Selwyn Pieters v. Toronto Board of Education, 1997 CanLII 15578

[1997] OLRB REP. MAY/JUNE 541

1687-96-OH; 1881-96-OH Selwyn Pieters, Applicant v. Toronto Board of Educa­tion, Responding Party v. Canadian Union of Public Employees, Local 134, Intervenor; Selwyn Pieters, Applicant v. Toronto Board of Education (Plant Operations), Re­sponding Party v. Canadian Union of Public Employees, Local 134, Intervenor

BEFORE: Kevin Whitaker, Vice-Chair, and Board Members S. C. Laing and H. Peacock.

APPEARANCES: Selwyn Pieters and H. Kopyto on behalf of the applicant; Stephen C. Raymond, Cindv-Ann Thomas, Lilianna Simonetta and Tony Eichhorn for the responding party; Judith McCor­mack, Howard Goldblatt, Steve Lillico, John Weatherup and Dave Smith for the intervenor.

DECISION OF THE BOARD; May 21, 1997

I

A Brief Overview

1. The applicant in this matter claims that he was harassed and discriminated against by his employer on the basis of his race, Both applications involve the same parties and are brought pursuant to section 50(2) of the Occupational Health and Safety Act (the “OHSA”). The applicant's theory is that he was subject to reprisals by his employer for having exercised rights under the OHSA.

2. The applicant has not brought a concurrent complaint before the Ontario Human Rights Commission (the "Commission") alleging that he has been discriminated against contrary to the provisions of the Ontario Human Rights Code (the "Code"),

3. All parties agree that both the Board and the Commission exercise a concurrent jurisdiction over the subject matter of these applications. The applicant has chosen to bring his concerns to the Board rather than the Commission because he believes that the Commission will fail to properly enforce the provisions of the Code.

4. The respondent as a preliminary issue, takes the position that the Board should defer to the Commission as the real issue here is whether the applicant was discriminated against in a manner which is contrary to the provisions of the Code. The applicant and the intervenor (the applicant's bargaining agent) oppose the respondent's preliminary motion. The principal argument put forward is that if the Board defers to the Commission, it is in effect deferring to a forum which has abdicated its statutory responsibilities. The applicant and intervenor suggest that if a complaint were made to the Commission, it would either simply fail to deal with it or defer the matter back to the Board.

5. For reasons which comprise the balance of this decision, the application is dismissed.

Preliminary Matters

6. Aside from the respondent's motion to defer to the Commission, there were a number of other preliminary matters.

7. The applicant's representative requested permission to produce a tape recording of the proceeding. This request was made because of a disability which would prevent him from taking handwritten notes. Over the objection of the respondent, the Board ruled orally:

Mr. Kopyto is permitted to create an audio tape recording of these proceedings for his own personal use only, and subject to the following restrictions:

(I) the tape recording created is not to be held out by Mr. Kopyto, the applicant, anyone on their behalf or any other party or person as a record of these proceedings or as a transcript of the proceedings;

(2) Further, any tape recording created is not to be published or distributed to any other persons, and is to be used only for the purposes of refreshing Mr. Kopyto's memory in the context of his personal use as the applicant's representative in this matter.

8. Leave was granted to withdraw the application in Board File No. 1687-96-OH as it was completely subsumed in the application tiled subsequently in Board File No. 1881-96-OH.

9. The respondent initially took the position that the Board should defer to the grievance arbitration process as the intervenor had filed a number of grievances on behalf of the applicant which dealt with the subject matter of these applications. The intervenor and the applicant withdrew the grievances and the respondent withdrew this preliminary argument.

10. With the grievances withdrawn, the respondent took the position that if the matter were to proceed on the merits, it would object to the participation of the intervenor.

11. The applicant wished to call evidence in dealing with the respondent's motion to defer to the Commission. The applicant proposed to call both factual and opinion evidence to establish two things:

12. that racial harassment and discrimination could constitute a "hazard" for purposes of the OHSA, and;

13. that the Commission continues to fail to properly exercise its jurisdiction under the Code.

12, The intervenor took the position that as the evidence was arguably relevant, it should be permitted.

