GSB#2019-0051

UNION#2019-5112-0026

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Walji)

Union

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Kevin Banks

Arbitrator

FOR THE UNION

Farnaz Talebpour Ryder Wright Holmes Bryden Nam LLP Counsel

FOR THE EMPLOYER

Regina Wong Treasury Board Secretariat Legal Services Branch Counsel

HEARING

January 25, 2023

Decision

Introduction

1Ms. Walji’s grievance alleges that the Employer has systemically discriminated against her on the basis of race in filling temporary vacancies that she says represented career development opportunities.

2The Employer brings a non-suit motion, contending that the Union’s evidence, even at its highest, would not be sufficient for the grievance to succeed. In the event that the motion fails, the Employer reserves its rights to call evidence.

3The Union contests the motion.

Test on a Non-Suit Motion

4The Employer submits that on a non-suit motion the Board must determine whether the evidence presented could be sufficient to lead it to rule in favour of the Union, assuming the Union’s witnesses to be credible and drawing in its favour all inferences reasonably supported by direct evidence: Ontario Public Service Employees Union (Asztemborski et al) v. The Crown in Right of Ontario (Treasury Board Secretariat) GSB# 2014-4402 (Briggs) at paragraph 46. In applying this test, the Employer submits, sufficiency is assessed by asking whether the Board could rule that the Union has proven its case on the balance of probabilities, if its witnesses are believed and it is granted the benefit of all reasonable inferences: Ontario Public Service Employees Union (Martin)and The Crown in Right of Ontario (Ministry of Natural Resources and Forestry) GSB#2011-3796 (Dissanayake) at paragraph 10, and the decisions cited therein. The Employer notes that in determining whether to believe a witness at this stage, the Board can distinguish conclusions of fact from evidence, and that the mere fact that someone asserts something to be true does not support an inference that it is if the assertion is no more than a bald allegation: Martin, supra, at paragraph 11.

5The Union contends that in a non-suit motion, the standard of proof expected from a responding party is that of a prima facie case, which is significantly lower than the standard of proof on a balance of probabilities; that in determining whether a prima facie case has been made out, the test is simply whether some evidence exists to support the claim; that in applying the standard of a prima facie case, any conflicts in or doubts about the facts must be determined in favour of the party responding to the motion; and that in examining the evidence before it, the Board will not assess the quality, reliability or the credibility of the evidence. The Union refers me to Ontario Public Service Employees Union (Pacheco) and The Crown in Right of Ontario (Ministry of the Solicitor General) GSB# 2010-2654 (Petryshen) at paragraphs 9 and 10; Ontario Public Service Employees Union (Del Casale) and The Crown in Right of Ontario (Ministry of Government & Consumer Services) GSB# 2019-0222 (Hewat) at paragraphs 3 and 4; Ontario Public Service Employees Union (Couture et al) and The Crown in Right of Ontario (Ministry of Government Services) GSB#2008-3329 (Dissanayake) at paragraph 12.

6The different authorities cited to me by the Union and the Employer do not in my view set out different approaches to the test on a non-suit motion. As the Arbitrator Dissanayake explained in Martin, supra, at paragraph 9:

It is now clearly established that the standard applied in assessing the evidence in determining a non-suit motion is considerably lower than the usual standard in civil matters, i.e. “on a balance of probabilities”. See, Cahoon, Ont. Div. Ct. (supra). While some authorities have stated that the plaintiff must have adduced “sufficient evidence”, others such as Cahoon (supra) have used the phrase “some evidence”. This Board has reasoned that there is no substantial difference between the two terms. Thus in Re Gareh, 1665/98 (Brown), the Board reviewed the decision of the Divisional Court in Cahoon (supra) and wrote at p. 6 as follows:

The Divisional Court’s comment that a motion for non-suit should be dismissed if there is “some evidence to support the claim” must be interpreted in the context of the immediately preceding passage from Sopinka’s The Trial of an Action saying the issue to be determined by the judge is whether “no jury acting judicially could find in favour of the plaintiff”. Based upon the Divisional Court’s apparent approval of this passage, I understand the Court’s reference to “some evidence to support the claim” to mean evidence which could lead a jury (or some other trier of fact) to rule in favour of the party opposing the motion, if the trier of fact found that party’s witnesses to be credible and made all reasonable inferences in its favour. This standard is no different in substance than the test of “sufficient” evidence utilized by the Court of Appeal in the Hall and Gallant case.

