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Trainor v. Prince Edward Island (Department of Transportation)

Report of the Board of Inquiry Between Jamie G. Trainor, complainant, and Government of Prince Edward Island, Department of Transportation, respondent

Prince Edward Island Board of Inquiry Under the Human Rights Act G.R. Foster

April 30, 1991
(45 paras.)


1      On June 18, 1986, Jamie G. Trainor ("Trainor") lodged a complaint with the Prince Edward Island Human Rights Commission (the "Commission") alleging that he was discriminated against on or about May 28, 1986, by the Department of Transportation - Government of Prince Edward Island (the "Province") in the matter of his employment because of his political belief and/or the political belief of those with whom he associated.  He alleges that his political belief at the relevant time was a belief in the tenets of the Progressive Conservative Party of Prince Edward Island, a political party then registered under section 24 of the Election Act, R.S.P.E.I. 1988, Cap.  E-1.

2      On January 26, 1990, the Human Rights Commission (the "Commission") advised the Minister of Transportation and Public Works for Prince Edward Island in writing that following an investigation by it the Commission was of the opinion that sufficient evidence existed to substantiate a prima facie case in the matter of Trainor's complaint.

3      On August 17, 1990, the Commission advised the Minister (the "Minister") responsible for the administration of the Human Rights Act (the "Act") in writing that it believed that all avenues of settlement had been exhausted and that one of the parties to the complaint had indicated that they were not prepared to attempt to effect settlement of the matter.

4      On September 7, 1990, this Board of Inquiry (the "Board") was appointed by the Minister to investigate and seek settlement of the complaint.

5      A public hearing was held by the Board into the complaint, which hearing commenced on February 15, 1991. Following the public hearing the Board ordered an extension of the evidence to assist it in reviewing the evidence and arriving at a decision.  The extension was completed on or about April 19, 1991.

6      It should be noted at the outset that all the parties to the hearing agree that the Prince Edward Island Human Rights Act is unique in its provisions dealing with discrimination relating to political belief and that the Board is deprived of any significant body of jurisprudence to guide it in this regard.

7      As examples, section 1(m) of the Act defines "political belief" as belief in the tenets of a political party that is at the relevant time registered under section 24 of the Prince Edward Island Election Act as evidenced by (1) membership of or contribution to that party, or (2) open and active participation in the affairs of that party; section 1(3) of the Act places the onus or burden of establishing an allegation of discrimination in relation to political belief upon the person making the allegation.  No similar provisions are to be found in the Human Rights Acts of the other provinces of Canada, and section 1(3) of the Act does not apply to any of the other heads or classes of prohibited acts of discrimination contained in the Act.

8      After a comprehensive review of the testimony given at the public hearing, together with a reconsideration of the arguments and authorities cited by counsel, the Board finds the following facts to be incapable of serious dispute:
 
1.

In 1982, at a time when members of the Progressive Conservative Party of Prince Edward Island formed this Province's Government, Trainor applied to the Department of Transportation and Public Works (the "Department") for employment as a labourer in that Department.

2.

Subsequent to filing his written application, Trainor's mother, Sheila Trainor, contacted one of the then Progressive Conservative Party members of the Legislative Assembly for the Electoral District of 5th Queens (the Electoral District in which the Trainor family resided at that time) seeking assistance from him in the hiring of her son by the Department.

3.

Shortly thereafter the Department hired Trainor as a labourer and he was classified by the Department as a "casual or temporary employee".

4.

The division of the Department to which Trainor was assigned was the bridge division (the "Division") which consisted of a supervisor or engineer, an operator of a mobile trailer truck (the "boom truck"), an assistant to the operator of the boom truck, and a number of labourers.

5.

At all relevant times, Hugh Robbins ("Robbins") was the bridge engineer of the Division, the operator of the boom truck was Roland Doucette ("Doucette"), and his assistant operator was Henry Woolridqe ("Woolridge"), all of whom were permanent employees of the Department and not casual or temporary employees.