13. The respondent objected to the proposed evidence. The respondent suggested that the evidence was not only irrelevant, but that the Board had no jurisdiction to inquire into the competence of the Commission.

14. Following argument, the Board ruled orally:

Having heard the submissions of the parties, we have decided not to permit the applicant in dealing with the respondent's preliminary motion, to lead any evidence on the issue of whether or how the Commission exercises its jurisdiction under the Code.

If the respondent's motion were to succeed, and the Commission were to subsequently deal with a claim by the applicant in a manner inconsistent with the Code, the applicant would have his remedies elsewhere.

Given the parties' agreement that racial discrimination and harassment may constitute a "hazard" under the OHSA. it is not necessary to hear evidence on this point.

15. On consent of the parties, the applicant was granted leave to amend the application to include events which took place after it was filed on September 30, 1996.

II

The Facts

16. For purposes only of dealing with the respondent's preliminary motion, we accept the facts as alleged by the applicant.

17. The applicant was hired by the respondent as a Caretaker, on June 24, 1996. His last active day of employment was September 23, 1996. The applicant was dismissed on December 18, 1996,

18. The substance of the applicant's complaint is that he was subjected to both physical and non-physical hazards in his workplace, sought the protection of the OHSA and suffered reprisals for it.

19. The non-physical hazards consisted of a pattern of racial harassment and discrimination. The physical hazards included such things as defective machinery, toxic fumes, and an absence of training.

20. The reprisals were for the most part, further acts of racial discrimination and harassment.

21. The recital of allegations is prefaced by the assertion that "From the time that the Applicant commenced work….he was subjected to a pattern of conduct and to physical and other conditions at the workplace which constituted a hazard to his health". Further, that the hazards "included a poisoned work environment".

22. The application then goes on to provide detailed allegations which describe the conduct of the respondent at particular times from August 7, through to December 18, 1996.

23. The detailed allegations include a description of racist comments made to the applicant by supervisors. It is also alleged that the applicant was treated by his doctor for stress caused by a "racially poisoned work environment".

24. The application alleges that there were six discrete incidents where the applicant was exposed to physical workplace hazards;

25. August 7, 1996, electric shock from a broken "wet vacuum";

26. July 29 - August 8, 1996, exposure to second hand cigarette smoke in the lunchroom;

27. August 8, 1996, dermatitis from toxic fumes;

28. September 2, 1996, assigned to Heydon Park School without being advised concerning the school's "surveillance" system, evacuation pro­cedures or fire alarm system;

29. September 6, 1996, assigned to Old Orchard Park School with the same concerns described in point "4" above;

30. September 4, 1996, assigned to cut grass with a lawn mower without being properly trained or instructed in its usage.

31. The applicant claims to have been acting in compliance with the OHSA as a result of the following conduct:

32. Having failed to cut grass with a lawn- mower (work refusal);

33. Having failed to attend disciplinary meetings (work refusal);

34. Having requested protective equipment and appropriate supervision;

35. Having filed the application (section 50(2).

36. The application then describes the discipline received by the applicant culminating in his dismissal of December 18, 1996.

37. Following the detailed allegations, the application states that the respondent's conduct "constituted reprisal actions as a result of his (the applicant's) actions in compliance with the OHSA, seeking the enforcement of the OHSA or intending to give evidence in a proceeding to enforce the OHSA...". The application then asserts "The applicant states that he is an African-Canadian and that the differential conduct described above was motivated in part by antagonism against him by reason of such attributes".

III

The Respondent's Deferral Argument

28. The respondent agreed with the applicant and intervenor that the Board had jurisdiction over the application. It argued however that section 50(3) of the OHSA provided the Board with a discretion as to whether it should inquire into an application brought under section 50(2). The respon­dent suggested that in these circumstances, the Board should exercise its discretion under section 50(3) by deferring to the Commission, thereby declining to inquire.

