PSGB# P-2019-1091

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Paul

Complainant

• and -

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

Employer

BEFORE

Andrew Tremayne

Vice-Chair

FOR THE COMPLAINANT

FOR THE EMPLOYER

Tristan Paul

Jordanna Lewis

Treasury Board Secretariat

Legal Services Branch

Counsel

HEARING

Written submissions completed December 15, 2020

Decision

1This decision deals with the employer's preliminary motion to dismiss the complaint without a hearing. The employer's first objection is to the Board's jurisdiction to hear and decide the complaint on the merits. In the alternative, argues the employer, the Board should dismiss the complaint because it does not disclose a prima facie case. The employer's submissions relate primarily to whether the complaint was brought forward within the Board's mandatory timelines, whether the subject matter of the complaint and the remedies requested fall within the Board's jurisdiction, and whether the complaint discloses a prima facie case that the employer has breached a term or condition of the complainant's employment.

2The complainant disagrees, arguing that his complaint is timely and that he has made out a prima facie case of a breach of a working condition or terms of his employment as well as a prima facie case of discrimination under the Ontario Human Rights Code.

3The employer acknowledges that it bears the onus to demonstrate that the complaint should be dismissed without a hearing on the merits. The employer also accepts that if the complaint discloses a prima facie case of discrimination under the Ontario Human Rights Code, the Board has the jurisdiction to hear the complaint regardless of whether the complaint discloses a prima facie case of a breach of a term or condition of the complainant's employment.

Background and Context

4For this decision, the Board assumes that the facts set out in the complaint are true or could be proven, and a brief review of these facts is helpful to provide background and context. The complainant, Mr. Paul, is employed by the Ministry of the Solicitor General as a Sergeant (COM01). He alleges that he has been unfairly denied developmental, promotional, and other work-related opportunities by the employer for discriminatory and improper reasons. His complaint also alleges that he has been the target of workplace bullying and harassment, that the employer has failed to address his concerns about this, and that the employer has otherwise acted in bad faith towards him. Mr. Paul self-identifies as a young, visible-minority male of Indo-Caribbean/South Asian descent.

5Mr. Paul's "home" position is at the Toronto East Detention Centre (TEDC), where he has been a Sergeant since approximately 2015. In 2017, there was a job competition for several permanent Staff Sergeant (COM01) positions at the Toronto South Detention Centre (TSDC). Mr. Paul applied to the competition and was interviewed, but he did not get one of the permanent Staff Sergeant positions. However, he was offered and accepted a temporary assignment as a Staff Sergeant at the TSDC.

6In September 2018, pursuant to an "expression of interest" (EOI), he was given an opportunity to act as a Deputy Superintendent of Operations at TSDC, which he accepted. Mr. Paul alleges that while he was at TSDC, he was the target of workplace bullying and harassment.

7In May 2019, Mr. Paul was informed that he would be returned to his home position at the TEDC. He says that a short time later, he learned that he had received the highest score in the 2017 competition for the permanent Staff Sergeant positions, which is something he had not known until then. Soon after that, he started the process that led to the filing of this complaint.

8In his complaint, Mr. Paul says that he should not have been removed from the acting position as Deputy Superintendent of Operations at TSDC and returned to his home position. He alleges that the employer did so for reasons that are discriminatory and improper and that the employer acted in bad faith. He also says that he ought to have been awarded a full-time Staff Sergeant position after the 2017 competition, and he alleges that the employer failed to do so for the same or similar reasons.

9Mr. Paul says that being told that he would be returned to his home position at the TEDC was the culmination of the arbitrary, discriminatory, and bad faith treatment he received from the employer at the TSDC. For example, in his complaint Mr. Paul says that senior management did not support him in dealing with a Corrections Officer who would not follow his direction and that he was told, without explanation, that he could not issue a letter of counsel to the insubordinate employee despite having the grounds to do so. He also alleges that a senior manager improperly and groundlessly accused him of wrongdoing in another matter. The confidentiality of workplace mediations that he participated in with senior management was breached, and baseless comments were made by senior management about his posture during meetings. Mr. Paul adds that he was bullied and harassed by peers and subordinates in the workplace and that when he reported these incidents to senior management, he was ignored and no action was taken.

