well, with respect to the issue of delay, the CAD, at para. 14, directed that the parties would be permitted to call witnesses.
[54] At para. 25 of the Decision, the Tribunal referenced the Tribunal’s Practice Direction on Summary Hearing Requests, which was discussed in Dabic v. Windsor Police Service, 2010 HRTO 1994. Applying those principles, on a summary hearing, in some cases, the issue to be determined was whether “assuming all the allegations in the application to be true, it has a reasonable prospect of success” (at para. 8). In other cases, the focus of the Tribunal is whether “there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated” (at para. 9).
[55] Applying Dabic, if the Applicant’s versions of events were assumed to be true, the Decision does not explain how it concluded that the Application had no reasonable prospect of success. Alternatively, if the focus had been on what the Applicant might have been able to prove based on the evidence he had, or would be reasonably have been available to him, denying Mr. Erazo the opportunity to make submissions about that evidence was not procedurally fair.
[56] The Decision also fails to address the substance of the evidence that Mr. Erazo did identify would be available to him at a merits hearing, concluding, simply, that “the applicant could not point to any evidence to make the connection between the alleged discriminatory treatment and termination and his Code-enumerated grounds” (at para. 39).
[57] Similarly, in the Reconsideration Decision, the Tribunal appeared to ignore the evidence set out in the Application concluding, at para. 19, that, although Mr. Erazo was provided with an opportunity to submit documents and witnesses, he failed to do so.
[58] The Reconsideration Decision also failed to address Mr. Erazo’s assertion that the hearing had been procedurally unfair.
Disposition of Issues #2 and #3
[59] For the reasons set out above, I find that Mr. Erazo was denied procedural fairness at the Hearing which undermined the Tribunal’s findings. The lack of procedural fairness was not addressed or remedied in the Reconsideration Decision.
Issue# 4: Were the Decisions unreasonable as the Tribunal failed to provide sufficient reasons?
[60] Having found that that Decisions cannot stand for other reasons, I make no determination of this issue.
Disposition
[61] For the reasons given, this application for judicial review is granted and an order is made directing that the Application be remitted to the Tribunal for a new preliminary/summary hearing before a different adjudicator.
Costs
[62] As agreed by the parties, the Applicant is entitled to his costs fixed in the amount of $4,300, inclusive, payable by the respondent Ministry.
L. Sheard J.
I agree _______________________________
Lococo J.
I agree _______________________________
Matheson J.
Released: December 24, 2024
CITATION: Erazo v. Ontario (Ministry of Community and Social Services), 2024 ONSC 7181
DIVISIONAL COURT FILE NO.: 035/24
DATE: 20241224
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lococo, Matheson and Sheard JJ.
BETWEEN:
Salvador Erazo
Applicant
- and -
His Majesty the King in Right of Ontario, as represented by the Ministry of Community and Social Services
Respondent
REASONS FOR JUDGMENT
L. SHEARD J.
Released: December 24, 2024