Persaud v. Toronto District School Board, 2008 HRTO 25

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrew Persaud

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Toronto District School Board, Anthony Masciello,

Harry Rosen, Paul Corner, Roy Evely,

and Suzana Greenaway

Respondents

INTERIM DECISION

Adjudicator: Mark Hart

Date: May 1, 2008

Citation: 2008 HRTO 25

Indexed as: Persaud v. Toronto District School Board

Human Rights Tribunal of Ontario

400 University Avenue, 7^th^ Floor

Toronto ON M7A 1T7

Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946

TTY (416) 314-2379 / 1-800-424-1168

E-mail hrto.registrar@jontario.ca

Website www.hrto.ca

APPEARANCES

Andrew Persaud , Complainant ) Roger Rowe and

) Tamara Joseph, Counsel

Toronto District School Board, Anthony Masciello, ) John Bell and

Harry Rosen, Paul Corner, Roy Evely, ) Sheila MacKinnon, Counsel

and Suzana Greenaway, Respondents )

Ontario Human Rights Commission ) Prabhu Rajan, Counsel

Introduction

1This Interim Decision deals with the following issues: consolidation of the main complaint in this matter (HR-1274-07) with the reprisal complaint (HR-1433-07); bifurcation of the hearing; and the Commission’s and complainant’s alleged non-compliance with the Tribunal’s order dated February 18, 2008. This interim decision will also address certain case management issues relating to the hearing in these matters.

CONSOLIDATION

a) The Commission’s power under section 32(3) of the Code

2The main complaint in this matter was filed on October 10, 2005 and alleges discrimination on the basis of race and colour in relation to the complainant’s treatment at and eventual suspension from Vaughan Road Academy and transfer to another school in the respondent School Board. The main complaint was referred by the Commission to the Tribunal by letter dated April 30, 2007 and has been the subject of two previous interim decisions dated November 8, 2007 and February 15, 2008.

3The reprisal complaint was filed on August 28, 2006 and alleges that the complainant was subjected to reprisal in relation to two incidents that occurred at his new school, Oakwood Collegiate Institute, which also belongs to the respondent School Board. The reprisal complaint originally named three personal respondents, but the complaint has now been discontinued as against these three individuals such that the only remaining respondent to the reprisal complaint is the respondent School Board.

4By letter dated February 14, 2008, the Commission referred the reprisal complaint to the Tribunal. In this letter, the Commission states that it has combined the reprisal complaint with the main complaint pursuant to section 32(3) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). No such statement was made when the main complaint was referred to the Tribunal some nine and a half months previously.

5It is the Commission's principal position that it has the jurisdiction to combine the reprisal complaint with the main complaint on the basis of section 32(3) of the Code, and that there is nothing in the Code that prevents the Commission from combining the two complaints. In particular, the Commission notes that there is nothing in section 32(3) of the Code that limits it from combining a newly referred case with a case already before the Tribunal. It is also the Commission’s position that it is not proper for the Tribunal to question the Commission's jurisdiction, and that this a matter for the Divisional Court on an application for judicial review.

6In response, the respondents state that where one of the complaints sought by the Commission to be combined has already been referred to the Tribunal, the Commission has no authority to direct that a second complaint be combined with it. The respondents rely upon the decision of the Ontario Court of Appeal in McKenzie Forest Products Inc. v. Ontario (2000), 2000 CanLII 5702 (ON CA), 48 O.R. (3d) 150, in which the court states at page 8:

once the Commission exercises its discretion to refer a complaint to the Board of Inquiry, the role of the Commission fundamentally changes. It no longer acts as an investigative and screening body, but becomes a part of the proceeding. At this point, the determination of the complaint then becomes the responsibility of the Board of Inquiry.

7The respondents further state that the question is not whether it is the Tribunal or the Divisional Court that has jurisdiction to undo something the Commission has allegedly done; rather, the question is whether the Commission has the authority to bind the Tribunal in the control of the Tribunal’s own process. The respondents observe that it is not the Tribunal that seeks to interfere with the Commission’s jurisdiction; rather it is the Commission that is seeking to interfere with the Tribunal’s jurisdiction. The respondents’ position is that the Tribunal has jurisdiction to control its own process, and the Commission does not have the authority to dictate to the Tribunal how it should exercise its own jurisdiction. Given that the main complaint was referred to the Tribunal before the Commission sought to combine it with the reprisal complaint, the respondents submit that the Commission had no jurisdiction or authority to direct that the complaints be combined.