29, The respondent took the position that the application did not allege that the applicant suffered reprisals for having exercised rights under the Act with respect to the physical hazards described in paragraph "24" above. In the absence of facts which would establish a nexus between these physical hazards and reprisal conduct, the respondent argued that the allegations concerning physical hazards should be struck from the application. What would be left of the application would constitute allegations that are purely in the nature of racial discrimination and harassment. According to the respondent, these matters are clearly within the domain of the Code and should be before the Commission. The respondent relied upon the Board's decision in Musty v. Meridian Magnesium Products Limited, ("Meridian"), [1996] OLRB Rep. Nov./Dec. 964.

30. In the alternative, the respondent argued that if the portion of the application dealing with physical hazards was not struck, the application was principally about racial harassment and discrimination. In these circumstances, the Board should still defer to the Commission on the theory that the dominant character of the matter brought it within the provisions of the Code.

The Applicant's Response on Deferral

31. The applicant took the position that the Board should always inquire into an application where a prima facie case for a breach of section 50(1) of the OHSA is made out in the pleadings. Alternatively, the applicant argued that where an application alleges that the workplace hazards which led the applicant to exercise rights under the OHSA are "mixed" in that they consist of both physical hazards as well as the hazards of discrimination and harassment, the Board should inquire into it.

32. The applicant also argued that it would be pointless to defer to the Commission as it would completely fail to properly exercise its jurisdiction under the Code. The applicant suggested that pursuant to its discretion under section 34(1 )(a) of the Code, the Commission would in fact defer to the Board or a board of arbitration, as it was likely to determine that the matter was more appropriately dealt with under the Labour Relations Act, 1995 (the "Act").

33. The applicant relied upon the Board's decision in Pauline Au v. Lyndhurst Hospital, [1996] OLRB Rep. June 456.

34. The intervenor supported the applicant's position on the deferral issue.

IV

Striking the Physical Hazards

35. The respondent argued that there was no nexus linking the alleged physical hazards with reprisal conduct and that this portion of the application should be struck. The applicant and intervenor suggested that the application reveals such a nexus.

36. The parties provided the Board with a detailed analysis of the grammar and construction of the text of the application. Each suggested that a plain language reading of the application supported their position.

37. In our view, the application contains an element of ambiguity. It is possible to construct a reasonable argument that would support either the respondent's or the applicant's position on this issue.

38. It is arguable that the application states a prima facie case with respect to the allegations of physical hazards. In these circumstances, we are not prepared to strike those portions of the application. It must be remembered that the statutory provisions invoked by the applicant are remedial legislation. Worker applicants under section 50 of the OHSA cannot be held to the drafting standards of legal counsel.

39. Accordingly, we reject the respondent's submission that a portion of the application should be struck.

Deferral-The Analysis in Meridian

40. Having failed to convince us that a portion of the application should be struck, we turn to the respondent's alternative argument which is that we should defer to the Commission in any event, having regard to the entirety of the application.

41. The respondent concedes that if the application was merely based upon an allegation that the applicant suffered reprisals for having sought to exercise his rights under the OHSA with respect to the physical hazard components of the application, the Board should inquire into it. It is argued however that the larger context painted by the application must inform the Board's characterization of the alleged physical hazards. On this view, the application is about issues of harassment and discrimination, despite allegations dealing with physical hazards.

42. As we have observed, the respondent relies upon the Board's reasoning in Meridian. The applicant suggests that Meridian is wrong, that Lyndhurst stands for the contrary principle and should be followed.

43. In Meridian, the Board dealt with an application under section 50(2) of the OHSA where the hazard which led the applicant to pursue her rights under the OHSA as well as the reprisal conduct was alleged to be sexual harassment. The applicant had filed a concurrent complaint with the Commission, dealing with the same subject matter. There were no allegations of physical hazards apart from the incidents of sexual harassment.

44. The respondent in Meridian argued that the Board should exercise its discretion under section 50(3) of the OHSA by deferring to the Commission, thereby declining to inquire into the application. In dealing with this motion, the Board undertook a comprehensive comparative analysis of the Code, the OHSA and the respective roles of the Commission and the Board under their legislation. The substance of the analysis appears at paragraphs 147 to 161 of that decision:

45. The Code contains provisions dealing with the precise conduct in question in this case (including alleged reprisals), as well as provisions mandating a range of responses and remedies that can be deployed by the Commission and/or a board of inquiry. Those proscriptions and prescriptions are both clear and specific. They deal with the underlying cause of the problem, the question of reprisals, and the issues of inaction and potential repetition. And they contemplate (and permit) a more broadly-based approach to the question of a "poisoned work environment".