10In June 2020, the complainant brought a motion for production of documents related to the 2017 job competition. The Board granted the motion in part, finding that the final scores from the 2017 job competition and the name and race of the successful candidates are arguably relevant to the matters raised in the complaint. The employer was directed to produce this information to the complainant, which it did.

11The information confirms that Mr. Paul received the highest score in the competition (89%). All three of the successful candidates had lower scores than Mr. Paul. In response to the Board's direction to disclose any information held by the Ministry about the race of the successful candidates, the employer said that at the time of the competition, it did not ask any of the candidates about their race and that it does not typically collect this information. The employer was nevertheless able to provide information about race based on its "after-the-fact visual assessment/perception of the successful candidates' races." Two of the successful candidates are described as "racialized." These candidates received scores of 62% and 72%. The third candidate, who is described as "white," received a score of 52%.

Prima Facie Case

Parties’ Submissions

12For this preliminary motion only, the employer accepts that the complainant is covered by the enumerated ground of race, is a visible minority, and, being of South-East-Asian descent, is entitled to be protected from discrimination based on ethnicity and place of origin.

13However, submits the employer, the complainant merely asserts that his failure to secure full-time permanent status at TSDC is, in and of itself, adverse treatment. The complaint does not identify a term or condition of employment that entitles him to a position at TSDC, nor has he identified a term or condition of his employment that the employer has breached. Therefore, no adverse treatment can be found because he has not established that he is entitled to a position of any kind at TSDC as a term or condition of his employment

14The complainant's allegations of bullying and harassment involve his co-workers and have no nexus to the allegations against the employer or the other allegations in the complaint, submits the employer. Moreover, challenging interactions that the complainant had with his co-workers and subordinates and the uncomfortable meetings he had with senior managers are not prima facie proof of adverse treatment. The employer adds that these allegations are vague and lacking in detail, and that the Board would need to assume discriminatory intentions on the employer's part to find adverse treatment.

15Finally, the employer submits, the complaint does not set out allegations from which, even if they are assumed to be true or could be proven, the Board could find that the complainant's race, ethnicity, or place of origin were a factor in the alleged adverse treatment. The only facts alleged in the complaint related to the enumerated grounds identified by the complainant are that despite scoring the highest in the 2017 competition, Mr. Paul was not awarded a permanent Staff Sergeant position at TSDC at that time.

16However, argues the employer, of the three successful candidates, two were also "racialized persons," according to the employer's information. There is nothing in the complaint that could lead to a finding that he was discriminated against contrary to the Code. The fact that he was not successful in securing a permanent position is not, in and of itself, proof of discrimination, especially given that two of the successful candidates were racialized. Moreover, the complainant was offered and accepted an acting position as a Staff Sergeant. Then he was offered and accepted an opportunity to act as a Deputy Superintendent of Operations, which lasted until 2019. These are not facts from which the Board can find adverse treatment, argues the employer.

17The employer submits that the complainant has made bald allegations of discrimination devoid of any real or cogent particulars. He is essentially asking the Board to infer racism and prejudice based on a series of unconnected events and characterize valid management action as discriminatory based on the complainant's feelings of general unfairness about how his employment came to an end at TSDC.

18Finally, submits the employer, when the Board found the final scores from the 2017 job competition and the name and race of the successful candidates to be arguably relevant to the matters raised in the complaint and directed the employer to produce this information to the complainant, the Board declined to order the employer to produce the scoring sheets, worksheets and any additional notes that were used to arrive at Mr. Paul’s score. To the extent that the complainant wishes to rely on the 2017 job competition for the permanent Staff Sergeant positions as the foundation for an entitlement to a permanent Staff Sergeant position at TSDC, the employer argues, the Board has already ruled that the merits of the competition are not relevant and not within the scope of the complaint.

19Mr. Paul replies that he has established a prima facie case of a breach of a working condition or terms of his employment as well a prima facie case of racial discrimination. He relies on the results of the 2017 competition: he was the candidate with the highest score, but he was not awarded a permanent position. He asserts that this is sufficient evidence that he was treated in a discriminatory manner and in bad faith and that this treatment requires an explanation from the employer.