7Similarly, while the standard of proof on a non-suit motion is lower than the balance of probabilities, this is only insofar as evidence is assumed to be credible and the respondent is granted the benefit of all reasonable inferences supported by direct evidence: see Martin, supra at paragraphs 9 to 11. As Arbitrator Dissanayake pointed out in Martin, supra, at paragraph 11, quoting from Arbitrator Anderson’s decision in Re Bharti, 2013-2789:

In determining whether a prima facie case has been made out, the test is whether the evidence presented by the party responding to the motion is sufficient to allow the Board to rule that it has proven its case on a balance of probabilities, if the Board assumed its witnesses to be credible and drew in its favour all inferences reasonably supported by direct evidence.

As Arbitrator Dissanayake had explained earlier at paragraph 10 of Martin, quoting from Arbitrator Brown’s decision in Gareh:

It is not logically possible to make this determination without taking into account the applicable standard of proof which is on the balance of probabilities. The question to be decided is whether could rule that the union has proven its case on the balance of probabilities, if its witnesses are believed and it is granted the benefit of all reasonable inferences. The decision-making process on a motion for non-suit cannot ignore the standard of proof, but this process entails an application of that standard which differs markedly from the way it would be applied after both parties had closed their case. At that point, in determining whether the union had proven its case on the balance of probabilities, I would scrutinize the credibility of witnesses, and I would not draw inferences so as to resolve doubts in favour of the union, because the benefit of doubt should not be granted to the party bearing the onus of proof.

8Finally, as Arbitrator Petryshen points out in Pacheco, supra, at paragraph 10, while the Board will not assess the quality, reliability or credibility of the responding party’s evidence on a non-suit motion, the test of whether there is some evidence to support the claim assumes that the evidence meets a minimum threshold of credibility. In determining whether the evidence meets that threshold, the Board can consider the type of questions identified in Martin, supra at paragraphs 11 and 12, such as whether alleged facts were patently ridiculous or incapable of proof, or whether they represent a bald assertion or conclusion of fact unsupported by any evidence.

9Accordingly, for the purposes of this motion I will assume that the evidence submitted by the Union is credible and reliable, and will draw in its favour any inference reasonably supported by evidence. I will then determine whether the factual record is sufficient to allow a Board member acting judicially to rule that the Union has proven its case on a balance of probabilities.

Evidence

10The Union’s evidence was submitted via will-say statement subject to cross-examination. Ms. Walji provided a statement and answered questions about it in a hearing held on December 5, 2022. In addition, the Union tendered will-say statements from Chanda Mansueto, who also answered questions in cross-examination, and from Ms. Joan Marshall-Wilkinson, whom the Employer declined to examine.

11Assuming its credibility and reliability, the Union’s evidence, including the testimony of witnesses under cross-examination, would be sufficient to demonstrate the following material facts.

12Ms. Walji works as a Personnel Clerk, which is an Office Administrator position classified OAG9, at the Toronto South Detention Centre (“TDSC”). She has been employed by the Ministry of the Solicitor General since 1989. As a Personnel Clerk, her duties include, among other things, reviewing, preparing and processing a variety of human resources and payroll documents related to new hires, terminations, benefits, changes in status, transfers, fixed-term time sheets/hours worked, Workplace Safety and Insurance Board (WSIB) claim documents, and leaves of absence; recording and verifying of employee attendance; calculating amounts and coding input documents for salary purposes; preparing fixed-term contracts; and organizing, maintaining, updating and ensuring the safekeeping of personnel files and databases. This work includes reconciliation of payroll, which, as Ms. Walji put it, involves a lot of “figure work”.

13Ms. Walji’s experience with the Employer also includes two years as an Assistant Manager at the Toronto Jail, from 2009 to 2011.

14In her time at TDSC, Ms. Walji has trained and mentored at least four other employees.

15In 2014 Ms. Walji competed for an Assistant Business Administrator position at TDSC. The main function of this position is to supervise the processing of financial transactions. There are two such positions at TDSC. Each reports to a Business Administrator, who in turn reports to the Deputy Superintendent of Finance. She did not get the position. In her oral evidence, she conceded that “I did very badly, I was told” in that competition.

16In 2015, Ms. Nadine Persaud, a racialized woman, was successful in a competition for an Assistant Business Administrator position at TDSC. Ms. Walji said that she did not apply for the position in question because “I know what is going to happen”. Ms. Walji expressed frustration at not being given developmental opportunities that she said would have enabled her to do better in such competitions.

