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

Tristan Paul

FOR THE EMPLOYER

Jordanna Lewis Treasury Board Secretariat Counsel

HEARING

January 9, 2023, July 28, 2022, June 13, 2022, March 15, 2022, February 4, 9, 11,16,25 & 28, 2022, November 24, 2021 and Written submissions completed on March 21, 2023

Decision

1This decision deals with the complaint of Tristan Paul, who 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, and that the Employer has otherwise acted in bad faith towards him. He self-identifies as a young, visible-minority male of Indo-Caribbean/South Asian descent.

2Effective March 2021, and at the time of the hearing of this complaint on the merits, S.Sgt. Paul’s home position was at the Maplehurst Correctional Complex as a Staff Sargeant. He will be referred to as S.Sgt Paul throughout this decision, even though at the times relevant to the complaint, he was either in a temporary assignment as a Staff Sergeant or a temporary assignment as a Deputy Superintendent.

3S.Sgt. Paul filed his complaint in July 2019. At that time, his "home" position was as a Sergeant at the Toronto East Detention Centre (TEDC), and he had been in that position since approximately 2015. In 2017, there was a job competition for several permanent Staff Sergeant (COM01) positions at the Toronto South Detention Centre (TSDC). S.Sgt. Paul submitted an application and was interviewed but did not get one of the permanent Staff Sergeant positions. However, he was soon offered and accepted a temporary assignment as a Staff Sergeant at the TSDC.

4In the summer of 2018, pursuant to an "Expression of Interest" posting for a temporary assignment as a Deputy Superintendent of Operations at TSDC, S.Sgt. Paul was offered and accepted that role. When that temporary assignment ended in May 2019, S.Sgt. 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 3 permanent Staff Sergeant positions, which is something he had not known until then because, at the time, he was only told that he was not one of the successful candidates. Soon after he learned that he had received the highest score, he started the process that led to filing this complaint.

5S.Sgt. Paul says he should not have been removed from the temporary assignment as Deputy Superintendent of Operations at TSDC and returned to his home position. He alleges that the Employer did so for discriminatory and improper reasons 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. S.Sgt. Paul also alleges that he experienced discriminatory and improper treatment in his employment after the competition, up to and including May 2019. He says this includes incidents when 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.

6The Employer denies the allegations, conceding that while the 2017 competition was not perfect, it was not required to meet that standard and that there is no or insufficient evidence that S.Sgt. Paul’s terms and conditions of employment were breached and no or insufficient evidence of discrimination under the Ontario Human Rights Code or any other relevant workplace legislation. He was returned to his home position in May 2019 at the end of a temporary assignment because the assignment had ended and because there was a shortage of Sergeants at TEDC and not for any discriminatory or otherwise improper reason, says the Employer.

7As to the other incidents where S.Sgt. Paul has alleged workplace bullying and harassment or other forms of improper or discriminatory treatment, the Employer concedes that while there was friction in the workplace and difficulties in some of S.Sgt. Paul’s working relationships, others were not solely to blame and S.Sgt. Paul contributed to these difficulties. The Senior Administration of TSDC provided feedback and coaching to S.Sgt Paul and used mediation and other workplace interventions to address the friction and difficulties. In any event, S.Sgt. Paul was a manager throughout his time at TSDC (either on temporary assignment as a Staff Sergeant or as a Deputy Superintendent of Operations) and could have acted on his own to better address these difficulties, including through the WDHP process or otherwise, but he did not.

Preliminary Rulings and Decision on Prima Facie Case

8In June 2020, S.Sgt. Paul 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. Paul v. Ontario (Solicitor General), 2020 CanLII 45599 (ON PSGB)

9The information confirmed that S.Sgt. Paul received the highest score in the competition (89%). All three of the successful candidates had lower scores than S.Sgt. 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%.

10The Employer then brought a preliminary motion to dismiss the complaint without a hearing. The Employer argued that the complaint was not brought forward within the Board's mandatory timelines, that the subject matter of the complaint and the remedies requested did not fall within the Board's jurisdiction, and that the complaint did not disclose a prima facie case that the Employer has breached a term or condition of the complainant's employment.

11In a decision dated March 22, 2021, the Board dismissed the Employer’s preliminary motion, finding that the complaint was timely and that S.Sgt. Paul had 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. The reasons for the Board’s decision that the complaint was timely are not relevant to this decision on the merits of the complaint, but it is helpful to review the basis for the decision that S.Sgt. Paul had made out a prima facie case. Paul v. Ontario (Solicitor General), 2021 CanLII 26625 (ON PSGB).

12As to whether S.Sgt. Paul had made out a prima facie case of a breach of a working condition or terms of his employment, the Board said this:

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.

13The Board’s ruling on whether S.Sgt. Paul had made out a prima facie case of discrimination under the Ontario Human Rights Code was similar:

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.

14The Board also ruled that given the broader context of all of the facts set out in the complaint, S.Sgt. Paul had established a prima facie case concerning the allegations that the Employer’s direction that he 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 were improper and discriminatory.

15As noted in the Board’s decision, a 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 evidential burden and must call evidence to provide an explanation and avoid an adverse finding. The Court of Appeal in Peel Law Association v. Pieters 2013 ONCA 396 put it this way, starting at paragraph 73 of its decision:

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.

16In this case, the essence of S.Sgt Paul’s complaint is that he 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, when he was directed to return to his home position at TEDC.

17Given the Board’s finding that the complaint disclosed a prima facie case of discrimination and improper treatment, the hearing was S.Sgt. Paul’s opportunity to call the evidence necessary to support the allegations in the complaint. As noted above, although the evidential burden shifted to the Employer to provide an explanation for what happened to S.Sgt Paul, the overall burden of proof in these proceedings to show that the Employer breached his terms and conditions of employment remained on the complainant, S.Sgt. Paul.

18Having carefully considered all of the evidence, I find that the Employer’s treatment of S.Sgt. Paul throughout his time at TSDC was free from any unfairness, bad faith, or discrimination. Specifically, I find that the Employer has provided a credible, non-discriminatory explanation for why S.Sgt Paul was not one of the successful candidates in the May 2017 competition for 3 permanent Staff Sergeant positions at TSDC. I also find that the reason S.Sgt. Paul was directed to return to TEDC at the end of his temporary assignment as Deputy Superintendent – Operations in May 2019 is equally free of any unfairness and bad faith, and entirely free of the taint of discrimination. As a result, there has been no breach of S.Sgt. Paul’s terms and conditions of employment.

Overview and Evidence

19S.Sgt Paul testified at the hearing. He called 4 witnesses who were his co-workers during all or part of his time at TSDC: Deputy Superintendent (DS) Scean Charles; DS Ajmal Maiwand; DS Wayne McCoy; and DS Sean Black. The Employer called 4 witnesses: DS Angela Cicak; Aisha Bryan (HR Business Coordinator); Superintendent (Supt.) Mike Wasylyk; and Supt. Tracy Timoll. [Note: the list above shows the position held by each witness at the time of the hearing with the exception of Supt. Wasylyk, who is retired.]

20My comments and findings with respect to the events described in the complaint are as follows.

May 2017 Staff Sergeant Competition

21In 2017, there was a job competition for 3 permanent Staff Sergeant (COM01) positions at the TSDC (Job ID 106292). The Employer’s website has a “Careers” section with a page titled “Our Recruitment Philosophy” and among other things, it states the following:

Hire Based on Merit

All our recruitment decisions are based on valid, practical and measurable approaches that ensure hiring on the basis of merit. This means hiring the candidate whose qualifications best meet the requirements to do the job.

Demonstrate our OPS values

Our recruitment process reflects our mission to serve the public interest and uphold the public's trust. It demonstrates our commitment to our values of trust, fairness, diversity, excellence, creativity, collaboration, efficiency and responsiveness.

22There is also a page titled “Hiring Steps” in the same section. Among other things, it sets out the following:

Step 1: Job Advertising Job opportunities available on the OPS Careers are posted for a minimum of 10 working days. In addition, some of the job opportunities may be advertised on external websites. We continue to collect applications for a job advertisement until 11:59 EST on the closing date.

Step 2: Application Screening All applications received on or before the closing date are screened and rated against the qualifications outlined in the job ad. Applicants whose resume and cover letter best demonstrate how they meet the qualifications to do the job will be invited to continue in the hiring process.

