CITATION: City of Toronto v. Canadian Union of Public Employees, 2023 ONSC 2122
DIVISIONAL COURT FILE NO.: 363/22
DATE: 20230405
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lococo, Trimble and O’Brien JJ
BETWEEN:
City of toronto
Applicant
– and –
CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 79
Respondent
A. Esonwanne, for the Applicant
D. Wray and E. Carr, for the Respondent, Canadian Union of Public Employees, Local 79
HEARD: at Toronto on February 28, 2023
O’BRIEN j.
reasons for decision
Overview
[1] This application for judicial review arises from an arbitrator’s decision reversing a grievor’s termination from employment. The grievor, Michael Rushton, is a municipal standards officer with the City of Toronto. He initially lost his employment because of an incident at Centennial Park in Toronto on June 16, 2020.
[2] The incident occurred during the COVID-19 pandemic when city-wide restrictions were in place. Two Black women, longtime Torontonians, Eva Amo-Mensah and Deborah Ampong (the “complainants”) were exercising in Centennial Park, which was closed to the public. The complainants and others had entered Centennial Park through an open gate. When Mr. Rushton saw that the park was being used, he tried to confront other individuals leaving through the south gate. He then drove to the north gate, where two teenaged soccer players and the complainants were climbing over the gate.
[3] Following their interaction with Mr. Rushton, the complainants filed a complaint with the City. They complained that Mr. Rushton (1) told them they could be shot for trespassing; (2) demanded to see the complainants’ identification and not the identification of the two white teenagers; and (3) attempted to record the complainants’ licence plate number after telling them they were “free to go.”
[4] The City hired an external investigator, who concluded that Mr. Rushton’s conduct towards the complainants violated the Human Rights Code, R.S.O. 1990, c. H.19 (“Code”) as well as the City’s Human Rights and Anti-Harassment/Discrimination Policy and failed to serve the public in accordance with the values set out in the City’s Public Service By-Law. The City therefore terminated Mr. Rushton’s employment. Mr. Rushton’s union, the Respondent, filed a grievance to challenge the dismissal.
[5] The labour arbitrator appointed by the parties concluded that although the City had established just cause for discipline, he was unable to find the grievor's misconduct was racially motivated. He substituted a 30-day suspension for the discharge.
[6] The City seeks judicial review of the arbitrator’s decision on two primary bases: (1) that he applied the incorrect test for discrimination by requiring proof of racial motivation; and (2) that the award lacked transparency, intelligibility and justification in how the arbitrator treated critical evidence before him. The City focused specifically on the arbitrator’s treatment of evidence regarding how Mr. Rushton addressed the teenaged soccer players, such as whether he asked them for identification.
[7] The union submits that the arbitrator’s reference to motive did not reflect his articulation of the test for discrimination. It instead represented his response to the City’s allegation that Mr. Rushton’s conduct was racially motivated. The union further submits that this Court should not interfere in the arbitrator’s factual findings.
[8] There is no dispute that Mr. Rushton treated the complainants in an inappropriate and reprehensible manner. The union does not contest that the 30-day suspension was appropriate for what it acknowledges was serious misconduct. It is also clear that the test for discrimination does not require discriminatory motive.
[9] However, I agree with the union that the City has not demonstrated a basis for this Court to interfere in the arbitrator’s decision. The primary question before the arbitrator was not whether discrimination had occurred in any form but whether the City had just cause to discipline Mr. Rushton. The City alleged before the arbitrator that the complainants were treated differently from the teenaged soccer players. Its focus was on Mr. Rushton having “singled” the complainants out for adverse treatment compared to the soccer players, rather than on another theory of discrimination, for example, one that relied on racial profiling or racial stereotyping. While the arbitrator made reference to motive in his reasons, he also expressly found that the complainants were not “singled out” for adverse treatment. Given these findings, the facts do not support a conclusion that Mr. Rushton discriminated against the complainants in the manner alleged by the City.
[10] On the second point, the City has not shown the exceptional circumstances that would allow this Court to engage in a reweighing of the evidence before the arbitrator.
[11] For the reasons further elaborated below, I would dismiss the application.
Issues
[12] The issues to be determined are:
Did the arbitrator err in requiring racial motivation for a finding of discrimination?
Did the arbitrator’s award lack transparency, intelligibility and justification in its treatment of the evidence?