20He had already experienced differential treatment and there is evidence that the employer acted in bad faith towards him before he was directed to return to his “home” position at TEDC. Senior management did not support him in his role and his concerns about bullying and harassment by peers and subordinates were ignored. His peers and co-workers, the vast majority of whom are not racialized, did not receive the same treatment when they raised concerns.

21In his written submissions in response to the employer's motion, Mr. Paul clarified that he does not have an issue about the Deputy of Operations contract ending. He understands that the employer is well within its rights to end contracts and return employees to their "home "positions. However, while he was directed to return to his “home” position as a Sergeant, several of his peers and co-workers, who are not racialized, were not directed to do so.

22In any event, argues the complainant, the employer has now confirmed that he had the highest score in the 2017 competition. The employer selected successful candidates that scored significantly lower than he did and offered them permanent Staff Sergeant positions. The lowest-scoring successful candidate, who received a score of 52%, is described as white. This amounts to a prima facie case of a breach of his working conditions or terms of his employment as well a prima facie case of racial discrimination, argues Mr. Paul.

Analysis and Findings

23The first issue to be decided is whether the complaint discloses a prima facie case of a breach of the complainant’s working conditions or a term of his employment and/or a prima facie case of discrimination under the Ontario Human Rights Code. The Board has commented on the appropriate level of analysis to be made at this stage in the proceedings. In Lee et al. v. Ontario (MCSCS) 2011 CanLII 49517 (ON PSGB) the Board said the following at paragraph 32 of its decision:

As for the portion of the motion relating to whether a prima facie case has been described by the Operational Managers, it is convenient to discuss the matter by looking at what terms and conditions of employment the complainants identify, what breach they allege, and what remedies they request. If the combination of those three elements makes up a viable complaint, the matter should not be dismissed at this stage. On a preliminary motion such as this, the issue is not whether the complainants will surely succeed, but whether they have an arguable case. The difficulty of the issues raised or the strength of the employer's proposed defense are not the criteria. Rather, the standard set by the Supreme Court of Canada in Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, for dismissing a matter on a preliminary motion such as this is whether it is plain and obvious that the complaint cannot succeed or raises no reasonable or arguable case for a remedy. The novelty of a complaint or the difficulty of the issues involved was held not to be sufficient reason to dismiss on a preliminary basis.

24The employer submits that Mr. Paul has not identified any policy, legislation, or term or condition of his employment that would require the employer to keep him as permanent staff at TSDC or that prevents the employer from returning him to his home position at TEDC. However, this is not the essence of Mr. Paul’s complaint, which is that he has been unfairly denied developmental, promotional, and other work-related opportunities by the employer for discriminatory and improper reasons. His complaint also alleges that he has been the target of workplace bullying and harassment, that the employer has failed to address his concerns about this, and that the employer has otherwise acted in bad faith towards him.

25The employer is expected to exercise its managerial discretion and decision-making powers in a manner that is not arbitrary, discriminatory, or in bad faith. This expectation forms part of Mr. Paul’s working conditions or terms and conditions of employment. With respect to the 2017 job competition for the permanent Staff Sergeant positions at TSDC, Mr. Paul was entitled to expect that the employer would exercise its discretion properly and that its selection of the successful candidates would be free from the taint of arbitrariness, discrimination, and bad faith.

26The 2017 job competition was for three permanent Staff Sergeant positions, and Mr. Paul, the candidate with the highest score, was not offered one of them. Two of the three successful candidates for the permanent Staff Sergeant positions received scores of 62% and 72% and are described only as "racialized." The third successful candidate, who is described as "white, " received 52%. These facts are sufficient to raise an arguable case of a breach by the employer of Mr. Paul’s working conditions or terms and conditions of employment. Specifically, these allegations raise a prima facie case that the employer did not properly exercise its discretion, and that its selection of the successful candidates was tainted by arbitrariness, discrimination, and bad faith.