Step 3: Evaluation This is your opportunity to show us how you best meet the qualifications outlined in the job ad. This is where we evaluate the candidates invited to continue in the hiring process. There will be a number of assessments based on the qualifications in the job ad, for example presentations or a written test usually including an interview.

Step 4: Selection of Successful Candidate We assess and rate candidates based on the results from the evaluation process in Step 3 to select the best-qualified candidate to fill the position. We are looking to hire the candidate whose qualifications best meet the requirements to do the job.

23The Job Posting for the 3 Permanent Staff Sergeant positions was posted on line. There is a section titled “What can I expect to do in this role?” that sets out a very general description of the duties and responsibilities of the position. There is a section titled “How do I qualify?” that has four subsections: “Specialized Knowledge and Skills,” Leadership and Supervisory Skills,” Communication and Relationship Management Skills,” and Analytical and Investigative Skills.” Each subsection has a series of bullet points; the first two subsections are the most relevant to this complaint. In part, this document states as follows:

Specialized Knowledge and Skills

• you have knowledge of correctional institution management and administration including program delivery and evaluation

• you have knowledge of the diverse and complex programs, systems and services (i.e. security system enhancements, modernized health care services, direct/indirect supervision model, fulsome program delivery system)

Leadership and Supervisory Skills

• you can develop related standards for management of daily activities by Sergeants

• you can provide leadership and guidance to Sergeants and ensure compliance to correctional control standards, policies, legislation and procedures

• you can direct, motivate and coach a team of Sergeants, manage a broad range of often complex employee relations matters and ensure fiscal responsibility of staff and equipment

24There was no mention in the Job Posting that previous experience as a Staff Sergeant was required or preferred. There was no mention that a certain number of years of experience as a Sergeant was required or preferred.

25S.Sgt. 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 12-month temporary assignment as a Staff Sergeant at the TSDC starting in September 2017.

26When he accepted the 12-month temporary assignment as a Staff Sergeant, S.Sgt. Paul was only told that he was one of the successful candidates for the 3 Permanent Staff Sergeant positions. However, sometime in May 2019, when S.Sgt. Paul was informed that he would be returned to his home position at the TEDC, he learned from DS Charles, who had been one of the panel members on the 2017 competition, that he had received the highest score.

27As noted above, in an earlier decision, 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. It 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 used to arrive at S.Sgt. Paul’s score, because the Board had already ruled that the merits of the competition were irrelevant and not within the scope of the complaint.

28The information about the scores confirmed that S.Sgt Paul had received the highest score in the competition (89%). All three of the successful candidates had lower scores than S.Sgt Paul. In this decision, the successful candidates will be referred to as A, B, and C. Candidate A scored 72%, Candidate B scored 62%, and Candidate C scored 52%.

29At the hearing, some of the witnesses gave evidence about whether it was the Employer’s practice to have a “threshold” or “benchmark” in job competitions such as the one for the 3 Permanent Staff Sergeant competition. S.Sgt Paul testified that the threshold in a competition is typically 70% and that candidates who do not meet the threshold do not “move through the process” and would not be eligible for consideration for a posted position. DS Charles and DS Maiwand generally supported this proposition based on their own experience as hiring managers. Crucially, however, DS Charles agreed in cross-examination that, based on his experience, a threshold could be lowered to increase the number of eligible candidates.

30DS Cicak, who testified on behalf of the Employer, said that at TSDC, the hiring manager or the Superintendent of the Institution determines the threshold for a job competition, that the threshold is not always the same, and that the threshold is not disclosed. Ms. Bryan, also testifying on behalf of the Employer (although it was noted that she was not working for the Employer at the time of the 2017 job competition), said that there is no standard threshold in a competition for a management position and that 70% is not typical. The threshold depends on the hiring manager’s needs, the number of applicants, and the experience and qualifications of the applicants, she testified.

31Having carefully considered the evidence, I find that while 70% may have been a guideline or starting point for a “threshold” or “benchmark” in some job competitions, there is insufficient evidence that there was a requirement for the Employer to exclude candidates who did not meet that threshold from the May 2017 job competition for the 3 permanent Staff Sergeant positions at TSDC. The evidence shows that the threshold is not always the same. It depends on many factors and is determined on a competition-by-competition basis. It can be lowered to increase the number of eligible candidates, so it stands to reason that it can be lowered during or after the competition process because the number of eligible candidates would not be known until that time. As a result, I find that in the 2017 job competition for 3 permanent Staff Sergeant (COM01) positions at the TSDC (Job ID 106292), it was not improper for the Employer to select candidates whose scores were less than 70% eventually.

32In 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." Candidates A and B are described as "racialized" and Candidate C is described as "white.”

33At the hearing, the Employer provided additional evidence about the successful candidates. Three additional columns on the sheet showing the summary of the candidates’ scores were revealed: “CSD” (which is an abbreviation for “continuous service date” or, roughly speaking, date of hire), “Date Became a Sergeant,” and “Staff Sergeant Experience.” For S.Sgt. Paul, his CSD is listed as December 5, 2011. The next two columns are blank. For Candidate A, the “CSD” is November 12, 2001, “Date Became a Sergeant” is July 30, 2015, and “Staff Sergeant Experience” is February 10, 2017 – present. For Candidate B, the “CSD” is August 18, 1991, “Date Became a Sergeant” is blank, and “Staff Sergeant Experience” is September 19, 2016 – present. For Candidate A, the “CSD” is August 26, 1991, “Date Became a Sergeant” is blank, and “Staff Sergeant Experience” September 19, 2016 – present.”

34The Employer’s witnesses gave evidence about the importance of work experience as a factor in management competitions. DS Cicak, Supt. Wasylyk, and Ms. Bryan testified that experience at the Staff Sergeant level is a valid and important part of selecting the best candidate for a Staff Sergeant position. DS Cicak added that Staff Sergeant experience at TSDC is very important because it is a unique institution mainly due to its size, inmate population, operations, and supervision model.

35Having carefully considered the evidence, I find that experience as a Staff Sergeant at TSDC was a legitimate requirement for being awarded one of the 3 permanent Staff Sergeant positions at TSDC in May 2017.

36At the hearing, S.Sgt. Paul argued that it was unfair that experience working as a Staff Sergeant at TSDC could have been required for being awarded such a position on a permanent basis. He asked rhetorically how one could be expected to already have experience in the very position that one was seeking. The first answer is straightforward based on the evidence: the 3 successful candidates did have work experience as a Staff Sergeant at TSDC, so acquiring that experience is simply part of how one progresses to a permanent position in that role. The second answer is clear from the evidence of what happened next: S.Sgt. Paul was offered and accepted the very type of temporary assignment as a Staff Sergeant at TSDC that was required. In short, S.Sgt. Paul did not yet have the necessary experience that the 3 successful candidates had, so the Employer took steps so that he could acquire it.

37As noted above, even though he was not one of the successful candidates for one of the 3 permanent Staff Sergeant positions, S.Sgt. Paul was offered and accepted a 12-month temporary assignment as a Staff Sergeant at the TSDC starting September 2017. S.Sgt. Paul says that it was during this time that he experienced some of the incidents of discriminatory and improper treatment in his employment 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. These incidents will be addressed in greater detail in another section of this decision.

38Sometime in the summer of 2018, there was an “Expression of Interest” posting for a 6-month temporary assignment as the Deputy Superintendent, Operations (DSO) – Direct Supervision and Behaviour Management Unit at TSDC. The posting date on the document is May 29, 2018; applicants were to submit their applications (an essay and a resume) by June 12, 2018. S.Sgt. Paul says he successfully competed for the position sometime in August 2018. The evidence of the Employer’s witnesses is that around the time S.Sgt. Paul’s temporary assignment was about to expire in September 2018, he sent an email to Supt. Wasylyk, cc’d to other members of the Institution’s senior administration, asking to continue his employment at TSDC, and that S.Sgt. Paul was then given the assignment.

39The email, dated September 10, 2018, reads as follows:

Hello Senior Admin,

I trust that you all had an excellent weekend.

The purpose of this email is to inquire about the potential 2 fulltime Staff Sergeant positions that may be upcoming at TSDC.