Standard of Review
[13] There is no dispute that the standard of review is reasonableness. In two appeals reviewing decisions of the Ontario Labour Relations Board, the Court of Appeal recently reiterated key principles of a reasonableness review from Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653. Specifically, as set out in Turkiewicz (Tomasz Turkiewicz Custom Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1, 2022 ONCA 780, at para. 55 and adopted in Enercare Home & Commercial Services Limited Partnership v. UNIFOR Local 975, 2022 ONCA 779, at para. 44, courts must start from the principle of judicial restraint:
Courts are to intervene in administrative matters only if it is truly necessary to safeguard the legality, rationality, and fairness of the administrative process. Such reviews start from the principle of judicial restraint and respect for the distinct role of decision makers (para. 13 [of Vavilov]). The reviewing court should respect administrative decision makers and their specialized expertise, should not ask how they themselves would have resolved an issue, and should focus on whether the applicant has demonstrated that the decision is unreasonable (para. 75 [of Vavilov]).
Analysis
Did the arbitrator err in requiring racial motivation for a finding of discrimination?
[14] The City points to several instances where the arbitrator stated in his reasons that Mr. Rushton was not racially motivated. To provide a few of many examples, the arbitrator stated the following:
“I am unable to find that the grievor’s misconduct was racially motivated” (p. 1 of his reasons);
“It was an emotional case for the grievor who recognized some wrongdoing, but insisted that his actions were not racially motivated.” (p. 17)
“As I have not been presented with compelling evidence that the grievor’s behaviour was racially motivated, the termination cannot stand.” (p. 29)
[15] The union states the arbitrator reached these conclusions in direct response to the City’s submission, which was that Mr. Rushton had acted in a racially motivated manner. It also emphasizes that it is a serious allegation to suggest that following a ten-day hearing, the arbitrator completely mischaracterized the City’s position.
[16] The union points to the arbitrator’s decision, which summarizes the City’s allegations as follows, at p. 1:
It is alleged the grievor’s conduct was racially motivated and a violation of the City’s Human Rights and Anti-Harassment/Discrimination Policy (“HRAP”), the Human Rights Code, and the City’s Public Service By-Law. (emphasis added)
[17] The arbitrator also found at p. 26 that the grievor made the “trespass and shoot” comment, “but that it was not exclusively made to the complainants and thus was not a racially motivated comment as alleged by the City.” (emphasis added)
[18] The union additionally points to Ms. Amo-Mensah’s initial complaint to the City, an email dated June 16, 2020, in which she stated that “Officer Rushton uttered racially motivated anti-black language at us.” (emphasis added)
[19] In order to demonstrate a prima facie case of discrimination under the Code, a complainant need only establish the following: (1) that they are a member of a group protected by the Code; (2) that they were subjected to adverse treatment; and (3) that the protected ground was a factor in the alleged adverse treatment: Shaw v. Phipps, 2010 ONSC 3884, 325 D.L.R. (4th) 701, at para 47.
[20] It has long been held that intention is not a required element of discrimination under the Code: Ont. Human Rights Comm. v. Simpsons-Sears, 1985 18 (SCC), [1985] 2 S.C.R. 536, at p. 549; Peel Law Association v. Pieters, 2013 ONCA 396, 116 O.R. (3d) 81, at paras. 111-12; Phipps, at para. 76. The focus is instead on the impact on the individual, regardless of any discriminatory intent or motive. It is also unnecessary to show direct evidence of discrimination; discrimination may be proved by circumstantial evidence and inference: Pieters, at paras. 111-12.
[21] I do not find it necessary to determine whether the City officially took the position before the arbitrator that Mr. Rushton was racially motivated. Counsel on this application, who were both counsel before the arbitrator, provided different versions of events. It may be that the City’s counsel stated during the course of the arbitration that Mr. Rushton was racially motivated or that the arbitrator inferred this to be the City’s position because of statements by witnesses.
[22] However, the arbitrator never stated that motivation was a required element for a finding of discrimination. It must be remembered that the central issue before him was not to determine whether discrimination had occurred in any form, but whether the City had just cause to terminate the grievor’s employment. A finding of discrimination does not necessarily lead to termination from employment although a finding of intentional discrimination would be more likely to do so.