6.

When Trainor was hired as a casual or temporary employee Woolridge was on sick leave from the Department and he never did return to his employment.

7.

Trainor, at the time of hiring, held a Class "I" drilling license and had prior experience in driving heavy equipment.

8.

Cyrus MacEachern ("MacEachern") was the supervisor of the Heavy Equipment Division of the Department, and as such one of his duties was to assign the boom truck and its operators to the Division. In 1982 he assigned Trainor to the boom truck as Doucette's assistant operator and Trainor was reclassified for purposes of pay from a labourer to an Operator I, but he remained in the classification of a casual or temporary employee.

9.

Following this promotion Trainor took a form of course or examination set by the Commercial Safety College in Truro, Nova Scotia, from which he received a form of certificate, resulting in his again being reclassified for purposes of pay from Operator I to Operator II, while still remaining a casual or temporary employee.

10.

Casual or temporary employees of the Division were hired as required by the Department or the Division and they were subject to being laid off at those times when their services were not so required.  The Department was under no obligation to rehire such employees after they were laid off.

11.

In April 1986 a provincial general election was held and the then government formed by members of the Progressive Conservative Party was defeated and replaced by a government formed by members of the Prince Edward Island Liberal Party.  Shortly thereafter Honourable Wayne Cheverie ("Cheverie"), who was elected in the Electoral District of 5th Queens, was appointed Minister of Justice and Attorney General, and Honourable Robert Morrissey ("Morrissey") was appointed Minister of Public Works and Transportation.

12.

From 1982 up to and including 1985, Trainor was the assistant operator of the boom truck within the Division, and was sufficiently competent to discharge his duties in that regard.

13.

Trainor had been laid off in the latter part of 1985, and in 1986, following the general election, he again submitted his application to the Department to be rehired by it but he received no response to the application from the Department.

14.

The boom truck is a large and complicated piece of heavy machinery requiring expertise or skill in its operation especially when being operated on the highway hauling long loads.

9      Hereafter the facts, in varying degrees, are in dispute.

10      According to the testimony of Trainor, his application of 1986 was processed, as in other years, by George Hood ("Hood"), a permanent employee of some 22 years service with the Department, whose duties included the hiring of the Department's or the Division's casual or temporary employees.  Trainor stated that in the Spring of 1986 he anticipated that he would receive word from Hood alerting him as to when he was to report to the Division for work in the 1986 season, that he did not hear from Hood and as a result in the latter part of May he went to the building which houses the Department and there learned that a Fred Currie ("Currie") had replaced him "as second operator of the bridge crew". Trainor's words were "someone was sitting in my chair".

11      Trainor further testified that on that occasion he spoke with Hood inquiring as to why he was not rehired as in previous years.  His testimony is as follows:
 

"He felt bad about it.  He told me, in confidence, I asked him why what had happened.  Mr. Hood then told me, in confidence, that he had received the list from Mr. Robbins and that at the time when it was to go through the applications and hire somebody for the position one of the M.L.A.s, Mr. Wayne Cheverie, was there and they were going through the applications; they had three piles: a "yes", "no" and "maybe" piles and that my application didn't make it past the bulldogs."

12      When asked by the Board if those were Hood's actual words, Trainor replied: "From what I recall", indicating to the Board a certain degree of uncertainty on the part of Trainor as to what was actually said by Hood on that occasion.

13      Trainor's evidence was that following the conversation with Hood, he telephoned Cheverie regarding the refusal of the Department to rehire him.  That conversation, according to Trainor, was in part as follows:
 

"I told him I had worked for the Department for the past four years, and the work that I did, and asked him if he had any knowledge as to why I wasn't rehired.  He said he had no knowledge of it and he did not see my application.