I competed in July 2017 for a Fulltime Staff Sergeant position at TSDC. I was successful in that competition and was awarded a 12 month contract which expires this month. I recently won another competition for DS Deputy. Since returning to TSDC September 4th 2017, I have genuinely enjoyed being here.

I do love working at TSDC and I am confident that we can take Direct Supervision to the next level. Over the past year, I have zero sick days and I believe that this is a reflection of my happiness, commitment and dedication to TSDC.

I have taken multiple opportunities to coach and mentor staff and taken ownership and accountability for the areas and the employees that I directly supervise.

I am presently wondering if my scores from the competition in July of 2017 can be used to slot me into a Fulltime Staff Sergeant position here at TSDC as I have already competed for this. This by no means would be considered as a role-over.

Thank you for your time,

Tristan

40At the hearing, S.Sgt. Paul disagreed with the Employer’s suggestion that he was simply given this assignment. He says that he competed for the opportunity and that he was later told by two of the panel members that he had the highest score. The Employer denies that any of its representatives would have disclosed the scores to S.Sgt. Paul because the process is confidential. Either way, there is no dispute that S.Sgt. Paul was offered the assignment and that he accepted it. It is also clear that while S. Sgt. Paul may have “competed” for this temporary assignment, it was not a competition in the same sense that he (and others) competed for the 3 permanent Staff Sergeant positions at TSDC in May 2017. Others may have expressed interest in the 6-month temporary assignment as the Deputy Superintendent, Operations (DSO) – Direct Supervision and Behaviour Management Unit at TSDC, and S.Sgt. Paul was the one selected, so if he “competed,” it was only in the sense that more than one person came forward, and the Employer had to determine who would get the temporary assignment.

41The parties entered into a “Temporary Assignment Agreement” with a Start Date of September 10, 2018, and an End Date of May 10, 2019. The document was to be signed by a representative of TEDC (the location of S.Sgt. Paul’s home position), a representative of TSDC (the location of the DSO temporary assignment) and S.Sgt. Paul. The date listed on the signature blocks is November 8, 2018, which strongly suggests that that was the date when the Agreement was prepared. S.Sgt. Paul signed the document and dated his signature November 19, 2018. Supt. Wasylyk signed the document for TSDC and dated his signature November 20, 2018. Supt. Timoll, the Superintendent of TEDC is listed as one of the signing parties, although her signature was not on the copy of the Agreement that was before the Board. However, there was no dispute about the validity of the document.

42The timing of when S.Sgt. Paul started in the temporary assignment as the Deputy Superintendent, Operations (DSO) – Direct Supervision and Behaviour Management Unit is unclear. The evidence suggests that he was in the role well before he sent the September 10, 2018 email. First, the email itself mentions that he “was awarded a 12 month contract [as a Staff Sergeant] which expires this month,” and that he “recently won another competition for DS [Direct Supervision] Deputy” [emphasis added]. As there is no evidence of any other competitions for DS Deputy, this can only be the 6-month temporary assignment that forms part of S.Sgt. Paul’s work history at TSDC. Second, there is a Memorandum to All Staff of TSDC dated July 13, 2018 announcing updates to the management team. The Memo consists of a chart listing the name, position, and area of responsibility for what could be described as the senior administration of the Institution. S.Sgt. Paul is listed in the position of “Deputy Operations” having areas of responsibility in “Direct Supervision and Behaviour Management.” At the end of the Memo, there is a brief statement that reads: “From the recent Express of Interest, the following successful candidates are: S.Sgt. Tristan Paul, Direct Supervision and Behavioural Management Unit and [CC] Sergeant, Direct Supervision Champion” [emphasis added]. Finally, a subsequent Memorandum dated October 12, 2018 listing the reassignment of some Deputy of Administration portfolios also lists S.Sgt Paul as responsible for “Direct Supervision, BMU, Standing Orders” and reporting directly to Supt. Wasylyk.

43This evidence strongly suggests that S.Sgt. Paul had already been in the role of DSO – Direct Supervision and Behaviour Management Unit at the time he wrote his September 10, 2018 email, likely for some weeks and possibly as early as mid-July, and that he was not placed in that position as a result of sending it. Although nothing turns on this point, the fact that the Start Date of the Temporary Assignment Agreement is the same date and the email (September 10, 2018) is either a coincidence or it was designed to align with the end date of 12-month temporary assignment as a Staff Sergeant at the TSDC. The Agreement itself was not signed until November 2018, although this is perhaps not surprising in a bureaucracy where things often move slowly. In any event, from some time around late July 2018 to May 10, 2019, S.Sgt. Paul, whose "home" position was still as a Sergeant at TEDC, was on temporary assignment as the Deputy Superintendent, Operations (DSO) – Direct Supervision and Behaviour Management Unit at TSDC.

44S.Sgt. Paul says that during this time, he continued to experience incidents of discriminatory and improper treatment in his employment 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. These incidents will be addressed in greater detail in another section of this decision.

45In a letter to S.Sgt. Paul dated May 7, 2019, Supt. Wasylyk confirmed that the temporary assignment was soon coming to an end and that he was to return to his home position at TEDC. The main part of the letter reads as follows:

As you are aware, the duration of your current temporary assignment at the Toronto South Detention Centre (TSDC) as Deputy Superintenqent, Operations is between September 10, 2018 and May 10, 2019. During our meeting on May 1, 2019, I advised you that your temporary assignment would be ending, that your last day at TSDC would be May 17, 2019, and that you would be returning to your home position at the Toronto East Detention Centre (TEDC).

46As to the circumstances surrounding the end of his temporary assignment and his departure from TSDC, S.Sgt. Paul does not dispute that the assignment came to an end on May 10, 2019, and he acknowledges 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. He says this was the culmination of the arbitrary, discriminatory, and bad faith treatment he received from the Employer at the TSDC.

47At the hearing, the evidence from the Employer’s witnesses on this allegation centred around two main points. First, S.Sgt. Paul’s temporary assignment had come to an end at the agreed-upon date, and the Employer had no obligation to extend it. Second, there was a staffing shortage at TEDC, and all available Sergeants were being recalled to that Institution around that time.

48In any event, there is no dispute that S.Sgt Paul did not return to TEDC. Instead, he went off work on or about May 6, 2019, seeking medical attention and later filed a claim with WSIB for reasons of mental stress and/or psychological trauma. He also filed this complaint. The parties’ dispute as to whether the decision that S.Sgt Paul should return to TEDC will be addressed in greater detail below.

Incidents Involving S.Sgt Paul and His Co-workers

49As noted above, in his complaint, S.Sgt. Paul says that throughout his time at TSDC, he experienced discriminatory and improper treatment in his employment. The Employer failed to support him, undermined him, and inhibited his ability as a manager to carry out his duties and responsibilities. More specifically, he alleges that he was ignored when he came forward with concerns that he was being treated improperly by his co-workers, Senior Administration did not support him in dealing with a Corrections Officer who would not follow his direction, and 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.

50The evidence of the Employer’s witnesses and, more importantly, the documentary evidence tells a much different story. First, it is important to note that throughout the time in question, S.Sgt Paul was a manager – initially in a temporary assignment as a Staff Sergeant and then in a temporary assignment as a Deputy Superintendent. All of the provisions in the Respectful Workplace Policy and the COCAP with respect to the duties and responsibilities of managers and supervisors applied to him. The evidence from DS Cicak, Supt. Wasylyk, and many of the reports and correspondence show that S.Sgt Paul sometimes had difficulties dealing with co-workers, particularly female subordinates, who complained about how he spoke to and treated them.

51The evidence shows that S.Sgt. Paul often sought and received guidance and assistance from DS Cicak, Supt. Wasylyk, and DS Robinson, among others, about dealing with his co-workers and also that he received coaching and other forms of assistance from them as well. As a manager at that time, S.Sgt Paul also had many tools at his disposal when dealing with staff. The evidence reveals that his first reaction was often to reprimand or seek to discipline staff in response to real or perceived inappropriate or insubordinate behaviour. He was often advised or counselled to pursue a different, more constructive or remedial approach, which advice and counsel he tended not to heed. Overall, there is ample evidence of friction and abrasiveness in some of S.Sgt Paul’s workplace relationships. Still, as explained below, overall, the Employer met its responsibilities, and he was treated in accordance with the terms and conditions of his employment.

52My comments and findings about S.Sgt. Paul’s evidence about these matters is summarized below.