8Section 32(3) of the Code provides as follows:

Where two or more complaints,

(a) bring into question a practice of infringement engaged in by the same person; or

(b) have questions of law or fact in common,

the Commission may combine the complaints and deal with them in the same proceeding.

9While on its face, this provision does not appear to prevent the Commission from combining a complaint in its process with a complaint which already has been referred to the Tribunal, the respondents are most certainly correct that this provision must be interpreted in light of the entire statutory scheme and particularly in light of the shift in the Commission’s role from the stage when it is dealing with a complaint in its own process and after it has referred a complaint to the Tribunal when it becomes a party to the proceeding with carriage of the complaint.

10The statutory scheme of the Code affords the Commission with an array of powers that it can exercise when a complaint is in its process prior to referral to the Tribunal, including: the power to investigate and utilize a broad range of investigative powers (s. 33); the power not to deal with a complaint on a variety of grounds (s. 34); the power to decide whether to refer a complaint to the Tribunal for a hearing (s. 36). These powers include the power to combine complaints under s. 32(3) of the Code. But, as with the Commission’s other powers while a complaint remains in its process, these powers do not continue once a complaint has been referred to the Tribunal.

11For example, once a complaint has been referred to the Tribunal, the Commission no longer has the power not to deal with that complaint under s. 34 on the ground that it is trivial, frivolous, vexatious or was made in bad faith, even if the Commission reaches that conclusion following referral of the complaint to the Tribunal. By that point, the Commission’s powers under s. 34 have been extinguished, and the Commission is simply a party to the Tribunal proceeding from which it has the discretion to withdraw if it comes to believe that the complaint no longer has merit.

12Similarly, once a complaint has been referred by the Commission to the Tribunal, the Commission’s power to combine that complaint with a complaint still in its own process (or indeed with another complaint already referred to the Tribunal) is extinguished, and the Commission as a party to the proceeding before the Tribunal has the ability to request that the Tribunal consolidate that proceeding with another proceeding before the Tribunal pursuant to the Tribunal’s Rules. This is not in any way an interference with the Commission’s jurisdiction, as the Commission has no “jurisdiction” over a complaint once it has been referred to the Tribunal.

13Accordingly, I find that the Commission did not have the authority to combine the reprisal complaint with the main complaint that already had been referred to the Tribunal.

b) The Tribunal’s power to consolidate pursuant to Rule 14(d)

14Pursuant to Rule 14(d), the Tribunal has the power to consolidate or hear cases together.

15I adopt from the decision of the Canadian Human Rights Tribunal in Lattey v. Canadian Pacific Railway 2002 CanLII 45928, the following factors that should be considered in the context of whether to consolidate or hear two proceedings together:

1. The public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results;

2. The potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and

3. Whether there are common issues of fact or law.

16It is clear in this case that there are common issues of fact and law involved in the two proceedings. While the events alleged in the reprisal complaint occurred at a different school, the complainant’s evidence pertaining to the events at issue in the main complaint provide a basis and context for the events at issue in the reprisal complaint. Further, the respondents themselves have indicated in the main complaint an intention to raise the events at issue in the reprisal complaint as going to the complainant’s good character and propriety of conduct (see Respondents’ Hearing Brief, para. 86). In addition, it is in the public interest to avoid the repetition of evidence that would be required if these matters were heard separately.

17This leaves the issue of the prejudice to the respondents. On behalf of the personal respondents to the main complaint, concern is expressed that, were these two proceedings consolidated or heard together, they potentially would be exposed to personal liability in relation to the events at issue in the reprisal complaint. In response, the Commission submits that there is a distinction between “joinder” and “consolidation”, and that the personal respondents’ fear would only be realized were the two proceedings “joined”, but not if they were merely “consolidated”. On the pre-hearing conference call, counsel for the respondents stated that he could find no authorities that conclusively support such a proposition. I note that the cases cited by the Commission do not support this proposition.