14      At this point in the conversation Trainor confesses "I guess I lost my cool a bit".  He then states that he confronted Cheverie with what he allegedly was told by Hood, as follows:
 

"He still denied it, and then I told him that Mr. Hood had told me the whole thing, and I don't know why you go on denying what I already knew.  He said, 'Well if you know that what are you calling me for then?'".

15      Trainor then testifies that Cheverie stated:
 

"Leave it with him and he would see what he could do about it ... that he would look into it."

16      Trainor called Hood as a witness on his behalf and when questioned as to what occurred when Trainor met with him after work started in the Department in 1986 Hood stated: "I told him he wouldn't be hired, and I told him we were putting someone else in his place."  Hood admits that he gave no further or other explanation to Trainor as to why he was not being rehired.  However, he did deny that he told Trainor that the failure of the Department to rehire him was because of political change or that he said to Trainor that his name "could not pass the bulldogs".

17      According to Hood he was the only person involved in the decision not to rehire Trainor, and that decision was made because MacEachern had advised him that he did not "feel comfortable" with Trainor "having the truck under this own command and hauling long loads".  Hood denied discussing with Cheverie, or with any other elected member of the Government, the replacing of Trainor with Currie as the assistant operator of the boom truck.

18      Hood's explanation as to the urgency to replace Trainor as the assistant operator of the boom truck was it was felt that Doucette was ready for retirement and "a backup man" was needed who could take Doucette's place when he retired. Hood stated that both he and MacEachern had interviewed Currie to assess his skills and that he determined that Currie would be the more suitable replacement for Doucette when the time came for Doucette to retire.

19      MacEachern was also called as a witness for Trainor and in his testimony he stated:
 

"... I was concerned with Rollie talking about retirement and I was concerned with a qualified operator to haul long steel and lumber behind that 7 ton truck.  To take over as first man should Rollie Doucette retire to handle the 7 ton truck.  Not so much the truck itself but the truck and trailer hauling long materials such as steel or lumber up to and including 70 feet long which makes a big load to send out in the country.  You're on the highway with traffic."

20      According to MacEachern he had spoken with Doucette about his concerns regarding Trainor's ability to be the operator of the boom truck and that "Rollie didn't really give me his full confidence that Jamie could take it on his own.  He left me in limbo or doubt".

21      Robbins, also called as a witness on behalf of Trainor, gave testimony that he had been the bridge engineer with the Department from 1966 until his retirement in 1988 and as such he would send a list to Hood as to the positions to be filled in the Division in the upcoming work season, and that he would also include the names of the persons who held those positions in the previous year.  He outlined to the Board Trainor's advancement in the Division from labourer to Operator II, and he corroborated Trainor's testimony to the effect that Trainor's name was on his list for rehiring when submitted to Hood in 1986, that Trainor was not rehired, and that Currie was hired by Hood to replace Trainor.  Robbins confirmed that MacEachern was the person responsible for heavy equipment in the Department and for the supervision of the operators of such equipment.  He also confirmed that he had discussions with Doucette as to Doucette's eventual retirement.

22      In respect to the skills required in the operation of the boom truck Robbins gives evidence as follows:
 
"Q.

And I take it when you start loading the truck with long material it would be a difficult truck to operate.

      A.   Yes, that's right."

23      Doucette was a further witness on Trainor's behalf who stated that he was responsible for the training of the assistant operators of the boom truck, and that he had trained both Trainor and Currie and found them to be of comparable talent.  He did not recall discussing his retirement plans with MacEachern or with any of his other co-workers.  His evidence was that he felt comfortable with Trainor driving the truck and operating the boom.

24      Doucette described operating the boom truck as "quite a responsibility if you're hauling a stick 80 feet behind you".  He agreed that MacEachern was the person ultimately responsible for all the trucks and their drivers in the Department.

