PSGB# 2020-1746

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Maiwand

Complainant

• and –

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

Employer

BEFORE

Thomas Kuttner, Q.C.

Vice Chair

FOR THE COMPLAINANT

Ajmal Maiwand

FOR THE EMPLOYER

Erika Montisano Treasury Board Secretariat Legal Services Branch Counsel

HEARING

Written Submissions received on May 14, 21 & May 28, 2021

Decision

Introduction

1This is a complaint filed on September 14, 2020 pursuant to subsection 4(1) of O Reg 378/07 (“the Regulation”) under the Public Service of Ontario Act, 2006, SO 2006 c. 35, Sch A (“the Act”). In it, the Complainant, Ajmal Maiwand, Acting Deputy Superintendent, Operations at the Toronto East Detention Centre (“TEDC”) alleges that the Employer failed to appoint him to the full-time position of Deputy Superintendent, Operations at the Toronto South Detention Centre (“TSDC”) despite verbal assurances that it would do so following his successful performance on a job competition for that position. By way of relief the Complainant seeks appointment to the full-time position of Deputy Superintendent, Operations at either the TSDC or the TEDC at the top level remuneration rate, monetary compensation for undue hardship, vacation days, legal fees, and freedom from reprisal or discipline.

2The parties met in a mediation session held before me on April 8, 2021 but were unable to resolve this dispute. At that time, the Employer indicated that it required further particulars of the Complaint, and as well that it had preliminary objections to the Board taking jurisdiction and entertaining this matter on the merits. By way of case management, I advised the parties that I would determine the preliminary objections on the basis of written submissions, directed the Complainant to file particulars as to the verbal assurances made to him, and further directed that both parties file written submissions on the preliminary objections according to an agreed schedule: the Employer to file its preliminary objections on May 14, 2021; Mr. Maiwand his reply on May 21, 2021; and the Employer its sur-reply on May 28, 2021.

3Accordingly, my findings of fact in this decision are based on the written materials filed with the Board in this matter: the Form 1 Complaint; the Form 2 Response; the particulars filed by Mr. Maiwand on April 22, 2021; and the submissions of both parties on the preliminary objections of the Employer. This decision deals solely with the preliminary objections made by the Employer to the Board’s jurisdiction to entertain this matter on the merits. Where, as here the Employer pleads that the Complainant has not made out a prima facie case for the relief sought, Rule 11 of the Board Rules provides that the facts stipulated in the Complaint are assumed to be true.

Background

4On March 28, 2018 the Complainant competed for a position as permanent Deputy Superintendent, Operations at the TSDC. The Competition itself opened on December 4, 2017 and closed on December 18, 2017. By Memorandum to all staff dated July 13, 2018, the Superintendent TSDC announced the three successful candidates for the position of Deputy Superintendent, Operations, one of whom was Mr. Maiwand. The two other candidates assumed their new roles effective immediately, and Mr. Maiwand asserts that he was assured orally that he would assume the same permanent role once a third position of Deputy Superintendent was established at TSDC. In the interim he was offered, and accepted a temporary assignment as Deputy Superintendent, Operations at TSDC effective July 23, 2018.

5In March, 2020, Mr. Maiwand was seconded to the position of acting Deputy Superintendent, Operations at the TEDC. In June 2020, the Employer posted another Competition for two permanent positions for the role of Deputy Superintendent, Operations, and two permanent positions for the role of Deputy Superintendent, Administration at the TSDC. Mr. Maiwand entered the 2020 Competition, expressing an interest in the Deputy Superintendent, Administration position, but was unsuccessful in obtaining it.

6The position of Mr. Maiwand is that one of the two positions for Deputy Superintendent, Operations was the permanent position which had been orally offered to him in July 2018. The Employer should have “reached back” to the 2017 Competition in which he was named one of three successful candidates, and awarded to him one of the positions for Deputy Superintendent, Operations in the 2020 Competition. He asserts that the Employer frequently utilizes the “reach back” mechanism to fill current position vacancies, provided the previous Competition was held within twenty-four months of the awarding of the current position.