18In any event, I can resolve this concern quite simply by clarifying that, while the main complaint and the reprisal complaint shall be consolidated and heard together in one proceeding, the personal respondents to the main complaint shall not be found personally liable in relation to the events at issue in the reprisal complaint, and more particularly in relation to the matters set out in the Commission’s hearing brief at paras. 76 and 77.

BIFURCATION OF THE HEARING

19Pursuant to Rule 14(g) of the Tribunal’s Rules of Practice, the Tribunal has the power to determine and direct the order in which issues in a proceeding will be considered and determined. Pursuant to Rule 69(d), this is a matter that may be addressed at a pre-hearing conference.

20In the notice of the pre-hearing conference call which was sent to the parties on February 27, 2008, the parties were asked to be prepared to make submissions regarding the potential bifurcation of the hearing to first hear and determine all issues of liability, and then hear and determine all issues relating to remedy or costs as the case may be.

21On the pre-hearing conference call, the Commission stated that it was not opposed to bifurcation if it would expedite the hearing, the complainant’s position was that it was not necessary to bifurcate, while the respondents opposed bifurcation. The respondents opposed bifurcation on the basis that witnesses for both sides who had testified on the issue of liability would need to be re-called to testify on the issue of remedies.

22I am aware that some witnesses might need to be re-called if this hearing is bifurcated. At a minimum, the complainant would need to be re-called to provide evidence as to the impact of any discrimination that may have been found in the first part of the hearing, including any evidence in support of his claim for special damages. In addition, some of the respondents’ witnesses who testified on the issue of liability may also need to be re-called to address the Commission’s claim for public interest remedies.

23At the same time, in my view, bifurcating the hearing in this case would result in expediting the hearing on liability in the following ways: by significantly reducing the scope of the complainant’s evidence, as it would be focused on the events at issue rather than on the impact of these events; by obviating the need for medical evidence at this stage of the proceeding, which is hotly contested between the parties; by avoiding the need to hear any evidence regarding the public interest remedies unless and until a finding on liability is made, which might also assist in delineating the proper scope of any such remedies; by avoiding the need to hear any evidence at all on the issue of remedies if no liability under the Code is found.

24Having weighed all of these factors and having carefully considered the parties’ submissions, it is my view that it is preferable and more expeditious to bifurcate the hearing, and I so order.

FURTHER CASE MANAGEMENT DIRECTIONS

25My objective in providing the directions contained in my earlier interim orders was to assist the parties to meet the Tribunal’s goal of a fair, just and expeditious proceeding. As much as possible I want the parties to know their respective cases before we get in the hearing room because, as we all are aware and perhaps have experienced, unless these issues are sorted out in advance the hearing quickly unravels into requests for additional days and multiple adjournments. As it is, the parties estimate this hearing will require 62.5 days to complete. Clearly, this proceeding requires very careful and precise case management.

26To this end, while I understand the respondents’ concerns with the Commission’s hearing brief, I am satisfied that, with the exceptions noted below, the Commission has largely complied with the intention of my direction. For greater certainty I set out my analysis of the pleadings below.

27The following categories of conduct appear to be alleged by the Commission and the complainant to constitute discrimination on the basis of the complainant’s race and colour in violation of the Code:

1. It is alleged that the respondent Greenaway failed to obtain, consider and investigate all possible explanations and instead improperly rushed to judgment regarding the complainant’s culpability (see paras. 33, 34, 36, 39, 40, 41, 42, 45, 46, 47, 48, 49, 50, 51, 52, 54, 55, 56, 57 and 65);

2. It is alleged that the respondent Greenaway evinced a tendency to conclude that the complainant had acted dishonestly and sometimes maliciously (see paras. 34, 36, 39, 40, 41, 42, 45, 46, 47, 48, 49, 50, 51, 52, 54, 56 and 57);

3. It is alleged that the respondents permitted suspicions about the complainant to pervade the school causing the environment to be poisoned for him (paras. 49, 50, 51, 52, 54, 56, 57), and that other behaviour by some of the personal respondents caused the environment to be further poisoned for the complainant (paras. 55, 67, 68 and 75);

4. It is alleged in various ways that the complainant was treated differently than white students or teachers (see paras. 32, 33, 42, 43, 45, 46, 47, 48, 49, 54, 55, 57, 73);