[23] Given that the arbitrator’s central task was to determine whether the City had just cause to terminate, the crux of his factual findings and analysis responded to the City’s submission. Regardless of whether or the degree to which the City emphasized racial motivation, what is clear is that the City was alleging Mr. Rushton had “singled” the complainants out in a manner that constituted anti-Black racism and/or harassment. In the termination letter, the City stated in part that Mr. Rushton had engaged in anti-Black racism/discrimination by “singling” the Complainants out to demand identification. The City’s factum before this Court summarized its position as follows:
The City discharged the Grievor on various grounds, including violating of the Code and the City's Human Rights and Anti-Harassment/ Discrimination Policy ("HRAP") by engaging in discrimination in singling out only the Complainants to make a comment about shooting, to demand their identification ("ID"), and to record the license plate number of their vehicle. [emphasis added]
[24] In response to this submission, the arbitrator made findings that Mr. Rushton did not single the complainants out and treat them differently than the soccer players as follows:
A. Trespass and Shoot
[25] The arbitrator was not persuaded Mr. Rushton made the “trespass and shoot”[^1] comment only to the complainants. He reasoned that the soccer players were in the same small area as the complainants when the comment was made. Mr. Rushton was wearing sunglasses so it was not evident where he was looking when he made the comment. He also had made a similar comment to a group of teenagers on another occasion. Finally, the arbitrator had some concerns about the reliability of Ms. Amo-Mensah’s evidence because she was climbing over the fence at the time the comment was made. She may not have been able to accurately assess where the comment was directed. In other words, the arbitrator found the complainants were not singled out for this treatment.
B. Request for Identification
[26] The arbitrator also found that the complainants were not singled out with respect to the second allegation. He noted that on the evidence there was nothing inappropriate about a municipal standards officer requesting identification. In the videos of the incident, Mr. Rushton only asked the complainants once for identification and repeatedly stated he had also asked the soccer players for identification. The arbitrator found his explanation that he asked both groups for identification to be plausible. He was not persuaded the request for identification was directed solely at the complainants as alleged.
C. Licence Plate
[27] Mr. Rushton’s conduct in seeking to obtain the complainants’ licence plate is somewhat different, as it less clearly involved the soccer players, who did not have a car at the park. However, City counsel submitted in this Court that Mr. Rushton continued to treat the complainants differently from the soccer players by seeking their licence plate when he did not take further enforcement steps against the soccer players. The arbitrator had serious concerns about Mr. Rushton’s insistence on obtaining the complainants’ licence plate, with no legitimate reason. Indeed, he found Mr. Rushton’s conduct at this point was “intended to antagonize the complainants.” The arbitrator stated that although he found the grievor’s conduct to be reprehensible, he did not find it to be racially motivated.
[28] While the City submits the complainants were “singled out” with this treatment, it also describes this conduct as harassment of the complainants. On this issue, the arbitrator did not focus only on whether Mr. Rushton treated the complainants differently from the soccer players. He went further in his analysis, stating: “There is no evidence that race had any part in his decision-making process, as poorly as that decision may have been. There are no racialized comments or gestures and none are alleged.”
[29] In this Court, the City relied on R. v. Sitladeen, 2021 ONCA 3030, a case in which a Black man was pulled over for suspected impaired driving and wrongfully arrested for driving while suspended. The issue was the test to address whether the police had engaged in racial profiling. The Court of Appeal confirmed at para. 54 that the trial judge is to consider all the circumstances to “determine whether they correspond to the phenomenon of racial profiling, as understood in the social science literature, the reports of inquiries into race relations with police, and the case law.”
[30] The City did not rely on this or other racial profiling cases before the arbitrator, nor provide any social science or expert evidence supporting the existence of racial profiling or racial stereotypes in Mr. Rushton’s treatment of the complainants. It did rely on Symonds v. Halifax Regional Municipality, 2021 37128 (NS HRC), a case before the Nova Scotia human rights Board of Inquiry, in which the Board found that race was a factor in police officers ticketing a Black man for jaywalking. In that case, one of the parties asked the Board to take judicial notice of poor relations between the police and Black community. The Board was also referred to reports and legal opinions regarding race relations in Canada.
[31] Reports or other evidence regarding race relations in the community would not have been required for a finding of discrimination in this case. The courts have recognized repeatedly that anti-Black racism “is a part of our community’s psyche” in the sense that negative racial stereotypes are widely held: R. v. Parks (1993), 1993 3383 (ON CA), 15 O.R. (3d) 324 (C.A.); Pieters, at para. 113. But the absence of such evidence and limited attention to such submissions reflects the City’s primary focus before the arbitrator. In addition to focusing on Mr. Rushton’s treatment of the complainants as compared to the soccer players, the City led evidence of a prior incident in which Mr. Rushton allegedly made a comment about an Arab youth wearing what looked like a bomb vest. The City claimed the comment (which the arbitrator found had no probative value) showed Mr. Rushton’s propensity to make a racialized comment. In short, the City’s aim was to demonstrate a more intentional (or in any event explicit) type of discrimination, primarily by arguing that Mr. Rushton treated the complainants differently from the immediate comparator group, the soccer players, who were present throughout the encounter.