Sgt. Tracy Hanson

53S.Sgt. Paul says that in January 2018, Supt. Wasyslyk tasked him with informing Sergeants that they had to wear their ties. He was also tasked with addressing misconduct reports that were either not filed, recorded in the system, or investigated. He spoke to Sgt. Hanson about some or all of these matters, but Sgt. Hanson responded unprofessionally and was insubordinate. S.Sgt. Paul reported this to his supervisor at the time, DS Hullah, who took no action. There were other similar incidents involving Sgt. Hanson, as well as examples of incomplete work and not following policy, says S.Sgt. Paul, all of which he reported to DS Hullah, again with no response. Finally, S.Sgt. Paul sent an email to Sgt. Hanson for not following directions and setting out the relevant policies and his expectations. Eventually, S.Sgt. Paul says, DS Hullah told him there would be a meeting with Sgt. Hanson to discuss expectations and insubordination.

54The meeting did not go well. Another Deputy Superintendent was allowed to be present as Sgt. Hanson’s support person, but S.Sgt. Paul says he was not offered a support person. Sgt. Hanson was rude to him and insubordinate, S.Sgt. Paul says, and she expressed a longstanding personal dislike for him, the origin of which S.Sgt. Paul had no memory of. At the end of the meeting, which S.Sgt. Paul says was not productive and did not resolve anything, he asked DS Hullah about filing a complaint against Sgt. Hanson, but DS Hullah discouraged him from doing so.

55There were other incidents with Sgt. Hanson in October 2018, says S.Sgt. Paul, while he was on temporary assignment as the Deputy Superintendent, Operations (DSO) – Direct Supervision and Behaviour Management Unit, including claims that he had blamed her for problems at TSDC that S.Sgt. Paul says were not true. S.Sgt. Paul says he later filed a report about these and other incidents with DS Robertson, but it went nowhere.

DS Susan Hullah

56S.Sgt. Paul says that in January 2019, DS Hullah accused him of using an inappropriate word in an email that he had sent to a female Sergeant. Specifically, he says, DS Hullah was upset that he had asked a Sergeant to “retrieve” a memory stick, communicating with her as if she was a dog. S.Sgt. Paul says that the Sergeant in question had not expressed any concern or complained to him about what he had said. DS Hullah then sent an email mentioning the matter, cc’d to other members of Senior Administration, referencing “further mediation” to resolve the issue. S.Sgt. Paul says that there had been no previous mediation involving the Sergeant and that it was inappropriate for DS Hullah to have mentioned mediation because it is confidential. He complained about this to others, including DS Robertson, but nothing was done.

57Later in January 2019, DS Robertson called a meeting of the Deputy Group, the purpose of which was to find strategies for them to work together and improve working relationships. S.Sgt. Paul says that when he spoke during this meeting, other Deputies, including DS Hullah and DS Aspiotis, criticized and laughed at his suggestions. They also rolled their eyes, spoke over him, and used profanity. DS Robertson ended the meeting because it was not productive. S.Sgt. Paul asked DS Robertson to follow up about the comments and behaviour that he had experienced, but she never did so.

CO Jason Groenveld

58S.Sgt. Paul says that in March and April 2019, when he was on temporary assignment as the Deputy Superintendent, Operations (DSO) – Direct Supervision and Behaviour Management Unit, there were several incidents with CO Groenveld, who was the local union President. On one occasion, CO Groenveld was upset about a decision that S.Sgt. Paul had made to not cancel inmate visits after an incident in an area where he was working. S.Sgt. Paul says CO Groenveld raised his voice and used profanity towards him despite being asked to stop. When he reported this to some members of the Senior Administration S.Sgt. Paul says nothing was done, although he was reminded about CO Groenveld’s role with the union. Later, S.Sgt. Paul says, CO Groenveld sent an email referring to a decision that he had made as “absolutely absurd” and he cc’d the email to other COs and some members of the Senior Administration.

DS Jim Aspiotis

59S.Sgt. Paul says that sometime in November 2017, soon after he arrived at TSDC on the temporary assignment as a Staff Sergeant, he met DS Aspiotis, who had also recently joined the Institution. They talked about their background, and DS Aspiotis told S.Sgt. Paul that he had previously been in CSOI. S.Sgt. Paul says he told DS Aspiotis that the work at CSOI sounded interesting and inquired why he had left, to which DS Aspoiotis replied, “because they are giving all the coloured guys like you the good jobs.” S.Sgt. Paul says he told DS Aspiotis that the comment sounded racist and he did not appreciate it, and DS Aspoiotis laughed and walked away.

60S.Sgt. Paul says there were many other incidents when DS Aspiotis belittled, bullied, intimidated, embarrassed, and undermined him, often in front of subordinates or members of the Senior Administration. There were incidents when DS Aspiotis blamed him for mistakes made by others, says S.Sgt. Paul, or accused him of not doing his job, sometimes in front of others. DS Aspiotis once angrily accused him of talking about inmates in an area where they could be overheard by other inmates. On that occasion and many others, says S.Sgt. Paul, DS Aspiotis used profanity and spoke inappropriately to him. S.Sgt. Paul says that by June 2018 he had written and submitted several reports about these incidents, but nothing happened.

61S.Sgt. Paul says that later, when he was on temporary assignment as the Deputy Superintendent, Operations (DSO) – Direct Supervision and Behaviour Management Unit, there were other incidents, including the January 2019 meeting of the Deputy Group where DS Aspiotis (and DS Hullah) criticized and laughed at his suggestions. They also rolled their eyes, spoke over him, and used profanity. This also happened during regular morning meetings, says S.Sgt. Paul. DS Aspiotis and DS Hullah would sometimes behave this way in front of other members of Senior Administration, including DS Robertson, DS Cicak, and Supt. Wasylyk. DS Aspiotis and DS Hullah would also boast that they were “untouchable” because they took smoke breaks with other members of Senior Administration.

62At the hearing, it was noted that DS Aspiotis is deceased. Whether, and if so, when, S.Sgt. Paul ever reported the incident when DS Aspiotis is alleged to have made the comment that “they are giving all the coloured guys like you the good jobs” before the start of these proceedings was a matter of dispute between the parties. S.Sgt. Paul says that he reported it to S.Sgt. Wasylyk during a weekly meeting, but was unable to say when. Supt. Wasylyk testified that S.Sgt. Paul never told him about the incident and that if he had, he would have acted on it, because it was a serious matter.

63There is no written evidence that S.Sgt. Paul raised this incident in any of the reports or emails that he wrote during his time at TSDC, including a lengthy report that he wrote in late June 2018 where he complained about DS Aspiotis speaking to him “negatively and in a condescending manner” and described other incidents and problems he was having with DS Aspiotis. There is also the September 10, 2018 email that S.Sgt. Paul sent to Senior Administration at TSDC when he was seeking one of the “potential 2 fulltime Staff Sergeant positions that may be upcoming at TSDC” where he says he has “genuinely enjoyed” being at TSDC since arriving in September 2017 and adds, “I do love working at TSDC and I am confident that we can take Direct Supervision to the next level. Over the past year, I have zero sick days and I believe that this is a reflection of my happiness, commitment and dedication to TSDC.” He also mentions workplace relationships: “I have taken multiple opportunities to coach and mentor staff and taken ownership and accountability for the areas and the employees that I directly supervise.”

64Having carefully considered the evidence, I find that on a balance of probabilities, the November 2017 incident when DS Aspiotis is alleged to have made the comment that “they are giving all the coloured guys like you the good jobs” to S.Sgt Paul did not take place as alleged. First, while S.Sgt. Paul raised many other concerns about DS Aspiotis, including his behaviour towards him and comments that he made to him, there is no evidence that S.Sgt. Paul ever mentioned this particular incident before the start of these proceedings. In short, S.Sgt. Paul complained about DS Aspiotis, and he did so in writing and in unusually strong terms, given their respective roles as managerial co-workers, and long before he left TSDC. If the incident had occurred, it is likely that at some point S.Sgt. Paul would have raised it with someone in Senior Administration or otherwise mentioned it. It is highly unlikely that S.Sgt. Paul ever raised the incident with Supt. Wasylyk, because the comment is racist, offensive, and highly inappropriate, so Supt. Wasylyk would have taken it seriously and acted on it if S.Sgt. Paul had mentioned it to him. I also find that in the spring of 2018, S.Sgt. Paul applied for and was offered and accepted the temporary assignment as DSO, and soon after that, he genuinely enjoyed working his time at TSDC and loved working there. It is highly unlikely that he would have described his working environment in such glowing terms if it was a place where he had been subjected to an offensive racist comment. Overall, it is highly unlikely that S.Sgt. Paul would have let this comment pass, given its nature and particularly given how fraught his working relationship with DS Aspiotis later became. In other words, if this comment had been made, the allegation about it would have surfaced long before the start of these proceedings.