46. By contrast, even under an expansive interpretation of the OHSA, this Board has only a narrow residual role in this area - and then only in respect of a reprisal (if there is one) connected to the exercise of statutory rights (if that is really what the complainant was doing in this case).

47. In my view these specific legislative pronouncements, and the availability of an alternative statutory tribunal to deal with such matters, both suggest that that is the way that the Legislature has intended that issues of this kind should be addressed - even though there is an argument that this Board may have jurisdiction too. Human rights issues were intended to be dealt with by the

Human Rights Commission under the Human Rights Code - not by this Board under the ORSA. And that is an additional reason why this Board should exercise its discretion not to hear this complaint - in effect, to defer to the Code and the Commission.

150. There is nothing startling about one tribunal declining to embark upon litigation because there is an alternative forum available - particularly if that forum seems more appropriate, and, as here, seems to have been designed by the Legislature to deal with precisely those issues. Even the Courts, which have an inherent common law jurisdiction, have sometimes stayed a civil action when the subject matter of the case appeared to be a human rights issue that was the subject of concurrent litigation before the Commission. In such cases, there was usually no question that the Court had jurisdiction to proceed if it wished to do so. Rather, the question was whether it made sense to proceed, given the potential for duplication of effort, overlapping remedies, and inconsistent findings.

151. In my view, these are factors that a statutory tribunal can also take into account, along with the apparent legislative intent and the public and private costs involved in overlapping litigation.

152. Nor are such notions of "deferral" foreign to the Board's own jurisprudence, or to the exercise of the Board's unfair labour practice jurisdiction that is given to the Board by its governing statute (and incorporated to some extent into the OHSA via sections 50(2) and 50(3)).

153. For many years the Board has had a "policy" of deferring to arbitration when the essence of an alleged unfair labour practice complaint is the breach of a negotiated collective agreement (see the decision of the Board in Valdi Inc., [1980] OLRB Rep. Aug. 1254). This deferral policy is rooted in section 49 of the Labour Relations Act which creates a presumption in favour of arbitration for the resolution of such matters - even though, to the extent that there is an alleged breach of the Labour Relations Act, they could also be addressed under section 93 of the Act.

154. Section 56 of the Labour Relations Act that makes a collective agreement "binding", so that any refusal to comply with the terms of a collective agreement might "arguably" be considered a breach of the Act. Indeed, the Board has sometimes enunciated that view. And there will be plenty of circumstances where an alleged breach of the collective agreement might also be characterized as an unfair labour practice, so as to fall within the "jurisdiction" of the Board. However, by and large, the Board has been reluctant to pre-empt the primary process of dispute resolution contem­plated by the Legislature, even though the Board has exclusive jurisdiction to interpret and apply the Labour Relations Act and has much broader powers than a Board of Arbitration. The Board has Jurisdiction, but it has not been inclined to exercise it when the scheme of the Act suggests that another forum is to be preferred.

155. It appears to me that the same kind of approach is advisable where, as here, the Legislature has so clearly designated the Commission as the primary forum for dealing with problems of this kind. If anything, there is a stronger case for deferral where the rights in issue are so clearly addressed, where the alternative forum has its own statutory framework, where the statutory remedies appear to be broader than those this Board could give, and where the OHSA jurisdiction is debatable. In this respect, the situation here is not like deferral to a privately negotiated process like grievance arbitration. Rather, the Board is recognizing the role of another statutory body with its own specific legislation and public mandate in this area. And while I do not think that the "practicalities" of the situation should necessarily govern the result, neither should the Board take a parochial approach and ignore the problems of (potentially) overlapping jurisdictions.

156. The modern workplace is now subject to an array of arguably overlapping statutes, which, in turn, can foster multiple litigation in different forums arising out of the same basic work setting. The instant case is a classic example, involving (among other things) a request for compensation in the Courts, and broadly similar or related relief under three separate statutes (Workers' Compensa­tion. the OHSA, the Code) administered by several different statutory agencies and tribunals (the WCB and WCAT, the Human Rights Commission and a board of enquiry, and the Ontario Labour Relations Board). And if the OHSA applies generally, as Ms. Musty says it does, one could add inspectors from the Ministry of Labour and the adjudication/appeal procedures under the OHSA as well.