27Turning briefly to Mr. Paul’s allegations of bullying and harassment and lack of support from management, he does not refer specifically or in detail to the employer’s obligations under its own Workplace Discrimination and Harassment Policy or its statutory obligations under the Occupational Health and Safety Act. Nevertheless, the employer is required to ensure that the workplace is free from discrimination and harassment, and to fairly address these types of concerns as they arise. This expectation forms part of Mr. Paul’s working conditions or terms and conditions of employment, and Mr. Paul says that when he was being bullied and harassed by peers and subordinates in the workplace and he reported these incidents to senior management, he was ignored and no action was taken. It is clear in this part of the complaint that Mr. Paul is alleging a breach of this working condition or term and condition of his employment.

28In his complaint Mr. Paul also says that senior management did not support him in dealing with a subordinate who would not follow his direction and was told, without explanation, that he could not issue a letter of counsel despite having the grounds to do so. He also alleges that a senior manager improperly and groundlessly accused him of wrongdoing, the confidentiality of workplace mediations in which he participated was breached, and baseless comments were made about his posture during management meetings.

29Although I am somewhat concerned about the lack of specifics in some of these allegations, this is a matter that can be addressed by further particulars. At this stage in the proceedings, a lack of detail is not fatal, because the test is whether the complaint raises an arguable case. In essence, Mr. Paul’s complaint is that the employer failed to support him, undermined him, inhibited his ability as a manager to carry out his duties and responsibilities, and ignored him when he came forward with concerns that he was being treated improperly by his co-workers. Mr. Paul, has pleaded facts in his complaint that are sufficient to raise an arguable case of a breach by the employer of working conditions or terms and conditions of employment.

30As a result, the complainant has established a prima facie case that the employer's decision not to offer him one of the three permanent Staff Sergeant positions after the 2017 competition was a breach of his working conditions or terms and conditions of employment because it was improper, arbitrary, discriminatory and in bad faith. He has also established a prima facie case concerning the allegations that the employer directed him to return to his home position at TEDC in May 2019, and that the employer failed to support him, undermined him, inhibited his ability as a manager to carry out his duties and responsibilities, and ignored him when he came forward with concerns that he was being treated improperly by his co-workers.

31The next issue is whether the complaint discloses a prima facie case of discrimination under the Ontario Human Rights Code. As the Board has said recently in Bowmaster et al. v. Ontario (Solicitor General), 2020 CanLII 105698 (ON PSGB), the Board is able to hear and decide complaints that meet this test. At paragraph 35, the Board said as follows:

Distinct from the scope of the Board's jurisdiction under the Regulation to assess the discretionary decision-making of the Employer, the Employer acknowledges that it must conduct itself in accordance with the legislative and quasi-constitutional terms of the Code and that the Board does have the jurisdiction to entertain and determine that narrower statutory allegation.

Similarly, in the instant matter, the employer has asserted that the only way the Board has jurisdiction to hear the complaint on the merits is if the complainant can establish a prima facie case of discrimination.

32In Peel Law Association v. Pieters 2013 ONCA 396, the Ontario Court of Appeal set out the three elements that are required to establish a prima facie case of a violation of the Ontario Human Rights Code:

1. That he or she is a member of a group protected by the Code;

2. That he or she was subjected to adverse treatment; and

3. That his or her gender, race, colour or ancestry was a factor in the alleged adverse treatment.

[paragraph 56]

33A prima facie case test involves assessing the evidence that, assuming it is true or could be proven, would establish the claim of discrimination. A prima facie case of discrimination sets out facts that cover the allegations made and which would justify a finding of discrimination in the absence of a satisfactory answer from the respondent. The overall burden of proof remains on the complainant. However, a respondent facing a prima facie case now bears an evidenciary burden and must call evidence to provide an explanation and avoid an adverse finding. The Court of Appeal in Pieters put it this way starting at paragraph 73 of its decision:

In discrimination cases as in medical malpractice cases, the law, while maintaining the burden of proof on the applicant, provides respondents with good reason to call evidence. Relatively "little affirmative evidence" is required before the inference of discrimination is permitted. And the standard of proof requires only that the inference be more probable than not. Once there is evidence to support a prima facie case, the respondent faces the tactical choice: explain or risk losing.

If the respondent does call evidence providing an explanation, the burden of proof remains on the applicant to establish that the respondent's evidence is false or a pretext.

