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BOARD OF INQUIRY {Human Rights Code) Ontario IN THE MATTER OF the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended; AND IN THE MATTER OF the complaint by Jhalman Gosal dated March 2, 1993 alleging discrimination in reprisal only on the basis of employment/race, creed, colour, reprisal by Ministry of Correctional Services. BETWEEN: Ontario Human Rights Commission - and - Jhalman Gosal Complainant - and - RECEIVED Ministry of Correctional Services LIBRARY Metro West Detention Centre David Parker JUN 1 8 1996 Mary Capobianco P1a50TiOERGOLNITNOT,.ON.QNA^TV.EhAEdP6T1EH8,F)qm RG.aDi.l PShoillolimposnon Respondents DECISION Adjudicator Jeffry A. House : Date June 17, 1996 : Board File No: BI-0026-94 Decision No 96-019 : Board ofInquiry (Human Rights Code) 150 EglintonAvenue East 5th Floor, Toronto ON M4P 1E8 Phone (416) 314-0004 Fax: (416) 314-8743 Toll free 1-800-668-3946 O:£I\94\0026-94\COVER.DEC 0k ' + Digitized by the Internet Archive 2014 in https://archive.org/details/boi96_019 APPEARANCES ) Ontario Human Rights Commission Peter Abrahams, Counsel ) ) ) Jhalman Gosal ) On his own behalf ) Ministry ofCorrectional Services Metro West Detention Centre Davis Parker Jane Hooey Mary Capobianco Gail Solomon R.D. Phillipson O:\BI\94'0026-94\GOSALDEC BACKGROUND On December 12, 1994, I was appointed by the Minister ofCitizenship to inquire into a complaint made under the Human Rights Code, R.S.O. 1990, c. H-19, as amended. The complaint was made on March 2nd, 1993 by Jhalman Gosal against The Queen in Right of Ontario, The Ministry of Correctional Services, the Metro West Detention Centre, and certain named persons, all ofwhom are alleged to have made decisions with respect to an application for promotion in employment made by Mr. Gosal. The complainant was unrepresented. Mr. Peter Abraham, Barrister and Solicitor, represented the Ontario Human Rights Commission. All the respondents were represented by Ms. Jane Hooey, Barrister and Solicitor. PRELIMINARY MOTIONS Prior to the commencement ofthe hearing, Ms. Hooey filed a motion requesting me to remove one of the named respondents, Loretta Eley, and add another, R.D. Phillipson. The affidavit material provided with the motion established that Ms. Eley became Superintendent ofthe West Detention Centre after the events complained ofhad already transpired. Mr. Phillipson headed the facility at all times which were relevant to the complaint. On that basis, and with the concurrence ofcounsel for the Human Rights Commission, Mr. Phillipson's name was added, and Ms. Eley's deleted from the list ofnamed Respondents. THE ISSUES The questionI am to answeris a limited one. Although Mr. Gosal, the complainant had alleged that the respondents had discriminated on the basis ofrace, creed and colour, that aspect ofthe complaint was not proceeded with by the Commission, on the basis that there was insufficient evidence of discrimination, and that a person who had more qualifications than the complainant had been awarded the position, (see Ex. 2). However, the Commission did proceed with the allegation that a reprisal had been made against Mr. Gosal. The allegation, which is set out in the attachment to Ex. 1, was thatMr. Gosal suffered a reprisal, specificallythat after having been selected for an oral interview for the position of Coordinator, Maintenance Services, Mr. Gosal was removed from the list of candidates so selected because he had made a previous Human Rights complaint. The question I am to answer, therefore, is: "Did the complainant suffer a reprisal as a result ofthe fact that he had made a previous Human Rights complaint?" THE LAW The statutory provisions most relevant to the issue before me are set out is ss. 8 and 9 ofThe Human Rights Code, R.S.O. 1990, c. H-19 as amended. The provisions read as follows: s. 8 very person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act, and to refuse to infringe aright ofanother person under this Act, without reprisal or threat of reprisal for so doing. s. 9 No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part. THE BURDEN OF PROOF The burden ofproofin aHuman Rights case involving an allegation ofdiscrimination on a prohibited ground is that set out in Basi v. Canadian NationalRailway Co. (1988) 9 C.H. R.R. D\5029 at par. 38474. The complainants must establish a prima facie case ofreprisal. Ifaprimafacie case is made out, then the burden then shifts to the respondents to provide a reasonable explanation for the behaviour complained of. Once an explanation has been provided, the eventual burden rests on the complainant to show that the explanation provided is a pretext, and that the behaviour complained • ofoccurred in whole or part due to a decision to make a reprisal against a person who had made a Human Rights complaint. THE COMPLAINT The complaint alleges that Mr. Jhalman Gosal, a long-time electrician at the Metro West Detention Centre, applied for a position as Coordinator ofMaintenance Services at that location, which is a maximum security correctional facility. The complaint also alleges that Mr. Gosal was informed that he was short-listed for this position, but that subsequently, he was never called to an interview. Mr. Gosal alleges in his complaint that the reason he never had the interview to which he believed he was entitled was because ofhis "race, colour, and religion," and secondly because he had made previous Human Rights complaints. As indicated, the Commission proceeded only with the second ofthese allegations. RESPONDENT'S POSITION The respondents denied the allegation. It was their position that Mr. Gosal has not been selected as a finalist for the position ofMaintenance Co-ordinator, and had never been told that he qualified for an interview. Thus, he was never entitled to an interview, and had not suffered reprisal in not being interviewed for the position. THE CASE FOR THE COMPLAINANT The Commission presented its case through two witnesses, Mr. Jhalman Gosal and Ms. Anita Fox.