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When decision-makers disagree, and what we’ve learned from this

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In the summer of 2020, there was an incident involving a City of Toronto Municipal Standards Officer, Michael Rushton, and two Black women, Eva Amo-Mensah and Deborah Ampong (the “complainants”). The complainants alleged that they were racially profiled by Mr. Rushton when he saw them exercising at Centennial Park Stadium at a time when the Stadium was closed to the public due to COVID-19 measures.  The complainants recorded parts of the interaction and posted the videos on social media. As a result, this was a story that I and many others around the GTA took interest in, especially as it followed less than a month after the murder of George Floyd and, fairly or not, parallels were being drawn between the incidents over social and local media outlets.1

The City of Toronto (the “City”) immediately responded to the incident by hiring a third-party investigator, who ultimately concluded that race was a factor in Mr. Rushton’s actions, and that he violated the City’s Human Rights and Anti-Harassment/Discrimination Policy (“HRAP”), the Ontario Human Rights Code, and the City’s Public Service By-Law.  As a result, the City terminated Mr. Rushton’s employment. Mr. Rushton’s union, the Canadian Union of Public Employees, Local 79, challenged the dismissal which went to arbitration.

On June 8, 2022, following a lengthy hearing, an arbitrator concluded that, while the City had met its onus of establishing that there was just cause for discipline, he was unable to find that the Mr. Rushton’s misconduct was racially motivated, and therefore, Mr. Rushton’s termination of employment was substituted for a 30-day suspension and he was reinstated in his role and compensated for lost wages. Although we do not have access to the investigator’s report, a review of the arbitration decision highlights some of the challenges we face when assessing the sufficiency of evidence in complaints of racial discrimination.

Facts of the case

The incident occurred just over two years ago on June 16, 2020, in the parking lot of Centennial Park in Etobicoke, Ontario. The complainants alleged that, as they were exiting the stadium, Mr. Rushton:

  1. Commented to them that they were trespassing and suggested that in some contexts this would permit him to shoot them.
  2. Asked for their identification, but not the identification of two non-Black soccer players who were exiting at approximately the same time.
  3. Attempted to record their license plate number after telling them they were free to go.

Mr. Rushton denied all the allegations. He testified that after he arrived at Centennial Park, he pulled his vehicle up to the gate where he saw two teenaged soccer players climbing over the gate to exit the stadium. According to Mr. Rushton, he asked the two teenaged soccer players what they were doing, and made the “trespass and shoot” comment to them. He said that he also requested their identification. At this moment, the two complainants were also climbing over the fence to exit, and one of the complainants, Ms. Amo-Mensah, asked him why he wanted their identification. Mr. Rushton said he then pivoted and told the complainants that they were trespassing, and he asked if they had a permit. He said that the other complainant, Ms. Ampong, then asked him how he could threaten to shoot them and require only the complainants (and not the two teenaged soccer players) to provide identification. Mr. Rushton said that he assumed all four people were together and that he was addressing them all. He said that he also assumed they were all leaving in the same vehicle together and so he took out his phone to record their license plate number.

Regarding the “trespass and shoot” comment, Mr. Rushton identified a coworker who could corroborate that he had used the “trespass and shoot” comment in the past. This co-worker confirmed that Mr. Rushton had said this to a group of teens who were playing soccer. The co-worker noted that the teens were Asian.

Analysis and findings

The arbitrator ultimately found that the comment and actions of Mr. Rushton, while inappropriate, were not racially motivated. I’ve highlighted below several key elements of his analysis.

First, the arbitrator generally found the complainants and the respondent to be credible. While there were inconsistencies between the witness statements and both of the parties’ evidence, the arbitrator dismissed them as minor and inconsequential. The arbitrator also noted that Mr. Rushton appeared evasive by persistently asking counsel for clarification of his questions, but he dismissed this as someone who appreciated the consequences of an imprecise answer and therefore insisted on precision.

Second, he accepted that the “trespass and shoot” comment had been made toward the racialized teens playing soccer in the past, but concluded that it did not mean Mr. Rushton only said it to racialized individuals. He wrote, “The only conclusion I can draw from the June 12 incident is that it is one example where the grievor made the comment to a group of teenagers.” Ultimately, he did not give it more weight than that.

Third, the non-Black teens present on June 16, 2020, could not be located, and the arbitrator did not rely on any of their comments, including comments heard clearly in the video, as they were hearsay and unreliable.

Fourth, the arbitrator found the “trespass and shoot” comment was made to the complainants and the teenaged soccer players, together, based on inconsistencies in the complainant’s evidence, the issues with the reliability of the complainant’s ability to see whom he was speaking to (Mr. Rushton was wearing sunglasses which covered his eyes), and seemingly, Mr. Rushton’s previous use of the “trespass and shoot” phrase with a group of teenagers.  Given this, the arbitrator concluded that the comment was inappropriate but not racially motivated.