65In any event, even if DS Aspiotis made this comment in November 2017, there is no evidence that it was connected to either the decision with respect to the hiring of the 3 permanent Staff Sergeant positions at TSDC in May 2017 or S.Sgt. Paul’s return to his home position at TEDC in May 2019. There is no evidence that DS Aspoiotis played any role in either of those decisions or that he had any influence over them.

SSgt Cindy Perry

66S.Sgt Paul says that sometime in early 2019, there was a problem in the DS units where clothing, newspapers, food, blankets, and other items were being hoarded, causing a security problem. He came up with a strategy for a “cleanest unit” competition which was approved by Supt. Wasylyk. S.Sgt Paul implemented the competition, but there was no improvement to the unit supervised by SSgt Perry. He communicated his expectations, but she did not comply. S.Sgt Paul says that he spoke to Supt. Wasylyk about this, and he advised her to speak to SSgt Perry after a morning meeting, but when he did so, she was insubordinate.

67In early April 2019, S.Sgt Paul sent an email to others in Senior Administration making them aware of his concerns with SSgt Perry and that he intended hold her accountable by following the appropriate process. He says he received no response. He then contacted an Employee Relations Advisor who told him about his options, but still received no response or support from Senior Administration.

Black History Month

68S.Sgt Paul says he was assigned to oversee this event and act as a management representative on the organizing committee. In contrast to previous years, when there was a budget of about $1500, he was given no budget to work with. Other members of the committee were upset about this, particularly CO Mark Brewster, who sent several angry emails about the lack of support from management and eventually resigned from the committee. S.Sgt Paul says he made several suggestions, including seeking funds from another committee and for a volunteer speaker, but these were not well received, and CO Brewster questioned why management should have a role in the event when it was not contributing anything. S.Sgt Paul says CO Brewster was confrontational with him and singled him out for blame. He brought this to the attention of others in Senior Administration but received no support and CO Brewster’s comments and behaviour were never addressed.

69The evidence of the Employer’s witnesses and, more importantly, the documentary evidence tells a much different story. First, it is important to note that throughout the time in question, S.Sgt Paul was a manager – initially in a temporary assignment as a Staff Sergeant and then in a temporary assignment as a Deputy Superintendent. All of the provisions in the Respectful Workplace Policy and the COCAP with respect to the duties and responsibilities of managers and supervisors applied to him. The evidence from DS Cicak, Supt. Wasylyk, and many of the reports and correspondence show that S.Sgt Paul sometimes had difficulties dealing with co-workers, particularly female subordinates, who complained about how he spoke to and treated them.

70The evidence shows that S.Sgt. Paul often sought and received guidance and assistance from DS Cicak, Supt. Wasylyk, and DS Robinson, among others, about dealing with his co-workers and also that he received coaching and other forms of assistance from them as well. As a manager at that time, S.Sgt Paul also had many tools at his disposal when dealing with staff. The evidence reveals that his first reaction was often to reprimand or seek to discipline staff in response to real or perceived inappropriate or insubordinate behaviour. He was often advised or counselled to pursue a different, more constructive or remedial approach, which advice and counsel he tended not to heed. Overall, there is ample evidence of friction and abrasiveness in some of S.Sgt Paul’s workplace relationships. Still, as explained below, overall, the Employer met its responsibilities, and he was treated in accordance with the terms and conditions of his employment.

End of DSO Temporary Assignment and Direction to Return to TEDC

71In May 2019, S.Sgt Paul was informed that he would be returned to his home position at the TEDC. He says that all of the Deputy Superintendents at TSDC were in acting positions, but he was the only one asked to return to his home position. He was also the only South Asian acting Deputy, the others being Caucasian or of African descent. He had received excellent performance reviews but was the only one asked to return home. He adds that other Sergeants who, like himself, had home positions at TEDC and acting positions at other institutions were not asked to return to TEDC. He says that as far as he is aware, he was the only one, so he questions whether there was truly a shortage of Sergeants at TEDC when the Employer was not doing everything it could to address that situation.

72Supt. Timoll, who was the Superintendent of TEDC at that time (and remains so), testified that in April and May 2019 TEDC was experiencing operational staffing pressures and needed to fill a number of vacancies. The vacancies were filled by using day-to-day staff to backfill, recalling staff, and running its own competitions in addition to the ongoing competitions that were run centrally. Supt. Timoll says that TSDC was advised that TEDC needed all staff for operational reasons and was recalling all available Sergeants. There was a discussion between TEDC, TSDC, and Central Region Office and it was confirmed that S.Sgt Paul would return to TEDC on May 22, 2019. Supt. Timoll also gave details about another TEDC Sergeant who was working at another institution and who returned to TEDC around the same time at the end of a temporary assignment.

73Supt. Wasylyk testified that TSDC was advised that there was a staff shortage at TEDC and that TDEC was recalling all available Sergeants. S.Sgt Paul was notified at the beginning of May 2019 that his temporary assignment as a DSO would be ending on the agreed-upon date of May 17, 2019 and that he would be returning to his home position at that time.

74S.Sgt Paul says that in April 2019, a month or so before the end of his temporary assignment, Supt. Wasylyk told him that there had been complaints about his etiquette during meetings and that he had been seen “not sitting up straight” by someone “higher up” in a recent meeting. S.Sgt Paul says that he had never before received any comments or complaints about his professionalism, etiquette, or posture during meetings. A short time later, S.Sgt Paul says that Supt. Wasylyk and DS Robertson told him that there had been complaints and reports about him and that “the wrongdoing must stop.” When he asked for specifics, he did not receive a clear answer. S.Sgt Paul says that a few months earlier, he had been told by SSgt Wayne McCoy that there was a “chat group” consisting of female Sergeants at TSDC where were making negative comments about him and encouraging others to come forward and do the same. S.Sgt Paul says when he learned about this, he reported it to DS Robertson, but nothing was done. Still, he says that in his meeting with Supt. Wasylyk and DS Robertson, he was not given any details about the concerns about him, nor was he asked to write a report or given supports.

75Supt. Wasylyk testified that he knew there were some interpersonal work-related issues with S.Sgt Paul, most of which were handled by DS Robinson and DS Cicak. He was aware of concerns about S.Sgt Paul’s style and “soft skills” with subordinates and co-workers and that DS Robertson had provided coaching and management tools to S.Sgt Paul about treating people respectfully and being less abrasive and dismissive. Supt. Wasylyk says this was likely the subject of any meeting about these matters that he would have had in April 2019 with S.Sgt Paul and DS Robertson. Supt. Wasylyk says that he would likely have relayed any feedback he received about S.Sgt Paul’s conduct during meetings directly to him, and he recalled on occasion when a Deputy Regional Director noticed a lack of professionalism, after which he told S.Sgt Paul to be mindful of his body language and the perceptions of others during formal meetings.

Analysis

76The issue to be determined is whether the Employer breached any of S.Sgt. Paul’s terms and conditions of employment. There were three different periods when S.Sgt. Paul alleged that this occurred: when he was not awarded one of the 3 permanent Staff Sergeant positions at TSDC in May 2017, during his time at TSDC when he says he received improper and discriminatory treatment, and when he was required to return to his home position as a Sergeant at TEDC in May 2019. The onus is on S.Sgt. Paul to establish that the Employer treated him in a way that arbitrary, discriminatory, unfair, or in bad faith with respect to these incidents.

77The terms and conditions of S.Sgt Paul’s employment are OPS Employment Policy, the Respectful Workplace Policy, and the COCAP. The Ontario Human Rights Code and the Occupational Health and Safety Act are also applicable, and both are incorporated by reference in the Employer’s policies. The remaining documents referred to by S.Sgt. Paul, including the Employer’s Recruitment Policy, Hiring Steps, Statement of Ethical Principles, Anti-Racism Policy, and others, are best described as general statements of intention, aspirational guidelines, or policy objectives. They are important and cannot be ignored. Still, they do not form part of the terms and conditions of employment over which the Board has jurisdiction, and the Board has made it clear that general commitments to trust and fairness are not specific enough to translate into an enforceable contractual term.