5. It is alleged in various ways that the complainant was subjected to unfair investigative processes, that include being unfairly interrogated in relation to his brother’s possession of the master key (para. 20), having a formal process commenced against him without first being spoken to and that began with an assumption of his guilt (para. 48), being subjected to an unfair investigation that was simply a means to an end (paras. 58, 59, 61, 62, 63, 68 and 69) and being punished without being given an opportunity to provide his version of events (para. 66);

6. It is alleged that the respondent Greenaway made wholly inappropriate and unseemly comments about the complainant and assumed his guilt (para. 39) and indiscreetly and publicly reprimanded the complainant (para. 45);

7. It is alleged in various ways that the respondent Greenaway was suspicious of the complainant, which include a tendency to consider the complainant’s actions suspiciously without obtaining his position and explanation (para. 35), and suspicions and views of the complainant that reached extreme unwarranted heights (paras. 52 and 55);

8. It is alleged that the respondent Greenaway targeted the complainant in various ways, which include reviving an assignment issue that previously had been addressed in order to accumulate evidence on the complainant (para. 54) and soliciting “dirt” on him (paras. 56 and 57);

9. It is alleged that the complainant was inappropriately, disproportionately and discriminatorily disciplined by the respondents and also threatened with further punishment (paras. 70 and 72);

10. It is alleged that the complainant was punished due to overblown and unsubstantiated suspicions about him and his brother, and because of his association, relationship and dealings with his brother (para. 60); and

11. It is alleged that the complainant was subjected to reprisal and ongoing discrimination at Oakwood Collegiate Institute caused by his poisoned school environment (paras. 76 and 77).

28I further confirm the Commission’s clarification on the pre-hearing conference call that it is not seeking any finding of a Code violation in relation to the allegations that appear in paragraphs 5, 9 and 10 of the Commission’s hearing brief. In addition, the Commission further confirmed that it is not seeking any finding of a Code violation in relation to paragraphs where the corresponding bullet points speak to merely the relevance of the alleged material facts to an issue in the proceeding, including paragraphs 8, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 37 and 38 of the Commission’s hearing brief.

29However, other allegations in the Commission’s hearing brief are unclear:

1. Does the Commission contend that the allegation in para. 35 that “even though students were regularly in the vault area, the fact that secretaries were now reporting to respondent Greenaway about Andrew’s movements is indicative of the pervasive suspicion that the respondents had permitted to manifest in the school and amongst its staff” constitutes part of the “poisoned environment” as addressed in item (3) above;

2. The allegation in para. 53 about a school trustee informing the respondent Greenaway about a certain “Luc Persaud” being a senior officer in the Air Cadets is not linked to any of the alleged Code violations;

3. In para. 65 a bullet point refers to the complainant having been disciplined without knowing why, and that he was subjected to embarrassment and further victimization by attending school without knowing he had been suspended. Similarly, in para. 67, there is reference to the complainant being treated as if he were to blame for attending school while on suspension. These allegations are not clearly related to an alleged Code violation;

4. In para. 64, there is reference to an e-mail being sent by the Board’s Safe Schools Coordinator. This appears to be an extension of the poisoned environment allegation addressed above, which is restricted to Vaughan Road Academy, but the precise scope of this allegation is unclear;

5. Repeated reference is made to Section 12 in bullet points under various paragraphs. However, the only actual allegation of a Section 12 violation appears to be in paragraph 60.

30The Commission is to confirm that the categories of conduct identified in paragraph 27 above represent all of the categories of conduct alleged to be in violation of the Code and that the referenced paragraphs represent the material facts being alleged in support of each impugned category of conduct. If I am not correct the Commission is directed to identify what other categories of conduct are being alleged to be in violation of the Code and what material facts support any such further categories, and/or what further material facts are being relied upon in support of the categories of conduct already identified in paragraph 27.

31In addition, the Commission is directed to clarify the matters raised in paragraph 29 above by letter sent to the Registrar and copied to the other parties by no later than May 9, 2008. If the complainant has anything to add, this shall be done by May 14, 2008, and any response from the respondents shall be provided by May 26, 2008.

32I have not addressed the respondents’ concerns about the Commission’s and complainant’s response to paragraph 2(ii) of my February 15, 2008 order, with the exception of the allegations against the respondent Greenaway, as the allegations against the other personal respondents will be the subject of a further interim decision once submissions have been received from the parties as discussed on the pre-hearing conference call.