157. This checkerboard of statutory rights and remedies is not only a recipe for inconsistent results as each agency or tribunal sifts through the facts from its own perspective, but in the circumstances. I do not think that it is inappropriate to consider the public and private costs of an exercise in which several statutory agencies are all being called upon to look at. and potentially litigate about, the same behaviour. On the contrary, it appears to me to be entirely appropriate that before plunging ahead, one tribunal should take into account what another tribunal is doing or was designed to do.

158. Now, of course. Mr. Kopyto is quite correct that in each forum and under each statute the rights, remedies and procedures are different. For example, in the Courts and under the Code. Ms. Musty can get or may have to pay "costs". Before this Board she cannot obtain costs nor does she have to worry about paying them. In the Courts. Ms. Musty can (potentially) get punitive damages or significant sums for mental distress, while neither this Board nor a board of inquiry give punitive damages, compensation for mental distress under the Code is capped at $10,000, and this Board has no established practice of compensating employees for stress. Under the Code there are special remedies for harassment situations including continuing supervision of the workplace, but there is also a full right of appeal to the Courts on all matters of fact or law. Under the OHSA, there is no similar remedy specified and no similar right of appeal, but the Board's decision is protected by a privative clause. Under the OHSA the Ministry of Labour can move directly to prosecute persons who have breached the OHSA, while under the Code, a quasi-criminal prosecution requires the consent of the Attorney-General. By contrast, the Workers' Compensation Act is a no-fault scheme which, if triggered, precludes other statutory and common law remedies once it is determined that a disabling condition really is related to the situation in the workplace (and not other aspects of an employee's life).

159. However, in my view, this jurisdictional jumble merely illustrates the problem, and is, some­thing that the Board should take into account before embracing a novel legal proposition, and generating another layer of litigation.

160. I do not think that it is necessary to multiply the examples. The fact is, what this case is really about is sexual harassment in the workplace and what is necessary to remedy that situation -both for Ms. Musty herself, and for other employees working in the allegedly "poisoned work environment". This is not an area in which this Board can claim any specific expertise, and it is debatable whether there is a foundation for intervention under the OHSA - and then only if the circumstances fit the narrow, no-reprisal provisions of section 50. And if a breach of section 50 were established, there is no reason to believe that this Board's remedial authority is as broad as that of the Commission or a board of inquiry - or that this Board could even impose the range of remedies that Meridian has already agreed to. This Board has never undertaken its own investiga­tions, organized or imposed anti-harassment programs, supervised a workplace on a continuous basis, inserted a "just cause" clause into a collective agreement or contract of employment, invested a health and safety committee with quasi-judicial powers to adjudicate discrimination complaints, ordered an employer to punish a supervisor, or even given significant damages for mental distress.

161. Whether or not these particular remedies are available under the Code in this case. I think that it is clear that the Commission and/or a board of inquiry are better situated to deal with these problems than this Board is under section 50 of the Occupational Health amid Safety Act. Indeed. since Meridian says that it is trying to get the grievor back to work, and the grievor says that it is first necessary to rectify the poisoned work environment, the central issue in this case is not reprisal or reinstatement but rather remedying harassment and gender discrimination - something that falls squarely within the central jurisdiction of the Commission under the Code. The situation in this case is not unlike that before the Board in David Gazit v. Ontario Public Service Employees' Union and George Brown College, (Board Files 0616-95-U and 0617-95-U), where the Board declined to enquire into the complaint and observed:

……All of Mr. Gazit's concerns are, at root, his assertion that he has been subjected to an ongoing pattern of discriminatory treatment by reason of his age, creed, and sex. His concern about a "poisoned work environment" all stem for what he has consistently asserted are human rights violations.... Even assuming that the withdrawal of [the Human Rights complaints] might be a factor in my determination. the complaints were extant when the issue was put before me. Mr. Gazit is forum shopping. It is inappropriate, and an enormous waste of public and private resources. All of the concerns that Mr. Gazit has raised are before the Human Rights Commission. The remedies he seeks area also more within the ambit of the Commission's usual and often broader, remedial work.