25      Cheverie was also called as a witness on behalf of Trainor and when asked by Trainor's counsel if he recalled participating in the scrutiny of applications for casual employment in the Department prior to the commencement of the 1986 work season he replied "I absolutely and unequivocally did not participate".  When further asked if applications for employment in the Department were placed before him by Hood, and if he gave directions to Hood as to who were and who were not to be appointed, he replied "Absolutely not".  He denies instructing Hood either to hire Currie or not to hire Trainor.

26      Trainor's testimony as to the Province's failing to rehire him because of his political belief as defined in the Act can be summarized as follows:
 
(1)

He supported the Progressive Conservative Party at the time of the 1986 provincial election.

(2)

Although he was considered a competent Operator II he was not rehired following that election; and

(3)

Hood told him after that election that he was not rehired because of the participation of Cheverie in the selection process for casual or temporary employees and in the determination as to who would be hired.

27      The Board throughout the public hearing did its best to give the parties full opportunity to present evidence and make representations as required by the Act, and in so doing it permitted the parties to transgress the strict rules of evidence and to introduce considerable hearsay and circumstantial evidence, a practice honoured by most Human Rights Inquiry Boards.

28      The conversation above referred to which Trainor alleges he had with Hood in May 1986, is an example of such hearsay evidence.  In order for the Board to attach any weight to that evidence it requires some corroboration, even if only silence on the part of Hood.  But Hood, to the contrary, was called as a witness for Trainor, and while admitting to a conversation having taken place, states that it was confined to simply advising Trainor that he was not about to be rehired.  He denies telling Trainor of ministerial interference in the hiring process as does Cheverie.  No other evidence was presented as to Cheverie's, or any other member of Government's, involvement or participation in the selection process other than Morrissey's injunction to Hood that he only hire persons qualified to do the job.

29      It is, in the opinion of the Board, a penetrating glimpse into the obvious to note that in Prince Edward Island we are fiercely partisan in our party politics; as a result when an adherent to one political party is hired by the Province, when members of that party form the Government, and is not rehired, when members of another political party form the Government, suspicion of discrimination on the basis of political belief is excited.  That suspicion by itself does not justify a Board of Inquiry finding as a fact that such discrimination was practiced in fact by the Province.

30      This Board does find as a fact that as an Operator II Trainor performed his duties competently to such a degree that several of his senior co-workers had no hesitation in providing him with letters of recommendation after he was no longer employed with the Department.

31      Trainor called MacEachern as a witness on his behalf.  MacEachern was the permanent employee of the Department charged with the ultimate responsibility of insuring that when the Department's heavy machinery was operated on public highways it was safely operated.  That he had the skill, experience and authority to judge the skills level of the Department's operators was established without serious challenge.

32      MacEachern, like Trainor and Robbins, learned by some means that Doucette's decision to retire was imminent and MacEachern's concern, quite properly and responsibly, was directed to a suitable replacement for Doucette on the happening of that event.  According to his testimony when he gave consideration to Trainor as a future replacement for Doucette he did not feel comfortable with the prospect of Trainor hauling long loads on the boom truck on the highway. He discussed his concerns with Hood because Hood had the responsibility of hiring casual employees, of which Trainor had been one.  Hood, apparently deferring to MacEachern's judgment, made the decision to replace Trainor with Currie, whose skills were known both to MacEachern and Hood.

33      The conduct of Hood (and to a degree the conduct of MacEachern) at this point in the opinion of the Board, was reprehensible.  To summarily decide not to rehire Trainor, who had demonstrated for four years that he was a valued employee, without first giving him an opportunity or test to prove whether he had the required skills, or, at the very least, advising him at the earliest opportunity that he would not be rehired because of lack of those skills, appears to the Board to be a harsh, cruel, unconscionable act, so devoid of compassion that it demands censor.  However, the passing of judgment on the absence of good manners, decency or civility is not one of the terms of reference of the Board.