7Included in his particulars, Mr. Maiwand also asserts that the failure to appoint him to a permanent position as Deputy Superintendent, Operations at the TSDC was “discriminatory, unfair and inequitable”. His experience, qualifications, merits, results and scores of competition are ignored and undermined deliberately because he is a Muslim and of Middle Eastern descent.

Submissions

THE EMPLOYER

The Prima Facie Test

8For the Employer, Ms. Montisano submits that, in the circumstances, there has been no prima facie breach of a working term or condition of employment. As a result the Board does not have jurisdiction to consider the merits of the complaint and it must be dismissed pursuant to Rule 11 of the Board’s Rules. For a prima facie case, the Complainant must establish:

a) An existing term or condition of employment;

b) That the Employer has breached that term or condition of employment; and

c) A connection between the breach and the remedy requested, or at the very least, some remedy within the Board’s jurisdiction.

9The Complainant has failed to establish a term or condition of employment. The Board has consistently held that for a Complaint under subsection 4(1) of the Regulation to succeed, it must point to a term or condition of employment, and that a failure to do so may result in dismissal of the Complaint. Absent a term or condition of employment, the Board is without authority to set new terms of employment or to give opinions as to whether they are fair. In order to succeed a Complainant must show that the conduct and reason of the Employer is improper either because it offends a specific term or condition of employment, or some more general principle of law. Such could be discrimination on an illegal ground such as race, gender, ethnicity or religion, or arbitrariness or bad faith on the part of the Employer.

10Here, the Complainant provided no facts or evidence to support his conclusion that he had been offered and had accepted a permanent position at TSDC, or that the Employer was obligated to reach back into the results of the 2017 job competition and award him a permanent position outside of the job competition process when one became available in 2020. The Complainant is seeking to add a term to his employment that he is entitled to a permanent position because he placed relatively well in a previous job competition, or because he perceives to have been offered one. The Board has no jurisdiction to grant the kind of remedy sought which is expressly precluded by the Act. The Employer’s decisions are not precluded by law or policy, nor was the decision arbitrary or in bad faith.

11As to the second criterion of the no prima facie test, the Complainant has not established that the Employer breached any term or condition of his employment or any statute, regulation or policy. The rules regarding any waiver of a job competition are outlined in the Employer’s Employment Policy at article 8.40.

12These provide for a waiver of competition in certain circumstances, including when a qualified candidate has been identified from a competition completed within 24 months for a position with substantially similar requirements and selection criteria, Here, the 2020 Job Competition opened on June 26, 2020. The two successful candidates from the 2017 Job Competition commenced their permanent positions effective June 25, 2018. The conditions of Article 8.40 (e) have not been met for the Employer to waive the 2020 Job Competition and place the Complainant into one of the vacancies, as the 2017 Job competition was not completed within the previous 24 months. In any event, the Employer retains a discretion to choose whether to reach back into the results of a previous job competition or hold a new one.

13The Employer’s position is that the Complaint fails on the first and second part of the prima facie test. Specifically, the Complainant has not identified a term or condition of his employment that entitles him to a permanent position or a particular vacancy, nor has he identified any breach by the Employer of an existing term or condition of his employment. This is so even accepting all the facts asserted by the Complainant to be true. The Complaint cannot succeed.

14As to the third criterion of the no prima facie test, the Complainant has not identified in policy or in law that the Employer breached his terms or conditions of employment. There is no remedy for the Complainant’s discontent found in the regulatory language of the Act. Accordingly, the Board is without jurisdiction to hear the Complaint on the merits, and it must be dismissed at the prima facie stage.

Discrimination

15Nor can the Complainant establish a prima facie case of discrimination on the basis of ethnic origin and creed. To meet the prima facie test for discrimination, the Complainant must demonstrate:

a) That he is covered by an enumerated ground;

b) That he was subjected to adverse treatment; and

c) That his ethnic origin and creed were factors in the alleged adverse treatment.