34In this case, the complaint's essence is that Mr. Paul experienced discriminatory and improper treatment in the outcome of the 2017 job competition for three permanent Staff Sergeant positions at the TSDC. He also alleges that he experienced discriminatory and improper treatment in his employment after the competition, up to and including May 2019.

35When he filed his complaint, Mr. Paul made two assertions: he was not offered one of the permanent Staff Sergeant positions following the 2017 competition, and he had received the highest score in the competition. The employer disputes neither of these assertions. For this preliminary motion only, the employer also accepts that Mr. Paul is covered by the enumerated ground of race, is a visible minority, and is entitled to be protected from discrimination based on ethnicity and place of origin. The competition was for three permanent Staff Sergeant positions, and Mr. Paul, the candidate with the highest score, was not offered one of them, and Mr. Paul is covered by several of the Code's enumerated grounds. There may be a credible and rational explanation for why Mr. Paul was not offered one of these positions, but at this stage, based on this information, and in the absence of an explanation from the employer, an inference of discriminatory treatment can be drawn.

36More recently, the employer has disclosed that two of the three successful candidates for the permanent Staff Sergeant positions received scores of 62% and 72% and are described as "racialized." The third successful candidate, who is described as "white, " received 52%. This additional information casts the outcome of the competition in sharp relief: not only did the candidate with the highest score, who happens to be racialized, not receive one of the three permanent positions, the candidate with the lowest score, who happens to be white, did receive one. In the absence of an explanation from the employer, this would tend to further support an inference of discriminatory treatment by the employer.

37Moreover, at this stage of the proceedings, without knowing more about what the employer means by “racialized” it is not appropriate to assume that the employer treated all “racialized” groups the same. In other words, it cannot be assumed that because some “racialized” candidates in the competition were given permanent Staff Sergeant positions, a candidate from another race or is of a different ethnicity and place of origin did not receive adverse treatment.

38As a result, taken together, these facts, assuming they are true or could be proven, meet the standard for a prima facie case of discrimination.

39There are two other aspects to the complaint: the employer’s alleged undermining of the complainant’s authority and lack of response to his allegations of bullying and harassment, and the decision in May 2019 to return the complainant to his "home position" at TEDC as a Sergeant. In his submissions in response to the employer's motion, the complainant said the following:

To be clear, the complainant does not have an issue with the fact that the Deputy of Operations contract was ended. The complain[ant] understands that the employer is well within its rights to end contracts and return employees to their "home "positions.

With this statement, Mr. Paul may have conceded that he was returned to his home position because his contract for the acting position as Deputy Superintendent of Operations at TSDC came to an end and that this was not improper. However, it may be that if Mr. Paul had been awarded one of the permanent Staff Sergeant positions following the 2017 competition, he would not have been "returned" to his home position at TEDC. In other words, the decision to return Mr. Paul to his home position may not have been improper per se, but it would not have happened if the outcome of the 2017 competition had been different for Mr. Paul.

40In any event, having carefully reviewed the allegations in the complaint and the complainant's submissions in response to the employer's motion, I find that in the broader context of the facts set out in the complaint, an inference of discriminatory treatment could be drawn from the allegations regarding the employer's alleged lack of response and its May 2019 decision to return Mr. Paul to his "home" position at TEDC. A failure to provide a harassment-free workplace can result in adverse treatment. The complaint alleges that Mr. Paul was the "only person" who was asked to return to their home position at that time and that he viewed the decision as a "demotion" and that it "stunted his career growth." In other words, he alleges that he experienced adverse treatment and was treated differently than others, and an inference could be drawn that the decision was made for reasons of his race, colour, or ancestry.

41I am satisfied that the complainant has established a prima facie case that the employer's decision not to offer him one of the three permanent Staff Sergeant positions after the 2017 competition was discriminatory and contrary to the Ontario Human Rights Code. He has also established a prima facie case of discrimination concerning the allegations that the employer failed to support him, undermined him, inhibited his ability as a manager to carry out his duties and responsibilities, and ignored him when he came forward with concerns that he was being treated improperly by his co-workers.