34      The Board has been asked to find that the evidence of Hood, MacEachern and Cheverie is in the nature of a recent fabrication, that is, that their evidence is a litany of lies and that they are dissembling hypocrites prepared to swear falsely as to the events leading to the replacement of Trainor by Currie.  The Board notes that Hood and MacEachern are both senior permanent employees of the Province whose positions are secure by reason of the Civil Service Act and not by the good will or pleasure of Ministers of the Government.  The only argument advanced as to why Hood and MacEachern would perjure themselves was that they "wanted to please their bosses".  The Board finds no compelling evidence that the character of these two men would lead them to such an extreme and finds this theory can be dismissed as fantasy.

35      For the Board to find that Cheverie swore falsely at the hearing it would be forced to give credence to the myth that all politicians have little or no regard for the truth, even under oath.  There is no doubt in the Board's mind that political life has its seamy side and that politicians make public promises without either the intention or the ability to fulfill them; but there is also no doubt in the Board's mind that this Province has been well served by many selfless, honest and dedicated politicians of both the political parties that have formed the various governments of the Province.

36      The Board is not prepared on the evidence presented to it to find that Cheverie would risk the possibility of being prosecuted for perjury, resulting in his public and political disgrace, and his possible disbarment from his profession, for the purpose of justifying the non-hiring of Trainor, or for any other purpose.

37      Therefore, the Board finds as a fact that Trainor was not rehired by the Department because of the concerns of MacEachern as to his skills in operating the boom truck should Doucette retire.  But, there is a body of law which is, simply stated, that if one of the factors in the decision not to rehire Trainor was his political belief as defined by the Act, then he is deemed to have been discriminated against because of such belief when the Department refused to rehire him.

38      Trainor testified touching his political belief in the Progressive Conservative Party and described himself as "a strong Tory".  He further stated that his father, a well-respected and affectionately remembered member of the legal profession, who died in 1975, actively shared this political belief as did his father before him.  The Board is of the opinion that this evidence is of little probative value in that, even in Prince Edward Island, families are no longer considered extensions of the father.

39      Trainor testified as to his political activities, which appear to the Board to have been confined to his quietly attempting to influence his close friends and neighbours (none of whom were called in corroboration) to support and vote for the Progressive Conservative Party.  Further, his evidence was to the effect that he concealed his political belief or conviction for fear that such a disclosure would endanger his employment with the Department.

40      He called as a witness Errol Monkley, the executive director of the Progressive Conservative Party of Prince Edward Island, who was unable to produce any record of any kind indicating that Trainor was active in the affairs of the Party, or that he was a member thereof, or that he had contributed to it.  Cheverie, Hood, MacEachern and Robbins denied any knowledge of Trainor's political belief or that of his family.

41      In the opinion of the Board, Trainor did not advance proof of his membership in the Progressive Conservative Party nor of his contribution thereto; nor did his evidence show that he demonstrated an unconcealed, overt, and active participation in the affairs of the Progressive Conservative Party; he simply made flat statements which were not supported by any independent witnesses, who ought to have been available to him if his statements had any merit.

42      It is the Board's opinion that Trainor is not entitled to that veil of protection against discrimination provided by section 6 of the Act because of his failure to establish his political belief as defined by section 1(m) of the Act.

43     The Board finds:
 
(i)

That Trainor has failed to establish his alleged belief in the tenets of the Progressive Conservative Party of Prince Edward Island at the relevant time, either by membership of or contribution to that party, or open and active participation in the affairs of that party, as required by section 1(m) of the Act; and/or, alternatively,

(ii)

That Trainor has failed to discharge the onus which was upon him by virtue of section 1(3) of the Act of establishing the allegation of discrimination in relation to Political belief by a preponderance of evidence.

44      Pursuant to section 26(4) of the Act the Board recommends to the Commission that the complaint herein of Jamie C. Trainor dated June 18, 1986, be dismissed.

45      The Board wishes to commend and thank the counsel for all of the parties for their tireless efforts on behalf of their clients and for their courtesy and help to the Board.
 
 

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