16The Employer acknowledges that the Complainant is covered by the enumerated grounds of ethnic origin and creed, being a Muslim of Middle Eastern descent. However, the Complainant was not subjected to adverse treatment by the Employer. The Complainant’s allegations that he was treated in a discriminatory, unfair and inequitable fashion by not being awarded a full-time permanent position, are completely incapable of proof. Rather the Complainant’s pleadings disclose that the Employer attempted to present a business case and inquire with senior management about potential vacancies so as to be able to offer him a permanent position following the 2017 Job Competition. The Complainant is not entitled to a position of any kind at TDSC as a term or condition of his employment and the Board has no jurisdiction to find that he does have such an entitlement. The Complainant’s claim of discrimination should fail at this part of the test because he has not established adverse treatment.

17In any event, the Complaint must fail on the third criteria: that his ethnic origin and creed were factors in the alleged adverse treatment. There was no nexus between the Complainant’s ethnic origin and creed and the Employer’s actions and decisions regarding the 2017 Job Competition or that of 2020. The fact that the Complainant was not successful in securing a permanent position at TSDC in either Competition is not proof of discrimination on the basis of ethnic origin or creed. There must be more than the Complainant’s subjective belief or opinion to establish a prima facie case of discrimination. Beyond making broad assertions that he believes that the Employer discriminated against him on the basis of the prohibited grounds of ethnic origin and creed, he alleges no facts to support this conclusion.

Timeliness

18Moreover, the Complainant’s allegations are untimely as the provisions of Regulation subsection 8(4).3 mandate that a Complaint about a working condition or term of employment must be made within 14 days after the Complainant becomes aware of the working condition or term of employment giving rise to the Complaint. The Complainant was aware as of March 2018, or at the latest as of July 23, 2018 when he was awarded a temporary assignment, that he had not been awarded a permanent position at TSDC as a result of the 2017 Job Competition. He did not give notice of a Complaint regarding what he perceived to be a verbal offer of a full-time permanent position of Deputy Superintendent, Operations at TSDC until July 16, 2020, approximately two years following completion of the 2017 Job Competition.

19Furthermore, the Complainant is precluded in equity from relying on the 2017 Job Competition as the basis for his Complaint pursuant to the doctrine of laches. A legal right or claim will not be enforced or allowed if a long delay in asserting the right or claim has prejudiced the other party. The doctrine of laches requires i.) acquiescence on the part of the party charged with the delay; and ii) a detriment to the responding party.

20As to acquiescence, the Complainant accepted a temporary assignment at TSDC which he held until March 2020 and did not file a Complaint with the Board until he became aware that the Employer had decided to hold a Job Competition in June 2020. In terms of detriment, the Employer is prejudiced in its ability to respond to a Complaint about a Competition from two years ago that was not challenged at the time. Many of the individuals whom the Complainant alleges told him he was successful in the Competition no longer work at the Institution. Even if witnesses are available, their memories will have faded, which creates a prejudicial effect. The Complaint is untimely and is precluded by the Act and in the alternative, equity.