33With regard to the parties’ request for 62.5 hearing days, and with all due respect, the estimated length of hearing seems wholly out of proportion to the matters at issue and the scope and extent of evidence that is reasonably required to determine this matter. Bearing in mind the need to fairly and justly, yet also expeditiously, determine this matter what follows below is my estimate of the time which should be required to complete an effective examination-in-chief and cross-examination of the proposed witnesses, which includes the three former personal respondents to the reprisal complaint. These time estimates will not be applied rigidly but, in my view, they are both fair and reasonable. Where further time is requested, I will want to be satisfied that effective use has already been made of the time allotted, what areas of examination remain to be covered and why those areas are relevant to the determination of this matter. I have not included time estimates for any potential expert witnesses, as no determination has yet been made as to whether expert evidence is necessary in this case; and a process was set out on the pre-hearing conference call to make this determination.

Examination-in-chief

Cross-Examination

Commission witnesses

Andrew Persaud

1 day

1 day

Raymond Persaud

½ day

½ day

Pat Persaud

½ day

½ day

Natasha Persaud

½ hour

½ hour

Elis Boci

1 hour

1 hour

Arlind Qatapi

1 hour

1 hour

David Bartfai

1 hour

1 hour

Respondents witnesses

Suzana Greenaway

1 day

1 day

Paul Corner

½ hour

½ hour

Roy Evely

½ hour

½ hour

Hartley Rosen

½ hour

½ hour

Anthony Masciello

½ hour

½ hour

Heidi Gollert

½ hour

½ hour

Jan Stewart

1 ½ hours

1 ½ hours

Sonja Weber

½ hour

½ hour

Anna Serykh

1 hour

1 hour

Chris Nokes

1 hour

1 hour

Andrew Robinson

1 hour

1 hour

Peter Donaldson

1 hour

1 hour

Harold Wright

1 hour

1 hour

Roberta Bergman

1 hour

1 hour

Renata Gonsalves

1 hour

1 hour

Note: The time estimates for the examinations-in-chief of the Commission’s witnesses include examination by both the Commission and the complainant, as do the time estimates for cross-examination of the respondents’ witnesses.

34With regard to the remaining witnesses on the lists submitted by the parties, if any party still wishes to call any of these witnesses to give evidence at the hearing, I will want to know who these individuals are and what relevant evidence they have to contribute to this proceeding. In addition, if a party takes issue with the time estimates for the examination of any of the witnesses, the party may provide submissions seeking a modification of the time for examination or cross-examination together with their witness summaries in advance of the hearing.

ORDER

35For all of the foregoing reasons, the Tribunal makes the following Order:

a) Pursuant to Rule 14(d), the main complaint (HR-1274-07) and the reprisal complaint (HR-1433-07) shall be consolidated and heard together in one proceeding, however the personal respondents to the main complaint shall not be found personally liable in relation to the events at issue in the reprisal complaint, and more particularly in relation to the matters set out in the Commission’s hearing brief at paras. 76 and 77;

b) The hearing is this matter shall be bifurcated to first hear and determine all issues of liability, and then hear and determine all issues relating to remedy or costs as the case may be;

c) By no later than May 9, 2008, the Commission shall confirm that the categories of conduct identified in paragraph 27 of this decision represent all of the categories of conduct which are alleged to be in violation of the Code and that the referenced paragraphs represent the material facts being alleged in support of each category of conduct. If not, the Commission shall identify what other categories of conduct are being alleged to be in violation of the Code and what material facts support any such further categories, and/or what further material facts are being relied upon in support of the categories of conduct identified in paragraph 27. The Commission also shall provide clarification regarding the matters raised in paragraph 29 of this decision. If the complainant has anything to add, this shall be done by May 14, 2008, and any response from the respondents shall be provided by May 26, 2008.

d) By the time the parties are required to serve and file their witness summaries in advance of the hearing, the parties shall serve and file any submissions:

i) regarding why a longer or shorter time for examination or cross-examination may be required for any witness listed on the time estimates set out in paragraph 33 of this decision; and

ii) regarding to any other witnesses any party wishes to call to give evidence, who this witness is, what relevant evidence they have to contribute to this proceeding, how long their evidence is expected to take, and why it is necessary to call their evidence.