17Ms. Persaud later left her position for personal reasons. When she vacated her position, a few individuals expressed an interest in filling it. One of those individuals told Chanda Mansueto that the manager to whom Ms. Persaud had reported told them that the position would have to be posted. The position was vacant on and off between 2014 and 2016.

18In May of 2016, the Employer, through Deputy Superintendent of Finance John Mackinnon, offered to an individual to whom I will refer as MK an opportunity, without competition, to work at its Regional Office as a Finance Clerk, classified at level OAG 10.

19MK had served since March of 2015 as a Finance Clerk at TDSC. In cross-examination Ms. Walji agreed that this experience was relevant to the position opportunity that he was given in May of 2016, and that it included accounts payable and inmate trust responsibilities that she did not have as a Personnel Clerk. She also agreed that the systems dealing with such matters had changed since she had last acted as an Assistant Manager in 2011.

20MK is a non-racialized male.

21The Employer did not ask any of the racialized staff at Ms. Walji’s work location, who included two racialized women in addition to the grievor, whether they were interested in the position. Each of these three women had more years of service than MK.

22In 2018 the Employer gave MK an opportunity, without competition, to work as a Business Administrator at its Vanier location. The Employer did not ask Ms. Walji or other racialized staff whether they were interested in this opportunity.

23In December 2018, the Employer gave MK an opportunity without a competition to fill the position of Assistant Business Administrator. The form authorizing this opportunity was signed by Regional Director Lou Anne Lucier. Ms Walji alleged that Ms. Lucier and MK are related but provided no evidence of this. Ms. Walji had previously asked several times that Mr. MacKinnon give her the opportunity to fill this position. Each time he had told her that the position would be posted for competition.

24When MK vacated this position and left TDSC in May of 2019, Ms. Walji again asked Mr. MacKinnon for the opportunity to fill it. He again told her that it would be posted for competition.

25That same month, Ms. Joan Marshall Wilkinson, who is a racialized woman and was one of two Assistant Business Administrators at TDSC, was given an acting opportunity as a Business Administrator. As a result, her Assistant Business Administrator position became temporarily vacant. Ms. Walji asked Mr. MacKinnon for the opportunity to fill Ms. Marshall-Wilkinson’s position as a developmental assignment. Mr. MacKinnon told her that the position would be posted. It was not however posted over the next two years.

26Ms. Walji believes that had she been given this opportunity she would have been a more competitive candidate in subsequent job competitions.

27In 2019, the TDSC was short staffed with respect to Personnel Clerks. Ms. Walji said that TDSC was always short staffed in this way, and that she was always busy in her position.

28In May of 2019, the Employer gave TF, a non-racialized person, the opportunity for an Acting Personnel Clerk position at level OAG9. Ms. Walji’s evidence, not challenged in cross-examination, is that TF was a friend and family member of a member of TDSC management. TF had been hired on contract as a file Clerk at level OAG3 on October 17, 2017. Mr. MacKinnon asked Ms. Walji to train TF after she was placed in the Acting Personnel Clerk position. Four months later there was a competition for this position. TF and another non-racialized person were found to be the top two candidates. TF eventually was offered the job.

29MK returned to TDSC in June 2019 and the Employer returned him to the Assistant Business Administrator position at TDSC.

30In October of 2019, FW, a non-racialized person, was hired at TDSC without a competition. She was originally hired for a short period of time, but is still working at TDSC. Ms. Walji’s says that FW is a family member of a person who was a member of management at the time that she was first hired. The Employer did not challenge this assertion in cross-examination.

31In March 2020, MK resigned from the Assistant Business Administrator position to pursue a different career path. Ms. Walji again requested an assignment to the position as a development opportunity. The Employer again advised her that the position would be posted for competition.

32The Employer posted the position for competition on July 31, 2020. Ms. Walji applied for it but withdrew from the competition for personal reasons. There were two successful candidates in this competition. Both were racialized women.

Arguments of the Parties

Employer arguments

33The Employer submits that there is insufficient evidence to draw the conclusion that race was a factor in its decisions to staff the Regional Finance Clerk position in 2016, or in its subsequent decisions with respect to staffing the Assistant Business Administrator position in 2018 and 2019. It maintains that the fact that a single individual who is non-racialized received opportunities that a racialized woman is not is sufficient to establish, in the circumstances of this case, that she was denied career opportunities on the basis of race.

