BOARD OF INQUIRY (Human Rights Code)
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 Francis Omoruyi-Odin dated December 21,1995, alleging discrimination in employment on the basis of race, colour, place or origin and ethnic origin.
B E T W E E N:
Frances Omoruyi-Odin
Complainant
- and -
Toronto District School Board; John Lister; Sharon Bate; and Susan Gorewich
Respondents
INTERIM DECISION
Adjudicator : Mary Anne McKellar
Board File No: BI-0354-00
Decision No : 00-019I
Board of Inquiry (Human Rights Code)
505 University Avenue
2nd Floor, Toronto ON M5G 2P3
Phone (416) 314-0004 Toll free 1-800-668-3946 Fax: (416) 314-8743
TTY: (416) 314-2379 TTY Tollfree: 1-800-424-1168
A P P E A R A N C E S
Ontario Human Rights Commission ) Anthony Griffin, Counsel
Francis Omoruyi-Odin, Complainant ) Andrew Pinto, Counsel
Toronto District School Board; John )
Lister;Sharon Bate; and Susan Gorewich ) Carole Hoglund, Counsel
INTRODUCTION
By Complaint dated May 20, 1995, the Complainant alleged that the Respondents discriminated against him in his employment contrary to the provisions of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”). The Commission referred the Complaint to the Board of Inquiry for hearing and named as Respondents the Scarborough Board of Education, Timothy Eaton Business and Technical School, John Lister, Susan Gorewich, and Sharon Bate. The Board assigned File Number BI-0354-00 to the Complaint. The May 20, 1995 Complaint will be referred to as “the Original Complaint”.
This is an interim decision in respect of two preliminary motions brought by the Complainant: a motion to amend the Original Complaint to add allegations of reprisal; and a motion to compel the Respondents to produce certain documents. Additionally, this decision deals with certain aspects of the case management of this proceeding.
CONSENT ORDERS
On consent of the parties, the Board amended the Original Complaint to name as a Respondent the Toronto District School Board, which has assumed the liability of the Scarborough Board of Education upon amalgamation. This Respondent will be referred to as “the School Board”.
On consent of the parties, the Board amended the Original Complaint to remove Timothy Eaton Business and Technical School as a Respondent on the grounds that it is a building and not a suable entity.
MOTION TO ADD ALLEGATIONS OF REPRISAL
By Complaint dated September 3, 1997, the Complainant alleged that the School Board and one of its Vice-Principals, David Freeman, had discriminated against him contrary to the Code by engaging in acts of reprisal for his filing the Original Complaint. The September 3, 1997 Complaint will be referred to as “the Reprisal Complaint”.
The Reprisal Complaint has not been referred to the Board. The Ontario Human Rights Commission (“the Commission”) rejected the School Board’s request for early dismissal of it, and by letter dated July 19, 2000, the Chief Commissioner advised the parties that it “should proceed through the normal course of processing”.
By his motion, the Complainant seeks to amend the Original Complaint to include the allegations set out in the Reprisal Complaint and to add David Freeman as a Respondent. The Commission consents to and supports this Motion. The Respondents do not oppose it.
Counsel for the Respondents to the Original Complaint advised that she also represents David Freeman. There was, consequently, no difficulty with the Board’s proceeding to hear argument on the motion in Mr. Freeman’s absence.
Where the Respondents do not oppose a motion to amend a complaint to add allegations of reprisal, and where no other circumstances exist which would prevent the Board from exercising its discretion to do so, the Board would normally allow the amendments sought by the Complainant. In the singular circumstances of this case, however, a question remains about the Board’s jurisdiction to allow such amendment. Counsel were unable to refer the Board to any other decision in which a complaint was amended to include reprisal allegations contained in a second formal complaint to the Commission, where the Commission had not referred that second complaint.
In the circumstances of this case, I am satisfied that the Board possesses the jurisdiction to make the order sought, and that it ought to exercise its discretion to do so. In reaching this determination, I have relied on the following factors:
The Commission itself consents to the amendment;
Absent the fact of the separate formal complaint containing the reprisal allegations, the amendment would be appropriate;
The Respondents do not object;
Commission counsel advised that the investigation of the Reprisal Complaint will not be undertaken so long as the Board amends the Original Complaint to include the allegations in it, thereby eliminating the possibility that the Board could amend to include allegations that the Commission subsequently decides not to refer;
In the event that the Commission does subsequently investigate the Reprisal Complaint and decide not to refer it, that decision will not necessarily be determinative of the Board’s jurisdiction to have dealt with it. See Payne v Ontario [2000] O.J. No. 1896, in which the Board’s jurisdiction to add a respondent under s. 39(2)(d) of the Code was held to encompass jurisdiction to add a respondent against whom the Commission had specifically determined not to refer a complaint.
I considered whether to make my order granting the amendment conditional upon the Complainant’s withdrawing the Reprisal Complaint, out of a concern for fairness to the Respondents, because should the reprisal allegations be dismissed by the Board, the Reprisal Complaint might still be revived and investigated by the Commission. Upon reflection, however, it appears to me that such condition is not necessary, given the extreme likelihood that any such behaviour on the Commission’s part could either be prohibited upon judicial review or would be res judicata before the Board.
