A Toronto cop’s human rights complaint against multiple defendants, including the Toronto Police Services Board and the Toronto Police Association (TPA), is being allowed to proceed.
The TPA — the union representing officers — argued the complaint should be dealt with by way of a duty of fair representation (DFR) application before a labour tribunal rather than a human rights complaint with the Human Rights Tribunal of Ontario (HRTO).
It also argued that the allegations against the TPA were insufficient to ground a claim of discrimination, and that is should be dismissed as having no reasonable prospect of success.
Background
FZ, a first class constable and 13-year veteran of the Toronto Police Service, filed an application to the HRTO alleging discrimination and reprisal in her employment based on several grounds, including race, ethnic origin, creed, sex (including sexual harassment and pregnancy), and sexual solicitation or advances, as defined by the province’s Human Rights Code.
FZ, who identifies as Muslim, claims that during her tenure with the Toronto Police Service, she endured a hostile work environment characterized by sexual harassment, racist and Islamophobic comments from both colleagues and superiors, as well as a sexual assault.
Culture of racism and sexism
Moreover, her application alleges systemic discrimination within the Toronto Police Service, referring to a “culture of racism and sexism” and ineffective policies contributing to an ongoing pattern of misconduct by the service and its officers.
She asserts that her career has suffered due to her efforts to assert her rights under the Human Rights Code.
Claims against union
Additionally, FZ claims she faced discriminatory treatment from her union when seeking assistance with her grievances, including sexual harassment. She alleges that the TPA discouraged her from pursuing these complaints.
The application, filed in September 2018, outlines instances where the TPA allegedly failed to address the applicant’s complaints or grievances. The union responded to the application in November 2018, arguing that the application should be dismissed because it does not allege any Code violations by the TPA itself.
In response, the applicant submitted a reply in which she claimed that further incidents of discrimination occurred in March 2019. She asserted that her racialized status as a woman played a role in the TPA’s treatment of her complaints about sexism in the workplace. She contended that the TPA did not take her complaints seriously and instead perpetuated sexist messaging about tolerating workplace sexual harassment.
Preliminary hearing
A Case Assessment Direction in October 2019 directed a preliminary/summary hearing to determine whether the application should be dismissed due to delay or a lack of reasonable prospects for success.
This hearing was scheduled for April 2020 but was rescheduled due to the COVID-19 pandemic.
Ultimately, the hearing focused on whether the application should be dismissed against the TPA on jurisdictional grounds, specifically whether the allegations against the union fall outside the tribunal’s jurisdiction or should be dealt with through a duty of fair representation application under the labor relations regime applicable to Service members.
The key issues to be determined at this stage are whether the Tribunal has jurisdiction to hear the application against the Association and whether the allegations against the Association have any reasonable prospects of success.
The HRTO’s ruling
The HRTO noted that the Code does allow for claims of discrimination and harassment in a unionized environment.
The tribunal also emphasized the legislative intent to give it concurrent jurisdiction in such cases. It also rejected the argument that a duty of fair representation application would be more suitable, as the applicant’s allegations of discrimination against the TPA are rooted in her gender, race, and ethnicity, making them Code-related claims.
Furthermore, the tribunal found the applicant has provided sufficient factual support for her discrimination claims against the TPA. The allegations go beyond concerns about the quality of service and extend to systemic discrimination, where the TPA is alleged to have been complicit in the discrimination.
The HRTO emphasized that the summary hearing is not the stage to assess credibility or weigh evidence, and it is premature to dismiss the application on jurisdictional or prospect of success grounds.
The case should proceed to a merits hearing where evidence can be fully assessed, it ruled.
For more information, see Zarabi-Majd v. Toronto Police Services Board, 2023 HRTO 1314 (CanLII)