34The Employer notes that: (1) Mr. MacKinnon was not Ms. Walji’s manager at the facility where she served as an Assistant Manager from 2009-2011, and that his only gauge of her abilities was her poor performance in a competition for such a position in 2014; (2) in 2016 MK was a Finance Clerk at TDSC, a position that he had competed for; (3) Ms. Walji admits that when in 2016 the Employer placed him in the acting Finance Clerk position MK had experience in finance that she did not have, including recent experience in accounts payable and with inmate trusts; (4) Ms. Walji also admits that the systems for dealing with such matters had changed since she had last acted as an Assistant Manager in 2011; and (5) when MK was placed into the Acting Assistant Business Administrator position in 2019, he had very recently served in an Acting Office Manager position that gave him additional relevant experience.

35The Employer maintains in addition that the grievor would have needed extensive training to take on the positions in question.

36Further, the Employer notes that by Ms. Walji’s admission she was a busy clerk in a busy department that was always short staffed, so that operational needs justified keeping her in that position.

37Finally, the Employer notes that Ms. Marshall Wilkinson, a racialized employee, was placed in an Acting Business Manager’s position, and that two racialized women were eventually successful in a competition for Assistant Business Administrator position in which Ms. Walji had sought to serve in an acting capacity.

38The Employer submits that the evidence supports the conclusions that MK was placed in the positions in question because he was more qualified to fill them on a temporary basis, and that the acting positions that Ms. Walji sought would have been posted had MK not been placed in them. It maintains that it was entitled to consider operational needs in filling these positions rather than treating them simply as developmental opportunities.

Arguments of the Union

39The Union submits that its evidence meets the minimum threshold of credibility and that therefore I must assume that it is true and draw all reasonable inferences that flow from it.

40The Union maintains that the evidence supports an inference that Ms. Walji’s race was a factor in the Employer’s decisions to deny her a series of temporary developmental opportunities that became available when higher level positions became vacant. It says that each time such positions became available the Employer told Ms. Walji in response to her request to temporarily fill the position that it would be posted, and then turned around and gave the opportunity to a non-racialized staff member without competition. The Union also points out that Ms. Mansueto was similarly informed by the Employer that a position would be posted, but the Employer then did not post it even though it remained vacant on and off for some time. The Union insists that these situations are “red flags” that require some explanation, and that without such explanation it is reasonable and appropriate to infer that race was a factor in the Employer’s decision-making. It submits that any doubts in this regard must be resolved in the Grievor’s favour.

Decision

41The Employer filled the acting positions in question without competition. The Union accepts that the Employer was not required to post or hold a competition for them. The question is simply whether the Employer acted without discrimination.

42To establish a prima facie case of racial discrimination, the Union must prove that a grievor is a member of a group protected by the Human Rights Code; that she was subjected to adverse treatment; and that her race, ancestry or colour was a factor in the alleged adverse treatment: Cross, supra, at paragraph 34.

43There is no disagreement between the parties that Ms. Walji is a racialized person and that she was adversely impacted by the Employer’s decisions not to place her in temporary acting positions that she sought in order to advance her career. This motion turns on whether the evidence could allow the Board to find on a balance of probabilities that Ms. Walji’s race was a factor in those decisions.

44I agree with the observations of Arbitrator Tims in Morgan, supra, at paragraphs 40 and 41 that:

40… discrimination on the basis of race or gender may be subtle in nature, and that there may be no overt conduct which can be relied upon to substantiate such a claim. I accept this to be true. This was noted by the Board in Ministry of the Environment (Dobroff), supra, a case in which anti-union animus was in part alleged. The Board there stated as follows:

I agree that an admission or a “smoking gun” would rarely be found in anti-union animus cases or cases of discrimination on the basis of a prohibited ground. Thus in appropriate circumstances, anti-union animus may be inferred from circumstantial evidence. However, as Vice-Chair Gray observed in Re Damani, 1581/95; 1703/98, proof is nevertheless necessary. Anti-union animus will not be inferred merely because a grievor believes that it exists.

At para 17-18, Mr. Gray wrote:

(17) I accept as a general matter that racism “is out there,” as the grievor put it at one point. I agree with union counsel’s submission that racism often is latent, in the sense that those whose conduct is influenced by racist attitudes may not openly acknowledge it…. The presence and effect of racist attitudes may be difficult to detect and prove. It does not follow, and the union does not suggest, that proof is therefore unnecessary, or that the mere allegation of racial discrimination shifts the burden of disproving the allegation to those accused of it. (para 43)

41I am mindful as well of the comments of the Court of Appeal in Re Peel Law Association, supra, as quoted in Ministry of Community Safety and Correctional Services (Bonneveld), supra, as follows:

Respondents are uniquely positioned to know why they refused an application for a job or asked a person for identification. In race cases especially, the outcome depends on the respondent’s state of mind, which cannot be directly observed and must almost always be inferred from circumstantial evidence. The respondent’s evidence is often essential to accurately determine what happened and what the reasons for a decision or action were. (para 38)

45A trier of fact can thus, in appropriate circumstances, infer from the differential treatment of a member or members of a protected group, in the absence legitimate business reasons accounting for that treatment, that protected characteristics were a factor in adverse impacts resulting from it.