78It should also be noted that the Anti-Racism Policy did not come into effect until April 2018, so it was not in place during the May 2017 competition for the 3 permanent Staff Sergeant positions. The Anti-Racism Policy also expressly states that it does not apply to matters of individual racial discrimination and/or harassment, so it was not a factor when S.Sgt Paul was in the temporary DSO assignment until May 2019.

79Regarding job competitions, the Board has been clear that the standard that applies to the Employer is reasonableness, not perfection. The onus is on the Complainant to establish that a competition was conducted in an arbitrary, discriminatory, or unfair manner, or the Employer made decisions regarding the applicant in bad faith or that the competition was so egregiously flawed as to be found invalid.

80In Murphy v. Crown (Ministry of Transportation) 1999 CanLII 13876 (ON PSGB), the complainant alleged that she had been wrongfully transferred and then not considered for a competition for a managerial position that she wanted. She claimed that the transfer came about because of personal animosity against her by other managers and that the transfer was flawed because the Employer did not follow its own policies. The Board dismissed these allegations, finding that although there was evidence that some managers expressed a dislike for the complainant there was no evidence that this had any connection to the transfer. The Board also found that while the Employer may not have followed best management practices, such as consulting the complainant about the transfer, there was no requirement for it to do so, and that there was a clear business rationale for its decision.

81As to the Employer’s decision to not interview the complainant and therefore not consider her for the position she wanted, the Board said this:

The evidence before us regarding the decision not to give Ms. Murphy an interview for the position of Employment Equity Manager in 1992 is that the employer considered her application and decided that it would not be in the best interests of the ministry to have Ms. Murphy do the same job twice. There is no evidence before the Board to suggest that the decision not to interview Ms. Murphy was made in bad faith or was discriminatory, unfair or arbitrary. That Ms. Murphy thought she was qualified and should have got an interview is irrelevant. (pg 38-39)

82There were also allegations about the Employer’s handling of the competition file (it could not be found) and the fact that there was no written record of the decision not to interview the complainant. The complainant argued that an adverse inference should be drawn from these facts and that the problems with the file were further evidence of discrimination and unfair treatment against the complainant. The Board rejected this argument and said as follows:

There was evidence that the competition file was lost. Despite a thorough search it was never found when the grievor’s counsel asked for it as part of disclosure. This is potentially problematic. The grievor had a right to its disclosure. The grievor’s Counsel asked us to infer as a result of the missing file and the evidence of a pattern of discrimination against the grievor that the decision not to grant her an interview was discriminatory. We cannot do this. There is no evidence to support a finding that Mr. Devooght or Mr. Mealing discriminated against Ms. Murphy. We have found no pattern of discrimination or harassment against the grievor. There were no incidents which occurred when Ms. Murphy was Manager of Employee Relations for almost ten months before her transfer to the Policy Branch.

Second, Ms. Kelch gave evidence that the competition file only referred to the five people who were interviewed. She said there was nothing in it on the employer’s decision not to give Ms. Murphy an interview. Ms. Kelch gave a credible reason for not giving Ms. Murphy an interview: she testified that it was a conscious decision by the employer not to do so. It was not arbitrary it was thought out. Thus there is no evidence in the record to support a finding of bad faith or discrimination here. (pg 39)

83In OPSEU (Damani) v. Crown (Ministry of Health and LTC) 2001 CanLII 25774 (ON GSB), the grievor applied for a temporary position that had been posted informally by email. She claimed that hers was the only application received by the deadline but that the Employer had extended the deadline, allowing others to apply, and those other candidates were successful. The grievor argued that the only explanation for this was discrimination on the basis of her race or her union activity. The Board commented as follows, referring to an earlier decision involving the same grievor:

[22]It is appropriate to repeat here some of the observations I made when I dismissed the grievor’s earlier grievances:

17I accept as a general matter that racism “is out there,” as the grievor put it at one point. I agree with union counsel’s submission that racism is often latent, in the sense that those whose conduct is influenced by racist attitudes may not openly acknowledge it. It is not necessary for the union to prove that discrimination on the basis of race was the sole or even a major reason for employer conduct detrimental to the grievor. If discrimination on the basis of race played any part in the employer’s treatment of the grievor, then it breached the collective agreement provision that prohibited such discrimination. The presence and effect of racist attitudes may be difficult to detect and prove. It does not follow, and the union does not suggest, that proof is therefore unnecessary, or that the mere allegation of racial discrimination shifts the burden of disproving the allegation to those accused of it. The same may be said about anti-union animus and discrimination on the basis of union activity.

18The grievor says she cannot understand why she has not advanced in the civil service unless it is because she is the victim of discrimination on the basis of her race or union activity or both. Her subjective belief that she is the victim of discrimination, however strong, is not proof that she is.

84The Board has also commented on the Employer’s right to determine the requirements for a position, evaluate the candidates, and generally decide what qualifications an employee must have to be the best person to perform the work. In McQueen v. MSGCS 1999 CanLII 13880 (ON PSGB), there was a job competition for a Deputy Superintendent at the OCDC. In the competition, the Employer decided that candidates must possess at least 3 months' experience in a similar management position as a part of the criteria for the position. The advertisement for the competition did not set out this requirement as a specific qualification for the position but did specify “Demonstrated supervisory, organizational and decision-making experience.”

85The complainant argued that another employee had been arbitrarily awarded a temporary assignment in the same position, thereby receiving preferential treatment and an unfair advantage, and that a requirement for work experience in the role was then used to deny the complainant the position. The complainant also argued that his request to fill the temporary position on a rotational basis had been improperly denied for discriminatory reasons as was his request to be interviewed for the position and that he was otherwise qualified.

86The Board dismissed the complaint, finding as follows:

The Employer in this instance determined that a 3 month's experience requirement was a necessary qualification for the position of Deputy Superintendent, Operations, based presumably upon its assessment of the duties of the position and the desirable type of qualifications that the successful applicant should possess. In the absence of unreasonableness in the determination of the criteria, the judgement of the Employer should stand, and this Board should not disturb the Employer’s decision. In the case of Adele Scott Anthony, supra, the Board concluded that it had no jurisdiction to interfere with the Employer's right to determine the scope of a competition, and in the Brander case, supra, the Board decided that in the absence of bias or unfairness it had no authority to substitute its judgement for that of the Employer in its assessment of the qualifications of the candidates. The same may be said for the Employer's determination of the appropriate qualifications for the position.

In the case before this Board, the competition was open to any classified employee in the Ministry, and the qualifications for the position were selected to reflect the Employer's view of the suitable employee for the position. A number of other Ministry Employees apparently applied for the position in addition to the Grievor and the successful candidate. These employees were also unsuccessful in the competition. The Grievor no doubt felt that the Employer's refusal to rotate him through the position was unfair and discriminatory, but the Employer has no obligation to do so, and on this basis, this Board must conclude that the Employer's actions were not discriminatory in a bad faith sense. (pg 4)

87As to S.Sgt. Paul’s claims of discrimination contrary to the Ontario Human Rights Code, the Ontario Court of Appeal has recently affirmed the well-established test that should be applied. In Imperial Oil Limited v. Haseeb, 2023 ONCA 364, the Court said this:

52The ultimate burden to prove a claim of discrimination on a prohibited ground is on the applicant. However, the case law establishes a series of shifting evidential burdens to structure the analysis. The law is well-settled and was recently considered by this court in Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458, at paras. 143-51.