45. The Board in Meridian drew two important conclusions. Firstly, that sexual harassment in the form raised by the application was arguably within the Board's jurisdiction under section 50 of the OHSA. Secondly, because the Commission's role under the Code was explicitly tailored to deal with issues of discrimination, the Board should defer to the Commission's process.

46. In coming to the second conclusion, the Board noted that the Code and the Commission's process, from investigation and mediation, through to adjudication and remedial authority, is con­structed precisely to deal with the particular character of human rights issues. In contrast, the appropriate subject matter of the Board's inquiry under the OHSA is defined in broad and open ended terms.

47, The Board in Meridian assumed as a question of statutory interpretation that where two statutory tribunals have a concurrent jurisdiction, that the legislature must have intended the tribunal with the more specifically defined jurisdiction to deal with applications that on their face appear to fall within the more limited jurisdiction, The Board concluded that as the application before it was "really about" sexual harassment, it should defer to the Commission,

48, The application in Lyndhurst, as in Meridian, alleged acts of sexual harassment as both hazard and reprisal pursuant to section 50(2) of the OHSA, Unlike the present case, the respondent in Lyndhurst argued as a preliminary matter that sexual harassment could not be considered a hazard for purposes of the OHSA and that on this theory, no prima facie case was made out, The Board there, rejected the respondent's preliminary argument and proceeded to hear the matter on the merits.

49. The Board in Lyndhurst observed that neither party had requested that it defer to the Commission. At paragraph 66, the Board concluded that it would be inappropriate to defer to the Commission where neither party had raised the issue:

50. As indicated in our July decision the Board considered staying the matter on its own motion in favor of the then outstanding complaint under the Human Rights Code. That application has now been discontinued, and we are no longer faced with the problems of two parallel proceedings and potential inconsistent findings. The Board is very much concerned with duplication of litigation. and might well have deferred this matter had the other proceeding not been ended. However, neither party argued for deferral even when the other complaint was outstanding: the employer opted not to make that motion. We are of the view that these are not the appropriate circumstances for the Board to do so of its own motion.

51. The Board's decisions in both Meridian and Lyndhurst stand for the proposition that sexual harassment as hazard or reprisal conduct is arguably within the Board's jurisdiction when forming the basis of an application pursuant to section 50(2) of the Act. In Meridian, the parties raised the issue of deferring to the Commission and the Board decided that if the real issue is one of human rights, then there should be deferral. The majority decision in Lyndhurst does not address this point.

52. In our view, the reasoning in Meridian is incontrovertible. Unlike the respondent, we do not read Lyndhurst as being inconsistent with Meridian.

Meridian-Applied to Race Discrimination

52. The next question to be addressed is whether the deferral analysis in Meridian should be applied where the type of discrimination and harassment complained of is on the basis of race as opposed to gender.

53. The Code clearly prohibits discrimination and harassment on the basis of race. In section 5 of the Code, these prohibitions are expressly stated to apply in the workplace and with respect to employment:

54. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences. marital status, family status or handicap.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or handicap.

54. It is also the case that the Code prohibits reprisal conduct against a person for having attempted to assert rights under the Code including rights with respect to discrimination and harassment on the basis of race in the workplace:

55. 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.

56. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

55, Part IV of the Code provides an extensive grant of authority to the Commission to receive complaints that the Code has been breached, to investigate and if necessary to seek adjudication. In particular, sections 32(1), 33(l) and 36(1) state the following, all of which apply to complaints of harassment and discrimination on the basis of race or reprisal conduct for the same, in the workplace:

32.(1) Where a person believes that a right of the person under this Act has been infringed, the person may file with the Commission a complaint in a form approved by the Commission.

33. (1) Subject to section 34, the Commission shall investigate a complaint and endeavour to effect a settlement.

34. (1) Where the Commission fails to effect a settlement of the complaint and it appears to the Commission that the procedure is appropriate and the evidence warrants an inquiry, the Commission may request the Minister to appoint a board of inquiry and refer the subject-matter of the complaint to the board.