21Counsel referred to the following jurisprudence in support: James Allen v Ontario (Community Safety and Correctional Services) P-2007-2921 (O’Neil); Hugh MacDonald v Ontario (Community Safety and Services), 2014 CanLII 76836 (ON PSGB) (O’Neil); Laird v Ontario (Community Safety and Correctional Services), 2009 CanLII 76836 ON PSGB) (Leighton); Ransome v Ontario (Health and Long-Term Care), 2006 CanLII 42782 (ON PSGB) (O’Neil); Mark Woodward v Ontario (Community and Social Services), 2006 CanLII 91921 (ON PSGB) (O’Neil); Beauchamp v Ontario (Solicitor General), 2020 CanLII 97315 (ON PSGB) (Nairn); James Taylor v Ontario (Community Safety and Correctional Services), 2015 CanLII 68786 (ON PSGB) (Devins); Peel Law Association v Pieters, 2013 ONCA 396; OPSEU (Poblete) v Ontario (Government and Consumer Services), GSB No. 2017-0709 (Herlich); Mitchell v Kerry Place Autism Services, 2012 HRTO 834; Taylor v Ontario (Community Safety and Correctional Services), 2017 CanLII 65620 (ON PSGB) (Devins); Hasted/Berezowski v Ontario (Community Safety and Correctional Services) 2016 CanLII 7473 (ON PSGB) (Nairn); OPSEU (O’Brien) v Ontario (Community Safety and Correctional Services) GSB No. 2003-1881 (Leighton); Laforest v Ontario (Solicitor General), 2020 CanLII 10543 (ON PSGB) (Morgan).

THE COMPLAINANT

The Prima Facie Test

22The Complainant submits that on December 18, 2017, he applied for the permanent position of Deputy Superintendent, Operations at TSDC and on March 28, 2018 he competed in the Job Competition for that position. He was informed by TEDC Deputy Superintendent, Administration, Winston Wong, that he had been successful in the 2017 Job Competition and that TSDC was offering him a fulltime position. At the suggestion of Mr. Wong, the Complainant contacted the Deputy Superintendent, Administration at TSDC, Vicki Robertson, the hiring manager, who made a verbal offer to him for the permanent fulltime position of Deputy Superintendent, Operations at the TSDC. He accepted that verbal offer.

23The Superintendent of TSDC, Mike Wasylyk, informed all staff by Memorandum dated July 3, 2018, that the Complainant was among three successful candidates in the 2017 Job Competition and that he would be joining TSDC on July 23, 2018. Deputy Superintendent, Administration, Vicki Robertson informed the Complainant that the fulltime position he was offered had not been vacated as of yet, as the person holding the position had not yet retired. The Complainant was informed to sign a temporary contract for the position of Deputy Superintendent, Operations at TSDC until such time as the fulltime position was vacated, at which time he would be slotted into the fulltime permanent position.

24The Complainant had numerous conversations with Ms. Robertson regarding his status and she assured him that he would be placed into the fulltime permanent position of Deputy Superintendent, Operations at TSDC. She told the Complainant that a business case was submitted and in progress. In addition, the Complainant referenced e-mail correspondence between the Executive Assistant to the Superintendent, TSDC, Patricia Giammarresi and Trevone Scott-Thompson of the Talent Acquisition Branch indicating that once clearance was provided they could issue full hiring documents for the Complainant.

25During that time the Administration of TSDC changed and Superintendent Wasylyk was replaced by Ms. Donata Calitri-Bellus who also informed the Complainant that a business case for the fulltime position of Deputy Superintendent, Operations had been made and that she was continuing to pursue the matter. Superintendent Calitri-Bellus inquired of the Complainant whether he had anything in writing regarding the job offer that had been made to him. She further advised that if he had anything in writing that would substantiate his claim she would continue to work on his case. In March 2020, the Complainant accepted a secondment as acting Deputy Superintendent, Operations at TEDC. He was advised by the HR advisor, Chad Derrah that this would not affect his fulltime status if he decided to move back to TSDC.

26On June 26, 2020, the Complainant became aware of the posting of a Job Competition for two full-time positions as Deputy Superintendent, Operations at TSDC. The Complainant entered into e-mail correspondence with Ms. Calitri-Bellus in early July, at which time she advised him that the business case she had submitted for his full-time position as Deputy Superintendent, Operations, had not been approved by Executive Director, Darryl Pitfield. The 2020 Job Competition positions were not identical to the 2017 Job competition positions.