53An applicant who brings a claim under the Code bears the ultimate burden to prove that a discriminatory ground under the Code was a factor in the impugned conduct. If the applicant establishes a prima facie case of discrimination, then the evidential burden shifts to the responding party to rebut the prima facie case by providing a credible, non-discriminatory explanation for the impugned conduct which rebuts the prima facie case. In other words, once a prima facie case of discrimination on a prohibited ground is demonstrated, the evidential burden shifts to the respondent to rebut that a prohibited ground of discrimination was a factor in the impugned conduct. If the responding party succeeds in rebutting the prima facie case, then the evidential burden shifts back to the applicant to prove that the respondent’s non-discriminatory explanation is pretextual. See also: Peel Law Association v. Pieters, 2013 ONCA 396 at paras. 63-74; Ontario v. Association of Midwives, 2022 ONCA 458

54The ultimate burden of persuasion always rests with the party claiming discrimination. However, the shifting evidential burdens support the underlying principle of anti-discrimination legislation that where a responding party seeks to demonstrate a non-discriminatory reason for the impugned action, it is not sufficient to show that a non-discriminatory reason was part of the reason for the action if discriminatory reasons were also part of the reason. Rather, the responding party must show that the non-discriminatory reason was the sole reason for the action. In other words, the jurisprudence recognizes that the reasons that motivate actions taken by, for example, an employer or potential employer, may be multi-factorial. If one of the reasons is discriminatory, this establishes a violation of the Code . . . . The presence of a non-discriminatory reason for the impugned conduct does not insulate the conduct from a finding of discrimination under the Code if it is combined with one or more discriminatory reasons.

88In this case, S.Sgt. Paul was not one of the successful candidates in the May 2017 competition for the 3 Staff Sergeant positions at TSDC. The Employer decided that prior experience in the role was very important, and the evidence shows that the 3 successful candidates had that experience and S.Sgt. Paul did not. This was the Employer’s explanation for the reason that S.Sgt Paul did not get one of the positions even though he received a higher score than any of the successful candidates. Having carefully considered all of the evidence, I find that the Employer has provided a credible, non-discriminatory explanation for its hiring decision and that the Employer’s reason as to why S.Sgt Paul was not one of the successful candidates is entirely free of the taint of discrimination.

89Experience as a Staff Sergeant at TSDC was a legitimate requirement for being awarded one of the 3 permanent Staff Sergeant positions at TSDC in May 2017. TSDC is a unique institution mainly due to its size, inmate population, operations, and supervision model. Moreover, the Employer was presented with at least 3 candidates with this experience. The Employer decided that this was a very important criterion for the position, and the Employer knows the operation and the qualifications that are necessary to best perform the work. It is important to remember that the Employer is entitled to select candidates who are, in its view, best suited for the position and that, in general, work experience is not an improper consideration. While S.Sgt Paul scored very highly in the competition, the score did not take into account actual work experience in the role at TSDC, which the Employer determined was more important than a high score.

90It is true that the job posting did not say that prior experience working as a Staff Sergeant at TSDC was a requirement for the position. However, the job posting also did not say that positions would be awarded based solely on interview questions, oral communications, and a written assignment, which was the basis for the numerical scores. Instead, the Employer’s Hiring Steps document is more general and speaks to using the results from “the evaluation process” to select the “best-qualified candidate to fill the position.” These statements leave ample room for the Employer to decide that experience in the role is very important. In the job posting, a more concrete suggestion is that demonstrated work experience is important. Among other things, it says: “you can provide leadership and guidance to Sergeants and ensure compliance to correctional control standards, policies, legislation and procedures, and “you can direct, motivate and coach a team of Sergeants.” Actual experience in the role of Staff Sergeant is one of the best ways a candidate could demonstrate these qualifications.

91In addition, and because it is important to consider the Employer’s hiring decision for the 3 permanent Staff Sergeant positions at TSDC in the overall context of events, what happened next is very significant. S.Sgt. Paul was offered and accepted the very type of temporary assignment as a Staff Sergeant at TSDC that would give him experience in the role. That is, he did not yet have the necessary experience that the 3 successful candidates had, so the Employer took steps to allow him to acquire it. What S.Sgt. Paul did with that opportunity is a different matter, but the Employer’s decision to give him experience in the role and effectively “shore up” his qualifications for a permanent Staff Sergeant position forms an important part of the overall context of S.Sgt. Paul’s time at TSDC, including the time he was a candidate for one of the 3 permanent Staff Sergeant positions in May 2017 and ending in May 2019. The decision to give S.Sgt Paul a temporary assignment as a Staff Sergeant at TSDC beginning in September 2017 strongly supports the finding that the Employer was attempting to support S.Sgt. Paul and his career aspirations and that its treatment of him was free from any unfairness, bad faith, or discrimination.

92The next series of allegations relate to S.Sgt. Paul’s experience with his co-workers and fellow managers at TSDC, first when he was in the temporary assignment as a Staff Sergeant beginning in September 2017 and then when he moved to the temporary assignment as the as the Deputy Superintendent, Operations (DSO) – Direct Supervision and Behaviour Management Unit at TSDC.

93It is important to emphasize that the issue to be decided concerning these particular allegations is whether the Employer took the appropriate steps to meet its statutory obligations to ensure that the workplace was free from discrimination and harassment and that it took steps to address S.Sgt. Paul’s concerns at the time he raised them. In his complaint, S.Sgt. Paul alleged that he experienced adverse treatment and was treated differently from others in various incidents involving his co-workers and fellow managers at TSDC. In its preliminary decision, the Board found that in the broader context of all of the allegations in the complaint (including the decision not to offer him one of the 3 permanent Staff Sergeant positions after the 2017 competition and the decision that he return to TEDC in May 2019), an inference of discriminatory treatment could be drawn from those allegations. S.SGt Paul has now had an opportunity to call the evidence in support of these allegations.

94However, this hearing was not an inquiry into whether or not S.Sgt. Paul actually experienced workplace harassment from his co-workers and fellow managers at TSDC per se. This is a complaint by S.Sgt. Paul in which he had named his Employer as the Responding Party, alleging that his Employer has breached his terms and conditions of employment. This is not a workplace complaint against S.Sgt. Paul’s former co-workers and fellow managers. In fact, S.Sgt. Paul did not invoke the WDHP process during his time at TSDC. The issue to be determined is whether the Employer treated S.Sgt. Paul in a way that was arbitrary, discriminatory, unfair, or in bad faith.

95The Board has made an important distinction between this type of adverse treatment and mistakes made by managers that are the result of bad judgement or failure to follow best managerial or human resources practices. In Murphy v. Crown (Ministry of Transportation) 1999 CanLII 13876 (ON PSGB), the Board addressed allegations of unfair treatment by an employee who had faced a human rights complaint that had been brought by a co-worker. The Board said this about how the Employer dealt with the matter:

It was reasonable for Mr. Devooght to treat Ms. Bryant’s complaint differently to the other complaints he had received. Ms. Bryant complained in writing to Ms. Murphy, copying Mr. Devooght. He decided to take a mediative approach. Again this was reasonable. He did not do it well. It is not clear why he didn’t follow up with Ms. Murphy on the performance contract that she had prepared for Ms. Bryant. This points to bad management rather than any ulterior motive that would lead to a finding of unfairness to Ms. Murphy. The most significant incident occurred after Ms. Bryant was told by Ms. Murphy to go home on paid leave for a few days before she was to start her vacation. Ms. Murphy did this on the advice of Mr. Devooght who, when confronted by Ms. Bryant, told her she did not have to take the leave. He communicated this to Ms. Bryant without first telling Ms. Murphy. Mr. Devooght handled this situation very badly. While the Board recognizes he was dealing with a difficult situation, he did not use good management practices or show good judgment. However, we cannot conclude that there was a breach of the duty to be fair to Ms. Murphy in handling the Bryant harassment complaint. [pg. 37] [emphasis added]

96In S.Sgt. Paul’s case, even if his concerns would have been addressed differently, or more effectively, or with more positive outcomes, that does not constitute evidence of treatment that falls below the required standard, and it does not equate to a breach of S. Sgt. Paul’s terms and conditions of employment.

97Having said that this is not a decision about a workplace investigation into allegations of bullying and harassment by S.Sgt Paul, it is helpful to understand what is, and what is not, workplace harassment. This is important because it places S.Sgt. Paul’s evidence about his experiences at TSDC in context and assists in the determination of whether the Employer’s response to his various concerns was appropriate in light of the overall circumstances.

98The definition of harassment and the expectations of managers are set out in the Employer’s Respectful Workplace Policy. These are not in dispute and need not be repeated here. However, it is helpful to provide some further guidance on the generally accepted definition of harassment, which is sometimes otherwise known as personal harassment or workplace bullying. As many adjudicators and investigators have stated, the test for determining if actions or comments constitute harassment is objective. There does not have to be an improper motive or an evil intent in order for there to be a finding of harassment - even well-intentioned people can be found to have harassed others. The respondent in a harassment case cannot refute the allegation by saying that they had no intent to harass. In fact, rarely will a respondent ever admit or accept that they had such an intention. The real question is whether they knew or ought to have known that the offensive course of conduct would be unwelcome, which is an objective test.