Timeliness

Parties’ Submissions

42The employer submits that Mr. Paul knew at the time of the 2017 competition that the competition was for permanent full-time Staff Sergeant positions at TSDC and that he was not successful in obtaining one. He also accepted a 12-month temporary assignment as a Staff Sergeant. He did not file a complaint regarding the competition until 2019, even though he knew in 2017 that he had been unsuccessful in the competition.

43The employer does not dispute that Mr. Paul received the highest score in the 2017 job competition, nor does the employer dispute that Mr. Paul heard this for the first time in May 2019. However, the employer disagrees that receiving the highest score means that he "won" the competition or was "the top candidate." These are conclusions that are not supported by the particulars in the complaint, argues the employer. If the complainant is alleging that he "won" the competition and that he should have been awarded one of the permanent Staff Sergeant positions, he should have raised this allegation in a timely manner, immediately after he was told that he was not successful in obtaining one of the permanent positions.

44The employer also argues that the complainant is precluded in equity from relying on the 2017 competition under the doctrine of laches or excessive delay. Mr. Paul was aware of the competition's outcome, and he accepted a temporary assignment as a Staff Sergeant, which shows that he accepted, or acquiesced to, the result. The employer has suffered a detriment because it is now prejudiced in its ability to defend against a complaint about a competition that took place over three years ago.

45Mr. Paul says in his complaint that he "was made aware that he won the [2017] competition on May 11, 2019." He filed his initial grievance (the notice of proposal) on May 14, 2019. In his submissions in response to the employer's motion to dismiss his complaint, he provides some additional information about the circumstances, leading to him filing the notice on May 14, 2019. Specifically, he says, soon after he was told that he would be returning to his home position at TEDC, he mentioned this to a colleague who was on the hiring panel for the 2017 competition for the permanent Staff Sergeant positions. The colleague told Mr. Paul that he had "won" the 2017 competition. Mr. Paul adds that until that time (i.e. since the time of the competition in May 2017), he had been told only that the successful candidates had outperformed him in the competition. He says that he filed his notice of proposal soon after becoming aware that he had won the competition, which was not until May 2019.

Analysis and Findings

46The issue to be decided is when the complainant became "aware of the working condition or term of employment giving rise to the complaint" because once that is said to have happened, the notice of proposal to file a complaint must be filed within 14 days. If the notice is filed outside of that time limit, the Board is without jurisdiction to deal with the complaint (Form 1), which was filed later.

47The Board only has the powers granted by the Public Service of Ontario Act (PSOA) and the regulations made under that legislation, notably Regulation 378/07 (also referred to as the "Regulation"). The Regulation sets out a particular set of time limits or "windows" of time in which steps must be taken to file complaints about discipline or terms and conditions of employment. For complaints concerning a working condition or a term of employment, notice of a proposal to file a complaint (from now on referred to as a "notice of proposal" or simply a "notice") must be given to the deputy minister within 14 days after the complainant becomes aware of the working condition or a term of employment giving rise to the complaint. The Board has repeatedly stated that the time limits in the Regulation relate directly to its jurisdiction to hear a complaint.

48In Tremblay et al. v. Ontario (Ministry of Natural Resources and Forestry) 2020 CanLII 20407 (ON PSGB), the Board reviewed the line of decisions that deals specifically with the time limits for sending the notice of proposal to file a complaint, including St. Amant v. Ontario (Ministry of Community Safety and Correctional Services), 2013 CanLII 4673 (ON PSGB) and Hasted/Berezowsky v. Ontario (Ministry of Community Safety and Correctional Services), 2016 CanLII 7473 (ON PSGB). In determining when these complainants became aware of the working condition or term of employment giving rise to their complaints, the Board looked to when the complainants had all the necessary facts to ground their complaint. The Board has also described this as determining when the subject matter of a complaint "crystallizes" or "comes to a head." Viewed slightly differently, if the Board can identify the point after which there was no material change to the working condition or term of employment giving rise to the complaint, it is likely that this will "start the clock" on the 14-day time limit for filing a notice of proposal.