Fifth, the arbitrator could not conclude that Mr. Rushton only asked the complainants for their identification and, therefore, could not conclude that his actions were racially motivated.

Sixth, while Mr. Rushton’s attempts to capture the license plate number of the complainants was found to be antagonizing; the arbitrator found that there was an absence of racist comments or gestures, and so concluded that it was plausible his comments were not directed solely at the complainants (the soccer players were possibly leaving with the complainants, as they had no car). This left the arbitrator unable to conclude that Mr. Rushton’s attempts to document the complainants license plate number was racially motivated.

Based on the above, the arbitrator concluded that Mr. Rushton behaved inappropriately, but that race was not a factor in his behaviour.

Key Takeaways:

Having recently read my colleague Tola Olupona’s latest blog post on critical race theory, as well as a recent arbitration decision2 in which the arbitrator took an intersectional perspective in their analysis, I found myself struggling to understand aspects of the arbitrator’s decision in this case.

First, the arbitrator wrote:

Racism is a prevalent issue in Canada.  I accept the complainants’ straightforward comments:  Racism exists in Canada, people need to be aware of it.  I further observe that racism is not always obvious and can be difficult to detect.  As argued by the City, some instances of racism are microaggressions, whereby there are subtle expressions of prejudice towards a minority group.  Instances of overt racism, such as racist remarks or gestures are less common and more easily detectable.  The hidden racism that remains prevalent in our society requires the same level of heightened awareness, close scrutiny and serious repudiation.3

Given this, it was unclear why the arbitrator noted an absence of racialized comments or gestures made towards the complainants during Mr. Rushton’s attempt to document their license plate. Such comments or gestures are typically absent in cases where carding takes place, and they are not required for discrimination to be found. Conversely, the context for his attempts to record their license plate, specifically after they accused him of racial profiling, was not expressly considered. He noted it was a heated exchange, but he did not specifically address why it was heated.

Second, I found it difficult to understand the way in which the arbitrator relied on the previous incident in which Mr. Rushton made a “trespass and shoot” comment to a group of racialized teens playing soccer, an incident put forward by Mr. Rushton and not factually in dispute. The arbitrator seemed to rely on the incident as an example of the comment being directed at teens, but not as an example of the comment being made towards racialized individuals.

Third, I note that the arbitrator adopted the phrase “racially motivated” in his analysis, as opposed to the wording in the test for discrimination in Pieters, which asks whether race was a factor in the treatment. While the distinction made is slight, conflating the two may open the door to errors in analysis, highlighting the importance of consistent phraseology.

Ultimately, it is difficult to be critical of the arbitrator’s analysis given how challenging these cases can be, and without access to all the evidence presented to him. An inference may be drawn by one person that may not be drawn by another, even when presented with identical facts. That said, I did find myself wondering if I would have come to the same conclusion as the arbitrator on the basis of the facts as he described them. There is no doubt that both lived AND learned experience play a role in shaping how we receive, review, and weigh the evidence presented to us during an investigation. A takeaway from this decision, then, is how important it is for all of us to continually learn, listen, self-reflect, and evolve so that we may keep our senses heightened and the level of our scrutiny high; as the arbitrator himself wrote, this is necessary to address subtle forms of racism.

1 “City investigating interaction between bylaw officer, Black women at Centennial Park,” June 17, 2020, CBC News, online: https://www.cbc.ca/news/canada/toronto/centennial-park-by-law-officer-black-women-1.5615333; Irelyne Lavery, “Two Black women allege racial profiling by Toronto bylaw officer,” Daily Hive, June 17, 2020, online: https://dailyhive.com/toronto/racial-profilling-toronto-bylaw-officer; David Rider, “Allegation that Toronto bylaw officer racially profiled two Black women sparks investigation,” June 17, 2020, The Toronto Star, online: https://www.thestar.com/news/gta/2020/06/17/city-of-toronto-investigating-allegation-that-bylaw-officer-racially-profiled-two-black-women.html; Ryan Rocca and Erica Vella, “Women allege Toronto bylaw officer racially profiled them: ‘I was kind of shocked’,” June 16, 2020, Global News, online: https://globalnews.ca/news/7074509/toronto-bylaw-officer-racism-allegations/

2 Public Service Alliance of Canada v. Canadian Union of Labour Employees, 2021 CanLII 101144 (ON LA).

3 Toronto (City) v Canadian Union of Public Employees, Local 79, 2022 CanLII 49308 (ON LA).

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