Behaviour was 'reprehensible' but not racist: arbitrator
A Toronto municipal worker’s treatment of people who were breaking COVID-19 restrictions in a park was “reprehensible” but not racially motivated, the Ontario Divisional Court has ruled.
The worker was a municipal standards officer for the City of Toronto. On June 16, 2020, he was patrolling city parks while restrictions related to the COVID-19 pandemic were place that closed the parks to the public.
The worker encountered two Black women exercising in a park and two teenaged soccer players, all who had entered the park through an open gate. The worker tried to confront other people leaving through the gate and then drove to a closed gate, where the women and the soccer players were climbing over.
Afterwards, the two Black women filed a complaint with the city alleging that the worker told them that they could be shot for trespassing and demanded to see their identification. They said that he didn’t ask to see the identification of the soccer players, who were white. The worker then told the women that they were “free to go,” but he tried to record their license plate number.
External investigation
An external investigator looked into the matter and determined that the worker’s conduct towards the women violated the Ontario Human Rights Code and the city’s Human Rights and Anti-Harassment/Discrimination policy, as well as failing to serve the public under the values set out in the city’s public service by-law.
The city terminated the worker’s employment, alleging that the worker singled out the Black women and treated them differently than the soccer players, acting in a racially motivated manner. The union filed a grievance.
An arbitrator found that the worker’s behaviour warranted discipline, but the worker’s misconduct was not racially motivated. The arbitrator also disagreed with the city that the worker singled out the women for adverse treatment and therefore the worker didn’t discriminate against them.
The arbitrator noted that the evidence showed that the worker made the “trespass and shoot” comment in the presence of the women and the soccer players and he was wearing sunglasses so it wasn’t clear at whom he was looking. In addition, the women were climbing over a fence when the worker spoke, so they may not have been able to assess where the comment was directed, said the arbitrator.
No differential treatment
The arbitrator also believed the worker’s statement that he made the comment at a group of teenagers another time and asked the soccer players for identification as well – something the worker described as a “reflex” and was plausible under the circumstances, said the arbitrator, noting that the women may have thought that the worker only asked for their identification, but all the witnesses had a slightly different version of events.
While the evidence indicated that the worker tried to record the women’s license plate number, the soccer players didn’t have a car at the park, so that couldn’t be considered differential adverse treatment, the arbitrator said.
The arbitrator noted that the incident happened shortly after the murder of George Floyd in the US, there was a “heightened awareness to racist behaviour by law enforcement,” and the women sincerely believed that the worker targeted them because of their race. However, the arbitrator found that the evidence did not support the argument that the worker treated them differently from the soccer players and singled them out for adverse treatment.
The city was ordered to reinstate the worker with a 30-day suspension on his record for misconduct that was “reprehensible” but not racially motivated.
Appeal failed
The city applied for judicial review of the decision, arguing that the arbitrator erred in requiring proof of racial motivation and the award lacked transparency or justification on how he reached the decision.
The court noted that the issue was not whether there had been discrimination, but rather whether the city had just cause to discipline the worker.
The court found that it was reasonable for the arbitrator to find that there was no racially motivated adverse treatment of the women based on the evidence.
The court also disagreed with the city’s contention that the arbitrator’s award lacked transparency or justification. The arbitrator was clear in the decision that he considered the versions of events from the women, the worker, and the soccer players in reaching his conclusion, which was within the range of reasonable outcomes.
The city’s application for judicial review was dismissed. See City of Toronto v. Canadian Union of Public Employees, 2023 ONSC 2122.