27The Complainant submitted that to fill one of the two 2020 Job Competition positions for Deputy Superintendent, Operations the Employer should have “reached back” to the 2017 Job Competition in which he was named one of the successful candidates. The practice of reaching back has become a recognized working condition or term of employment if the vacancy to be filled existed before expiry of the 24 month period stipulated for the practice. On July 16, 2020, the Complainant gave Notice of Proposal to file a Complaint to the Deputy Minister of the Ministry of the Solicitor General. The Complainant submits that he had established a prima facie case for relief.

Discrimination

28The Complainant submits that the Employer circumvented his promotion to the position of Deputy Superintendent at TSDC for racial reasons — that he is a Muslim of Middle Eastern descent. The decision taken to deprive him of the position was arbitrary, discriminatory and in bad faith. The prima facie test for discrimination has been met. The enumerated ground of race has been established and the adverse treatment was the declaration by the Employer and subsequent removal of promotion without reasons.

29The Ontario Human Rights Code is meant to eliminate discrimination in the form of disadvantage, prejudice and stereotyping on the grounds set out in the Code. Isolation, harassment and a poisoned work environment comprise a form of discrimination when based on a ground protected by the Code. The inexplicable retraction of an earned promotion is a denial of opportunity and is clear prima facie discrimination. A nexus has been made out between the Complainant’s race and the Employer’s actions and decisions.

Timeliness

30The Complainant submits that it was only in June, 2020 and his July email correspondence with Superintendent Calitrii-Bellus that he became aware that he was told that he would not be getting the position of Deputy Superintendent, Operations at TSDC despite being identified as a successful candidate following the 2017 Job Competition and his acceptance of a verbal job offer for the position. It was on that premise that he moved in July 2018 from his position at TEDC to the temporary position at TSDC.

31The Employer has investigated the Complainant and forced him into an allegation hearing on a claim that he misused his position of authority to obtain documents which prove his case. The allegation is patently false and patently intimidating of his attempts to obtain disclosure to support his claim and an attempt to thwart disclosure of the Employer’s wrongdoing in this matter. The Employer’s timeliness objection should be denied.

32In support, the Complainant referenced C.M. York Region School District School Board, 2010 HRTO 1494); and the Ontario Human Rights Commission Policy on Ableism and Discrimination Based on Disability.

Analysis

33The governing terms of the Regulation are found at subsections 4(1) & (2) as follows:

4. (1) Subject to subsection (2), a public servant who is aggrieved about a working condition or about a term of his or her employment may file a complaint about the working condition or the term of employment with the Public Service Grievance Board,

(2) The following matters cannot be the subject of a complaint about a working condition or about a term of employment:

1. The term or duration of the public servant’s appointment to employment by the Crown.

2. The assignment of the public servant to a particular class of position.

3. The evaluation of a public servant’s performance or the method of evaluating his or her performance.

At issue here is whether the Complaint of Mr. Maiwand is about “a working condition or a term of his employment” within the meaning of the Regulation. For the reasons that follow, I have concluded that it is.

The Prima Facie Case Test

34As counsel for the Employer has submitted, for a prima facie case to be established, the Complainant must establish:

a. An existing term or condition of employment;

b. That the Employer has breached that term or condition of employment; and

c. That there is a connection between the breach and the remedy requested, or at the very least, some remedy within the Board’s jurisdiction.¹

As the Board wrote in the MacDonald case:

Where there is no term or condition of employment, or overriding legal principle preventing the action complained of, the Board has no basis to find a breach or award a remedy.²

35The Board has clearly established over a number of decisions, that a mere sense of unhappiness with, and unfairness of, a decision of the Employer with respect to a condition of work or term of employment, is not sufficient to ground a Complaint under the Regulation. See for instance the Kevin Ransome case supra, where the Board wrote:

Especially in the managerial setting, where contracts of employment are not collective, but individual, it is not enough to say that it is fair or would be more fair if a grievor was paid more, or not less, than some other employee. In order to succeed, a grievance must show that the difference is improper, either because it offends a specific term or condition of employment, or some more general principle of law.³

36That said, as I wrote in the Bazger case the words “condition of work or term of employment” must be read expansively:

As the Board has noted in the Laird case supra, [Laird v Ontario (Community Safety and Correctional Services), 2009 CanLII 43638 (ON PSGB)] “Since the Kanga case, supra, [Kanga v. The Crown in Right of Ontario (Ministry of Health) (1986) CanLII 95 (ON PSGB)] the board has held consistently that these words must be given a broad and liberal interpretation.” This accords with the provisions of the Legislation Act, 2006, 2006 SO c.21 Sch F which stipulate at section 64:

64(1) ) An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.