99The objective approach also means that the opinion of the employee alleging harassment that the course of conduct was belittling, patronizing, or condescending does not automatically establish that there was harassment. Harassment is not proven simply because an employee takes offense at something that was said or done. There must be evidence that, from an objective standpoint, the alleged harasser knew or ought to have known that the course of comment or conduct was offensive or vexatious and would be unwelcome. A finding of harassment should only be made if there is objective evidence to support that claim.

100Adjudicators have also noted that sometimes, the challenge in harassment investigations is to distinguish between two different things: the normal abrasiveness of daily life in the workplace, including personal dislikes and personality conflicts, and harassment. This is one reason why it is often helpful to obtain advice from an outside party or consult an external workplace investigator when these types of allegations arise. Harassment is a serious subject and allegations of such an offense must be taken seriously and if found, addressed in a meaningful way. The reverse is also true. It is not appropriate to address every slight or setback in a workplace under a harassment complaint process. It would be unfortunate if the harassment process was used to vent feelings of minor discontent or general unhappiness with life in the workplace, so as to trivialize those cases where substantial workplace abuses have occurred. The first responsibility of people in the workplace is to work out their own differences for themselves, if they can. If they cannot, this process can and should be invoked where harassment is legitimately believed to have occurred. Otherwise, the complaint process could be used improperly or in situations that it is not suited to address.

101Allegations of personal harassment or workplace bullying should also not be used to deal with personality conflicts, personal animosity, or dissatisfaction with an individual's style of working. Many adjudicators and investigators have noted that co-workers do not have to be friends, or even like each other. A person may think that a co-worker or supervisor is incompetent, irritating, annoying, or frustrating. He or she may be abrasive or overly assertive. But the fact that an employee objects to any or all of these things does not mean that the conduct amounts to harassment. In other words, it is reasonable to expect employees to work with people who they may not find personally appealing or who they do not like. Friendliness and likeability are welcome in any workplace, but they are not job requirements. Employees may naturally gravitate towards co-workers who they find more appealing, but employees are expected to work with everyone. The exception is that nobody is expected to tolerate harassment or discrimination, and that everyone is entitled to be treated with respect and dignity.

102It is generally understood that a series of incidents must be found to have taken place before a finding of harassment can be made. A single severe incident which has a lasting impact on the individual can also constitute harassment. Essentially, the generally accepted definition of harassment means that more than one act or event is needed in order to constitute harassment and that taken individually, the acts or events may not constitute harassment. It is the repetition that generates the harassment.

103In other words, harassment consists of repeated and persistent comments or behaviour towards an individual to torment, undermine, frustrate, offend, or provoke a reaction from that person. It is persistent behaviour that pressures, frightens, intimidates, incapacitates, or offends another person. Individual incidents may seem inoffensive; it is the synergy and repetitive nature of the comments or behaviour that produces the harmful effects.

104Put another way, the label of bullying or harassment ought not to be invoked where there is no intent to be harmful in any way, unless there has been a heedless disregard for the rights of another person, and unless, as one adjudicator has stated, it can be fairly said, “you should have known better”. If the words or conduct are known or ought reasonably to be known to be offensive, and there is a pattern, it is likely harassment; but if a reasonable person would take the words or conduct as benign, the overly sensitive complainant will not be considered to be a victim of harassment or bullying.

105Having carefully scrutinized the evidence in this case, I find that there is insufficient evidence that S.Sgt. Paul was treated unfairly by the Employer or that any of the terms and conditions of his employment were breached as a result of the way that the Employer dealt with S.Sgt. Paul’s difficulties in the workplace. There is evidence of friction and personal dislike amongst and between S.Sgt Paul and some of his co-workers, however none of the incidents show that the Employer failed in its obligations to S.Sgt Paul. The evidence shows that some of the Employer’s interventions could have been more timely or more effective, but these are minor shortcomings that are entirely within the range of acceptable but different managerial styles and approaches to problem-solving and workplace dynamics.

106Some issues arose between S.Sgt. Paul and a few of the staff who reported to him or were his subordinates. S.Sgt Paul’s first reaction often was to move immediately towards a disciplinary approach. It was not inappropriate for his fellow managers and colleagues, namely members of Senior Administration, to have counselled, coached, advised, or steered him away from this. Moreover, the evidence also strongly suggests that S.SGt. Paul’s experience in workplace relations was very limited and that his own first instincts were open to question. For example, it is generally accepted that union representatives have far greater latitude in their dealings with managers and that the usual expectations around courtesy and politeness are somewhat relaxed. In this regard, S.Sgt. Paul’s reaction to his dealings with CO Groenveld were entirely misguided.

107When it comes to S.Sgt Paul’s workplace relationships with some of his peers and fellow managers, the dynamics were sometimes difficult. Again, there is evidence of friction and personal dislike. These situations were met with efforts that were focused on encouraging teamwork, problem-solving, professionalism, and collegiality. There were a variety of interventions, including mediation, meetings, and coaching sessions. S.Sgt. Paul was receiving support, and his concerns were not being ignored. The evidence shows that he often did not like the response he received or disagreed with it, but that is not the standard by which the Employer’s obligations to S.Sgt. Paul are measured.

108I have found that there is insufficient evidence to support the allegation that DS Aspiotis made a racist comment to S.Sgt Paul in November 2017. Overall, the Employer took reasonable steps to ensure that the workplace was free from discrimination and harassment, and S.Sgt. Paul’s concerns were addressed fairly as they arose. As a result, I find that S.Sgt Paul was not subject to discriminatory or unfair treatment during his time at TSDC and that there was no breach of his terms and conditions of employment in this regard.

109Finally, I turn to the time when S.Sgt Paul was required to return to his home position as a Sergeant at TEDC in May 2019. Having carefully considered all of the evidence, I find that the Employer has provided a credible, non-discriminatory explanation for this decision, and the Employer’s reasons for why this occurred are entirely free of bad faith, arbitrariness, or other impropriety.

110First, the temporary agreement that placed S.Sgt Paul in the Deputy Superintendent - Operations position came to an end on May 17, 2019. S.Sgt. Paul was not “removed” from the temporary assignment in the sense that the Employer took additional steps to change the course of events, either by terminating the assignment prematurely or otherwise intervening in the process to bring the assignment to an end. Rather, S.Sgt. Paul’s temporary assignment as Deputy Superintendent – Operations at TSDC, which was a developmental opportunity, came to its natural end, and the logical consequence of that was for him to return to his home position at TEDC. This is a written agreement signed by the parties, including S.Sgt. Paul. In my view, this alone would be a sufficient explanation, entirely free from unfairness, bad faith, or the taint of discrimination, for Supt’s Wasylyk to have written to S.Sgt. Paul reminding him that he would be returning to his home position at TEDC. S.Sgt. Paul was being treated exactly according to the terms of the written agreement he signed months earlier, and nothing was improper about that.

111Second, there was a staff shortage at S.Sgt. Paul’s home institution, TEDC, where he was a Sergeant. At least one other employee whose home position was the same as S.Sgt Paul and who was also in a temporary assignment elsewhere returned to TEDC at roughly the same time. Apart from the fact that his temporary assignment had come to its natural and predetermined conclusion, there were business or operational reasons for S.Sgt. Paul to return to TEDC.

Disposition

112Having carefully considered all of the evidence, I find that the Employer’s treatment of S.Sgt. Paul was free from any unfairness, bad faith, or discrimination throughout his time at TSDC. Specifically, the Employer has provided a credible, non-discriminatory explanation for why S.Sgt Paul was not one of the successful candidates in the May 2017 competition for 3 permanent Staff Sergeant positions at TSDC. I also find that the reason S.Sgt. Paul was directed to return to TEDC at the end of his temporary assignment as Deputy Superintendent – Operations is equally free of any unfairness and bad faith, and entirely free of the taint of discrimination. As a result, there has been no breach of S.Sgt. Paul’s terms and conditions of employment.

113The complaint is dismissed.