49In this case, it is important that Mr. Paul alleges that when he was told in May 2019 that he would be returned to his home position at the TEDC, this development was the culmination of a pattern of arbitrary, discriminatory, and bad faith treatment that he had received from the employer at the TSDC. As set out above, Mr. Paul says that senior management did not support him in dealing with a subordinate who would not follow his direction and was told, without explanation, that he could not issue a letter of counsel despite having the grounds to do so. He also alleges that a senior manager improperly and groundlessly accused him of wrongdoing, and breached the confidentiality of workplace mediations that he participated in. Baseless comments were made about his posture during management meetings. Mr. Paul adds that he was been bullied and harassed by peers and subordinates in the workplace and that when he reported these incidents to senior management, he was ignored and no action was taken. Finally, he alleges that the employer improperly directed him to return to his home position in May 2019, and very soon after that, he was told that he had the highest score in the 2017 competition.

50Mr. Paul's main complaint is of unfair, arbitrary and bad-faith treatment, as well as discrimination under the Ontario Human Rights Code, in the outcome of the 2017 competition for the permanent Staff Sergeant positions. Unlike a typical complaint about a job competition, the allegation is not simply that Mr. Paul was not one of the successful candidates. Rather, on the unique facts of this case, the basis for his complaint is that he did not get one of the permanent Staff Sergeant positions although he had received the highest score in the competition.

51There are two parts to this allegation: he was not offered one of the positions, and he received the highest score. In 2017, he knew only that he had not been offered one of the positions. He had no reason at that time to presume that the employer might have acted in a way that was arbitrary, discriminatory, or in bad faith, or contrary to the Code. According to the complaint, from Mr. Paul's perspective, this new information cast the outcome of the 2017 competition in a completely different light. At this stage in the proceedings, it is sufficient to note that a finding of discriminatory conduct is often made based on a pattern of behaviour.

52This is not a situation where a complainant had all of the information necessary to file a complaint but simply chose not to. Nor is it a situation where the matter "crystallized" or "came to a head," followed by a period where nothing changed, and then a complaint was filed. Mr. Paul did not become “aware of the working condition or term of employment giving rise to the complaint” until May 2019, when he was told that he had received the highest score in the 2017 competition for the permanent Staff Sergeant positions. In the circumstances here and in light of the allegation of discriminatory conduct, I am persuaded that the time for filing the notice of proposal was properly following receipt of the May 2019 information. As such, I find that the complaint is timely.

53I turn briefly to the employer’s point about the relevance of the “merits” of the competition. In this case, the merits of the competition, on their own, may not be an appropriate basis to grant a remedy. Nevertheless, if a pattern of discrimination is found, the timeliness finding might allow a variety of remedies, including placement, should other factors and findings warrant this to be appropriate. At this stage of the proceedings, however, it is important to wait until the issue of liability is determined, after which full submissions from the parties would be heard as to the appropriate remedy or remedies, if any.

54I turn briefly to the employer's argument that the complaint should be dismissed for excessive or unreasonable delay under the equitable principle of laches. As with all equitable principles, it is based in fairness. It has been described as a "defensive shield," which prevents an otherwise valid claim from going forward because it would be unfair if it were allowed to proceed.

55The mere passage of time since the aftermath of the 2017 competition and the retirement of one witness (which does not necessarily mean that the witness is unavailable) is not sufficient in the circumstances to prevent the complaint from being heard. The reason for the two-year delay between the outcome of the competition and the filing of the notice of proposal has been accounted for above and need not be revisited here. There is no evidence of actual prejudice to the employer. The complaint (Form 1) was filed with the Board in July 2019. Since then, the passage of time is attributable to the usual procedural delays and is not the fault of either party. This is not a case where there has been an extreme delay and would be inherently unfair to the employer if the matter were to proceed. Whatever difficulties that arise concerning the availability of witnesses or other evidence can be addressed during the hearing.

Disposition

56To summarize, having carefully considered the evidence and the submissions of the parties, I find that the complaint discloses a prima facie case that the employer has breached a term or condition of the complainant's employment as well as a as a prima facie case of discrimination under the Ontario Human Rights Code. I also find that the complaint is timely.

57The employer’s preliminary objections are dismissed, and the matter will be addressed by the Board on the merits.

58I remain seized.