46In this case however, the evidence in its totality is in my respectful view not sufficient to support an inference that it is more likely than not that race was a factor in the Employer’s actions. I have reached this conclusion after carefully reviewing the evidence, and without in any way doubting the sincerity of Ms. Walji’s view of how she was treated by the Employer.

47MK received a series of acting opportunities that Ms. Walji sought. She is racialized, and he is not. This is of course not in itself sufficient to support an inference that her race was a factor in the Employer’s decisions. The question is whether the circumstances of these decisions support such an inference.

48In May of 2016 MK had experience that Ms. Walji did not have that was relevant to the temporary Regional Finance Clerk position that he was placed in at that time. Moreover, Ms. Walji had by her own admission not performed well in a recent competition for a similar position. Each subsequent acting position then gave MK additional experience relevant to the temporary Assistant Business Administrator position. Contrary to Ms. Walji’s assertions in her written particulars and in her will-say statement, there is no evidence that MK has a family relationship to anyone in the Employer’s management. The evidence pertaining to MK and Ms. Walji’s respective professional experiences thus does not suggest that the Employer lacked sufficient business reasons for its decisions in staffing the temporary positions that Ms. Walji sought.

49While the evidence indicates that in May 2016 the Employer did not bring the temporary Regional Finance Clerk position opening to the attention of three racialized women with more years of service than MK, there is no evidence as to the nature of their work experience or of its relevance to the position. There is also no evidence as to the nature of the work experience of racialized staff or its relevance of the temporary Assistant Business Administrator position that MK filled in 2018. These were not openings that the Employer was obligated to post or advertise. In this context there is no basis in evidence to suggest that race was a factor in differences in how people were informed of temporary openings.

50Further, there is no race-based pattern or tendency discernable in the evidence of who obtained acting assignments that could represent career development opportunities. The evidence shows that Joan Marshall-Wilkinson, a racialized woman, obtained a temporary Business Administrator position in May of 2019, and that TF, a non-racialized woman obtained a temporary Personnel Clerk position in May of 2019. I note that in October of 2019 FW, a non-racialized woman, was hired at TDSC without competition. But there is no evidence that this last hiring was into the sort of position that could be described as a career development opportunity. In any event, even if it was, this would not have been sufficient to establish a pattern or tendency towards favouring non-racialized persons in such temporary staffing decisions.

51Finally, there is no evidence of any race-based pattern or tendency in hiring through competitions. The evidence shows that in 2015, Nadine Persaud, a racialized woman, was hired into an Assistant Business Administrator position following a competition; that in the fall of 2019 TF (as noted above, a non-racialized woman) was similarly hired into a Personnel Clerk position; and that in 2020 two racialized women were successful in a further competition for an Assistant Business Administrator position.

52The evidence thus does not establish that racialized persons were less likely to obtain acting assignments or other forms of career advancement than non-racialized persons. Nor does it suggest that racialized persons obtaining these opportunities had to meet higher standards than non-racialized persons. There is no evidence suggesting that Ms. Walji’s particular characteristics as a racialized person were different in any relevant way from those of the racialized persons who received acting opportunities or won competitions. There is therefore no basis in evidence upon which to consider her treatment separately from that of other racialized persons in her workplace.

53The Union emphasizes that Ms. Walji was repeatedly told that positions that she sought would be posted, only for those positions to be given to MK, or not to be posted at all. It says that this kind of treatment raises a “red flag” that requires an explanation. In a different context, this might well do so. I can understand how Ms. Walji would be frustrated with the pattern of communication and non-communication that I am required on this motion to assume is established in evidence. But given the context described above, I cannot infer that it is more likely than not that her race was a factor in that pattern.

54I therefore conclude that in its totality, even if accepted as true and given the benefit of all reasonable inferences, the evidence cannot support a conclusion on the balance of probabilities that Ms. Walji’s race was a factor in the Employer’s decisions to deny her the temporary acting opportunities that she sought.

55Accordingly, the grievance is denied.