[32] Although I accept it was open to the arbitrator to infer from all the circumstances that race was a factor in Mr. Rushton’s treatment of the complainants, he did not do so in response to the submissions before him. Again, the central question was not the existence of discrimination in any form, but whether the City had just cause to dismiss Mr. Rushton. After concluding that the complainants were not singled out for adverse treatment as compared to the soccer players, the arbitrator did not otherwise find discrimination of the type alleged by the City with respect to the licence plate.
[33] In Vavilov at para. 125, the Supreme Court of Canada cautioned reviewing courts against reweighing and reassessing evidence considered by the tribunal. Absent exceptional circumstances, the reviewing court should not interfere with the tribunal’s factual findings: see also Enercare, at para. 82; Turkiewicz, at para. 101. The City has not demonstrated exceptional circumstances that would allow this Court to interfere in the arbitrator’s factual findings. Accordingly, this ground of review is dismissed.
Did the arbitrator’s award lack transparency, intelligibility and justification in its treatment of the evidence?
[34] The City’s challenge to the arbitrator’s treatment of the evidence focused on the finding that Mr. Rushton asked the soccer players for identification. The City disputes this finding on numerous bases, including the following:
(a) The complainants’ unwavering testimony that Mr. Rushton did not ask the soccer players for identification.
(b) Although Mr. Rushton testified that his practice was to ask for identification after introducing himself, there was no finding that he introduced himself.
(c) The male soccer player stated in one of the video recordings that Mr. Rushton had not asked the soccer players for identification.
(d) There is no corroborating evidence to support Mr. Rushton asking the soccer players for identification.
[35] I disagree that the arbitrator’s award on this factual point lacked transparency, intelligibility and justification. The arbitrator considered the different versions of the incident and explained his reasons. He considered Mr. Rushton’s evidence that he typically asks for identification when determining whether to issue a caution or as part of a decision as to whether a violation occurred. He then accepted that Mr. Rushton asked for identification out of reflex in this case.
[36] Contrary to the City’s submissions, the arbitrator explained that, although the complainants believed Mr. Rushton had asked only them for identification, it was difficult to know precisely what was said. Each of the witnesses presented a slightly different version of events, with their own version changing under cross-examination.
[37] With respect to the video, the arbitrator carefully set out his reasons for finding the male teenaged soccer player’s statement to be unreliable.
[38] In sum, the arbitrator found, on a balance of probabilities, that the request for identification was not directed solely at the complainants. He explained his reasons for doing so in a transparent and intelligible manner. The City has not identified exceptional circumstances that would justify this court engaging in a reweighing of the evidence.
Conclusion
[39] The arbitrator recognized that the circumstances of this case arose shortly after the murder of George Floyd in the United States and at a time of heightened awareness to racist behaviour by law enforcement. He accepted that racism is prevalent in Canada and understood that the complainants sincerely believed they had been targeted because of their race. However, as he stated, he was required to assess the evidence before him. On that evidence, he rejected the submission that Mr. Rushton had treated the complainants differently from the soccer players and singled them out for adverse treatment. He found Mr. Rushton’s conduct to be reprehensible, but not racist in the manner alleged by the City in support of its position that it had just cause to dismiss him. His findings that Mr. Rushton did not treat the complainants differently from the soccer players and that race was not a factor in the manner alleged by the City in seeking the complainants’ licence plate warrant deference from this court.
Disposition
[40] Accordingly, the application is dismissed.
[41] After considering the parties’ costs proposals, I find costs of $7,000 to be appropriate. Therefore, the City shall pay costs of $7,000 to the union.
O’Brien J.
I agree _______________________________
Lococo J.
I agree _______________________________
Trimble J.
Released: April 5, 2023
CITATION: City of Toronto v. Canadian Union of Public Employees, Local 79, 2023 ONSC 2122
DIVISIONAL COURT FILE NO.: 363/22
DATE: 20230405
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lococo, Trimble and O’Brien JJ
BETWEEN:
City of toronto
Applicant
– and –
CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 79
Respondent
REASONS FOR DECISION
O’BRIEN, J
Released: April 5, 2023
[^1]: Mr. Rushton admitted to making a comment about trespassing and shooting. The arbitrator stated that all the witnesses had different recollections of the exact words used. The arbitrator did not resolve the discrepancies but instead referred to the comment throughout his reasons as the “trespass and shoot” comment.