64(2) ) Subsection (1) also applies to a regulation, in the context of the Act under which it is made and to the extent that the regulation is consistent with that Act.⁴

37Turning to the facts of this case, in ordinary circumstances, the exclusions at subsection 4(2) of the Regulation would preclude the claim made here by the Complainant. The assignment of the Complainant to a particular class of position, as well as the evaluation of his performance would ordinarily be at the discretion of the Employer. But this is not an ordinary case — it is an extraordinary one. I say that principally because of the oral commitments made by senior managerial staff to the Complainant, that his appointment to the fulltime position of Deputy Superintendent, Operations at TSDC was assured.

38The starting point of my analysis is the July 13, 2018 Memorandum sent by TSDC Superintendent Wasylyk to all staff, advising that the Complainant was one of the three “successful candidates” in the 2017 Job Competition for the position of Deputy Superintendent, Operations. Counsel for the Employer points out that the December 2017 posting for that position referenced only two such positions were open. But it is clear from Superintendent Wasylyk’s Memorandum that a decision had been made to appoint the successful candidates to three such positions. That the Complainant had performed satisfactorily in the 2017 Job Competitions cannot be gainsaid.⁵

39But there is more. The Complainant, who at the time was acting Deputy Superintendent, Operations, TEDC, was informed by Winston Wong, TEDC Deputy Superintendent , Administration, that he had been successful in the 2017 Job Competition, and that TSDC was offering him a fulltime position. This was confirmed by the TSDC Deputy Superintendent, Administration, Vicki Robertson, the hiring manager at TSDC, who made a verbal offer to the Complainant for the fulltime position of Deputy Superintendent, Operations at TSDC, which the Complainant accepted. However, when he arrived at TSDC, the Complainant assumed the position of acting Deputy Superintendent, Operations for B Tower effective July 23, 2018.

40Ms. Robertson informed the Complainant that the reason for this acting deployment was that the full-time position he had been offered was not yet “vacant” as the then current incumbent had not as yet retired, but that once he had, the Complainant would be “slotted in” to the fulltime position of Deputy Superintendent, Operations at TSDC. The Complainant had “numerous conversations” with Ms. Robertson prior to her retirement, during which she again assured him that he would be placed in the fulltime position. She told him that a business case for the position had been submitted to senior management and was in progress.

41Following the retirement of TSDC Superintendent Wasylyk, he was replaced in that position by Superintendent Donata Calitri-Bellus, who advised the Complainant that she had submitted a business case for his fulltime position and was continuing to pursue the matter. Superintendent Calitri-Bellus asked the Complainant whether he had anything “in writing” regarding the job offer for the fulltime position of Deputy Superintendent, Operations at TSDC. Superintendent Calitri-Bellus repeated this request, in writing by email dated July 7, 2021 to the Complainant as follows:

When we last spoke about the business case that I submitted, I advised you that the business case was not approved by [Executive Director] Darryl Pitfield.

Do you have any written correspondence from either Vicky Robertson or Mike Wasylyk that you can share with me? I do not have anything in the records at TSDC that indicates that the position was offered to you on a permanent basis?

I will reach out to Vicky and Mike and see if there is anything further they can provide regarding this matter.