35. Not only does the Code contemplate that the Commission should possess a particular expertise with respect to human rights matters, but there are provisions which expressly provide for a race relations expertise. Sections 28 and 29(f)(g)and (h) of the Code are as follows:

36. (1) The Lieutenant Governor in Council shall designate at least three members of the Commission to constitute a race relations division of the Commission and shall designate one member of the race relations division as Commissioner for Race Relations.

(2) It is the function of the race relations division of the Commission to perform any of the functions of the Commission under clause 29 (f). (g) or (h) relating to race, ancestry, place of origin, colour, ethnic origin or creed that are referred to it by the Commission and any other function referred to it by the Commission.

29. It is the function of the Commission,

(f) to inquire into incidents of and conditions leading or tending to lead to tension or conflict based upon identification by a prohibited ground of discrimination and take appropriate action to eliminate the source of tension or conflict;

(g) to initiate investigations into problems based upon identification by a prohib­ited ground of discrimination that may arise in a community, and encourage and co-ordinate plans, programs and activities to reduce or prevent such problems;

(h) to promote, assist and encourage public, municipal or private agencies, organi­zations, groups or persons to engage in programs to alleviate tensions and conflicts based upon identification by a prohibited ground of discrimination.

57. Having regard to the provisions of the Code referred to above, the analysis in Meridian in our view applies equally to applications under section 50(2) of the OHSA which deal with issues of harassment and discrimination on the basis of race. There can be little doubt that the Legislature clearly intended the Commission to deal with complaints of harassment and discrimination in the workplace on the basis of race, including reprisal complaints.

Characterization

58. In Meridian, the question posed was "what is this case really about?". We now deal with how this matter should be characterized.

59. Unlike the applications in Meridian and Lyndhurst, there are portions of this application based on allegations of physical hazards which are not expressly identified as acts of discrimination. This undoubtedly makes the task of characterization more difficult.

60. The theory of deferral assumes that an application can be characterized in a particular way and on that basis, dealt with by the appropriate tribunal. This exercise requires an assessment of what it is that a particular tribunal is supposed to be doing.

61. Under section 50 of the OHSA, the Board is supposed to determine whether an employee has been subject to a reprisal for having attempted to exercise rights with respect to health and safety in the workplace. The Commission's role under the Code, is in a broad sense, to decide whether a person has suffered an act of discrimination. Is this application about one, or the other, or both? This is the choice which lies at the heart of the question of characterization posed in Meridian.

62. Reprisal conduct by definition is a response to some form of action. In the Board's experience, reprisals for the purpose of section 50(2) of the OHSA usually occur after an employee attempts to exercise some statutory right concerning health and safety in a manner which brings this attempt to the attention of the employer. Most commonly, there is one or a number of discrete but obvious acts on the part of an employee to obtain some benefit under the statute concerning a health and safety issue. There is usually a temporal connection between the employee's conduct and the reprisal.

63. The reprisal component of a complaint can take many forms. A reprisal is at its broadest, treatment to the employee's detriment. This may take a variety of forms, but to be a reprisal, it must always be some form of burden or disadvantage that is in response to the employee's conduct.

64. An act of discrimination may be like a reprisal to the extent that it is a burden or disadvan­tage. Part of the notion of discrimination however, is that the burden or disadvantage is not in response to conduct, but rather occurs in response to the personal and inherent characteristics of the individual. In Andrews v. Law Society of British Columbia 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143 at 174, McIntyre J., offered the following definition of the term "discrimination":

Discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations or disadvantages not imposed on others, or withholds or limits access to opportunities, benefits and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed.