The Original Complaint is amended to include the allegations contained in the Reprisal Complaint and to name David Freeman as a Respondent. The parties are directed to file their additional pleadings with respect to the reprisal issues in accordance with the timetable specified in Rules 35 to 37 of the Board’s Rules of Practice as if the release date of this decision were a conference call commencing a hearing.
MOTIONS FOR PRODUCTION
The Complainant seeks to have the Board order the Respondents to “complete its disclosure obligations” under the Board’s Rules of Practice by producing school yearbooks and any statistical data or other documents “that record or reflect the representation of racial minorities as employees of the Scarborough Board”. As well, the Complainant seeks to have the Board order the Respondents to produce documents pertaining to the qualifications of two other employees who worked in the same department as the Complainant and whom he alleges inappropriately received preferment into positions of added responsibility. The crux of the Original Complaint is the Respondent School Board’s refusal to place him in a position of added responsibility.
The Respondents took umbrage at the Complainant’s characterization of the disclosure issue, and of his bringing a motion to secure disclosure. The Respondents note that their disclosure obligations are set out in Rule 41 of the Board’s Rules of Practice, which require them to disclose to the other parties the documents that they will be relying on at the hearing and these documents do not fall within that class. Moreover, with respect to the October 17th request for yearbooks and the statistical data, Respondents’ counsel replied by letter of the same date, indicating that she was not sure the documents could be gathered in time to be provided along with the Rule 41 disclosure documents on October 20. On October 20, she further advised that the yearbooks were still being collected and that the statistical information requested did not appear to exist. Although these letters were sent more than two weeks prior to the filing of the Motion Record, the Complainant did not include them in it. To his credit, Commission counsel brought them to the Board’s attention.
In the circumstances, I agree with the Respondents that an order compelling production of these documents is premature and unnecessary. Indeed, at the hearing, counsel undertook to produce the yearbooks within one week, that is by November 16, 2000, and undertook to continue enquiring about the existence of the statistical documents and to produce them as soon as possible in the event that they showed up.
With respect to the requests for documents pertaining to the personnel files of Susan Gorewich and Alex Manikas, the Respondents took the position that the request was overbroad as such information could only be relevant to this proceeding to the extent that the Complainant and those individuals were ever involved in a head-to-head contest for the same position. Consequently, counsel argued, no such information about Susan Gorewich was subject to disclosure. She conceded that such information about Manikas was subject to disclosure, but again argued that an order compelling disclosure was premature as certain information had already been provided and she was undertaking to provide his certificate of qualifications and teacher evaluations.
The Complainant and Commission take the position that there are two aspects to the Complainant’s contention that he was denied positions of added responsibility in contravention of the Code. The first is that he possessed superior qualifications to those of the candidates selected for some such positions. The second is that, in any event, the School Board did not always demand that persons occupying such positions be qualified. It is the second prong of the Complainant’s attack on the School Board’s practices in filling such positions that makes germane to these proceedings the qualifications of Susan Gorewich for the positions she occupied. The Board agrees.
The Board does not agree, however, that the entire personnel file of Susan Gorewich and Alex Manikas are arguably relevant and finds that the Complainant’s request is overbroad in terms of both subject matter and the time period contemplated. Dealing first with the issue of time, the parties agreed that the relevant date for examining the qualifications of Manikas April, 1995 and the relevant date for examining Gorewich’s qualifications was April, 1993. Consequently, were I to order disclosure with respect to documents pertaining to either individual, the order would be limited to disclosure of all documents in their personnel files that pertain to their suitability for a position of added responsibility, including qualifications and evaluations, as of those specific dates.
I note that Respondent’s counsel has already indicated her willingness to provide disclosure with respect to the Manikas material, disputing only the scope of such disclosure. Now that she has the benefit of the Board’s comments, I am confident that she would be similarly willing to provide disclosure with respect to the Gorewich material. During the conference call scheduled for 9:00 a.m. on Wednesday, November 15, 2000, Respondents’ counsel will be expected to advise the Board if she is prepared to undertake to provide the documents pertaining to Gorewich and Manikas by November 30, 2000. If she is not prepared to provide that or a similar undertaking, the Complainant and Commission may revisit their request for an order.
OUTSTANDING MATTERS
A conference call in this matter has been scheduled for Wednesday, November 15, 2000 commencing at 9:00 a.m. At that time, the Board expects that the parties will be prepared to address the following issues:
The scheduling of a further Case Management Pre-Hearing in this matter following the close of pleadings with respect to the reprisal allegations;
The issue of whether the issues at stake in this hearing or the anticipated remedies might implicate the interests any bargaining agent or anyone else not already named as a respondent;
The issue raised by the Commission in its pleadings with respect to the removal of certain individuals as parties respondent to the complaint;
The anticipated length of the hearing;
The identification, to the extent possible, of the witnesses each party intends to call, including particularly any expert witnesses, and the timetable for the exchange of witness statements/expert reports; and
Any other matters raised by the parties.
Dated at Toronto, Ontario this 14th day of November, 2000.
“Mary Anne McKellar”
Mary Anne McKellar, Vice Chair