42In the meantime, in March 2020, the Complainant had been seconded over to TEDC to take up the position of acting Deputy Superintendent, Operations there. Upon inquiry, he was assured by the TSDC departmental HR advisor, Chad Darrah that taking on the secondment at TEDC would not affect his return to a full-time position at TSDC. It was in June 2020, that the Complainant became aware of the 2020 Job Competition for four fulltime positions at TSDC: two positions of Deputy Superintendent, Administration, and two positions of Deputy Superintendent, Operations. He competed unsuccessfully for the former position. All four positions were filled by the Employer from among the competitors in the 2020 Job Competition.

43The foregoing substantiates my view that the Complainant has established “a working condition or a term of his employment” within the meaning of the Regulation. This is by reason of the equitable doctrine of estoppel. The doctrine is stated succinctly by Lord Denning, MR, as follows:

Estoppel is not a rule of evidence. It is not a cause of action. It is a principle of justice and of equity. It comes to this. When a man, by his words or conduct, has led another to believe in a particular state of affairs, he will not be allowed to go back on it when it would be unjust or inequitable for him to do so.⁶

44This is precisely what has occurred here. Senior managerial employees – in particular TSDC Deputy Superintendent Robertson— repeatedly assured the Complainant that he had been successful in the 2017 Job Competition in securing a fulltime position as Deputy Superintendent, Operations at TSDC. He waited patiently for that eventuality to come to fruition, and it was only on learning of the 2020 Job Competition in June 2020, that he became aware that the Employer had resiled on its oral assurances of his appointment to a fulltime position of Deputy Superintendent, Operations at TSDC.

45That the oral offer of appointment to a fulltime appointment as Deputy Superintendent, Operations at TSDC would be honoured by the Employer, if there was written confirmation of its having been made, is evidenced by Superintendent Calitri-Bellus’ interchanges with the Complainant. This occurred twice — first orally and then in her correspondence of July 7, 2020. These interchanges go to the evidentiary substantiation of such oral assurances having been made, not to their effect if indeed made, namely appointment by the Employer of the Complainant to the fulltime position of Deputy Superintendent, Operations at TSDC.

46The Employer is estopped from claiming that the oral assurances given to the Complainant were as if written on water. To the contrary, they meet the requirements of estoppel as articulated by Lord Denning, MR: By their words and conduct, senior administrators at TSDC led the Complainant to believe that he would be appointed to the fulltime position of Deputy Superintendent, Operations at TSDC. It would be unjust and inequitable for the Employer to go back on its assurances at this time.

47The Complainant has established that by reason of the equitable doctrine of estoppel, his claim is of an existing working condition or term of his employment. The Employer, by failing to honour its oral assurances to the Complainant, has acted in breach of that condition or term of employment. Ubi ius, ibi remedium — a right having been established, a remedy must follow, and it is within the jurisdiction of the Board to grant one. Bearing in mind that, pursuant to Rule 11 of the Board’s Rules, the facts as stipulated by the Complaint are assumed to be true, the Complainant has established a prima facie case which should be heard on the merits.

Timeliness

48Counsel for the Employer has submitted that to be timely, this Complaint should have been filed at the latest within fourteen days of his acceptance of a temporary position as acting Deputy Superintendent, Operations at TSDC on July 23, 2018. However, as I have found above, acceptance of that position on that date was premised on appointment to a fulltime position in that role once a vacancy had opened up. This remained the state of affairs until June/July 2020, when the Complainant became aware of the 2020 Job Competition.

49My view is that this is the proper timeframe to determine whether the Complainant has complied with subsection 8(4).3 and given Notice of Proposal to the Deputy Minister within fourteen days of becoming aware of the breach by the Employer of the working condition or term of employment. The Complainant gave such notice on July 16, 2020 which falls within the fourteen-day period, calculated as I have done from the email correspondence of Superintendent Calibri-Bellus of July 7, 2020. This was when the Complainant was formally advised that the business case in support of his fulltime appointment had not been approved.