65. It is also the case that discrimination does not always appear on its surface to be a burden or disadvantage in response to personal characteristics. It is easy to say that receiving a racist comment from a co-worker is probably an act or discrimination (as well as harassment), but discrimination can also take the form of an unsafe work environment, or a lack of appropriate training. Indeed, adjudicators in human rights cases have recognized that findings of discrimination will usually be made on the basis of circumstantial evidence only. In Human Rights in Ontario (Carswell), 2d, 1992, Judith Keene at page 337 comments:

It is a fact of life that, in most cases, discriminatory actions are not manifested openly before appropriate witnesses. Boards of inquiry have acknowledged the purpose of the legislation in accepting and drawing inferences from appropriate circumstantial evidence. One early case ad­dressed the issue in some detail. In Kennedy v. Mohawk College, (1973) unreported (Ont. Bd. of Inquiry) the Board noted:

Discrimination on the grounds of race or colour are [sic] frequently practised in a very subtle manner. Overt discrimination on these grounds is not present in every discriminatory situation or occurrence. In a case where direct evidence of discrimination is absent, it becomes necessary for the Board to infer discrimination from the conduct of the individual or individuals whose conduct is in issue. This is not always an easy task to carry out.

66. Aside from what are probably acts of harassment as well as discrimination, it may not be possible to characterize a matter as either an act of discrimination or as a health and safety reprisal if one looks only at the disadvantage or detriment experienced by the applicant. The distinguishing characteristic will be what caused the treatment; was it conduct in the pursuit of rights under the statute, or rather, the applicant's inherent characteristics?

67. The application alleges that the applicant experienced detrimental treatment, "from the time the applicant commenced working..." and lasted for the entire period of his employment. Although there are arguably, allegations that the applicant took steps which were efforts to exercise rights under the OHSA (referred to in paragraph "25" above) it could not be said that these efforts would clearly be understood by the respondent to have that character. This is not definitive, but it is a factor to be considered in trying to decide what it is that this case is about.

68. In our view, the duration of the applicant's alleged detrimental treatment, the ambiguity surrounding the issue of whether the respondent would have known that the applicant was pursuing rights under the OHSA (except for the filing of the application itself), as well as the allegations of racist comments and verbal epithets, lead us to conclude that the application is in essence a complaint about race discrimination. The fact that the applicant alleges that he experienced physical hazards in the workplace does not mean that this is still not a complaint about discrimination. The presence of these allegations is consistent with the view that discrimination will manifest itself subtly, and usually be established by indirect or circumstantial evidence.

The Commission's Competence

69. It is clear that we have not considered any extrinsic evidence in determining that the Commission should more appropriately deal with this application than the Board. In our view, the correct approach in deciding this issue is to confine ourselves to a comparative statutory analysis. Questions concerning the Commission's competence should be left to the courts or the legislature, each in their own sphere,

70. There is little doubt and we would take administrative notice of the fact, that a number of communities have taken issue with the efficacy of the Commission. Even if we had permitted the applicant to call evidence to this effect, the Board is not competent to determine if the Commission is doing its job generally or more particularly, whether it is likely that the Commission would deal with the applicant's complaint in a manner consistent with the Code. It is not for the Board to take over the role of the Commission with respect to discrimination in the workplace, even if the Commission were to have failed to fulfil its mandate in this regard. That is also what this case is really about.

V

71. The applicant is concerned that the Commission may defer to the Board or a board of arbitration. We can only observe that the applicant has elected to go before the Board rather than a board of arbitration, as he is entitled to do under section 50(2) of the OHSA. If he is entitled to make this election, it is difficult to see how he could be required to go before a board of arbitration. It also seems unlikely that the Commission would following our decision, send the matter back to the Board. Here as well as in Meridian, the Board has been at pains to explain why this type of application is more appropriately before the Commission. The Commission now has the benefit of our detailed reasoning on this issue which is the same one raised in a deferral pursuant to section 34(1 )(a) of the Code.

72. Finally, in terms of the timeliness of the application were it to be brought to the Commission, we would note that the matter here was filed within days of the events in issue. The delay between the filing of the application and this decision is due to the Board's process and is in no way attributable to the parties' conduct.

73. The Board has in other cases deferred to another tribunal, but held a matter in abeyance pending a determination by the other tribunal. This may be appropriate where both the Board and the other tribunal exercise a similar expertise and have a concurrent jurisdiction. Given our characterization of the issues here, it is not appropriate for the Board to remain seized of the matter pending deferral to the Commission. For these reasons, we decline to inquire into this matter and the application is dismissed.