50On August 27, 2020, the Complainant had a conference call with the Deputy Minister’s delegate to present his Complaint, and on September 11, 2020 he received notice that his Complaint had been denied by the Employer. The Complainant filed his Form 1 Complaint with the Board three days later, on September 14, 2020. Given the view I take as to the timeliness of the Complaint as filed, there is no need to address the Employer’s submissions on the doctrine of laches.

51Lest it be argued that the timeline set down at subsection 9 (3) in the Regulation for a dispute resolution meeting with the Deputy Minister’s Delegate (within 30 days of the giving of Notice of Proposal) has not been complied with, I draw the parties’ attention to my decision in Breslin v Ontario (Ministry of the Solicitor General), 2021 CanLII 37121.

52There, I noted that O Reg 73/20 under the Emergency Management and Civil Protection Act, RSO 1990 c. E-9 provides that:

2.Any provision of any statute, regulation, by-law or order of the Government of Ontario establishing any period of time within which any step must be taken an any proceeding in Ontario, including any intended proceeding, shall, subject to the discretion of the court, tribunal or other decision-maker responsible for the proceeding, be suspended for the duration of the emergency, and the suspension shall be retroactive to Monday, March 16, 2020.

And I wrote at paragraph 12:

12. In light of subparagraph 2 of Regulation 73/20, the hitherto mandatory time periods during which steps had to be taken in the processing of a complaint before the Board, were suspended, subject to the discretion of the Board. In exercising its discretion the Board should take into account:

• the objective of expeditious resolution of complaints from managerial employees as to terms and conditions of employment, or as here disciplinary action;

• the reasonableness of the extension of the time period implicitly sought by the complainant;

• the prejudice, if any, suffered by the Employer should such extension of time be granted.

53Here, the holding of the dispute resolution meeting took place on August 27, 2020, several days past the thirty day period from the giving of the Notice of Proposal on July 16, 2020. Here the objective of expeditious resolution of complaints has been met, and the extension of time implicitly sought by the Complainant is reasonable. The Employer has suffered no prejudice in the granting of the extension of time here sought.

Discrimination

54The Complainant has made serious allegations on the part of the Employer of discrimination contrary to the Human Rights Code, RSO 1990, c. H-19 on the basis of ethnic origin and creed. The Complainant identifies himself as a Muslim of Middle Eastern descent. His Complaint alleges that he has been subjected to adverse treatment. However, even if this is established, the Complainant has absolutely failed to establish that his ethnic origin and creed were factors in the alleged adverse treatment. The Complainant has failed to establish a prima facie case for discrimination at the hands of the Employer or any of its representatives, particularly the senior management at TSDC.

Order

55This matter is referred to the Office of the Registrar, to be set down for hearing on the merits. By way of clarification, at the hearing on the merits, the onus will be on the Complainant to establish that the Employer breached a working condition or term of his employment, and if so, to establish a remedy which lies within the jurisdiction of the Board.

Footnotes

1. 1See James Allen supra at para 12.; and Hugh MacDonald supra at para 17. Both are decisions of then Vice-Chair O’Neil.
2. 2Hugh MacDonald, supra n. 1 at para 18.
3. 3Kevin Ransome supra, at p. 7, emphasis added. Per Vice-Chair O’Neil.
4. 4Bazger v Ontario (Ministry of the Solicitor General) 2021 CanLII 37123 (ON PSGB) at para 8.
5. 5There is as well email correspondence of June 25, 2028 sent to the administrative Assistant to Superintendent Wasylyk from Trevone Scott-Thompson of the TSDC Talent Acquisition Branch indicating: “If clearance has not been issued yet, the institution could put Ajmal in the position temporarily until clearance provided and we can issue full hiring documents. Alternatively, if the client is willing to risk manage the clearance as risk of a match is low, we can post for clearance and provide you with the third hiring document for Ajmal. Please confirm.”
6. 6Moorgate Mercantile v Twitchings [1975] 3 All ER 314 at p 323. The decision was reversed on other grounds by the House of Lords at [1976] 2 All ER 641.