S.T. v. Toronto District School Board, 2009 HRTO 1074

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

S.T. by her next friend, C.R.E.

Applicant

-and-

Toronto District School Board,

Deborah Clodman, Martha Tobe and Maria Powell

Respondents

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: Mark Hart

Date: July 20, 2009

Citation: 2009 HRTO 1074

Indexed as: S.T. v. Toronto District School Board

APPEARANCES

S.T. by her next friend, C.R.E., Applicant

C.R.E., Next Friend

Toronto District School Board, Deborah Clodman, Martha Tobe, and Maria Powell, Respondents

Grant Bowers, Counsel

1This is an Application filed October 24, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The underlying complaint in this matter was filed with the Ontario Human Rights Commission on July 10, 2006.

2The Case Resolution Conference in this matter was held on May 25 and June 22, 2009 in accordance with the expectation, expressed in the Code and the Tribunal's Rules of Procedure for Transitional Applications, that section 53(3) applications proceed in a highly expeditious manner. As the applicant was not represented by counsel, I took the lead in questioning her and her litigation guardian, who is the applicant's grandmother, on the first day of hearing in order to obtain clarification as to the allegations being raised in this proceeding and to elicit the totality of their evidence in relation to these allegations. On the second day of hearing, the applicant's grandmother was cross-examined by counsel for the respondents. Counsel for the respondents quite properly elected not to cross-examine the applicant, who is a minor. I also heard from the three personal respondents, and afforded the applicant, through her grandmother, with an opportunity to question the respondent witnesses and to provide any further evidence arising out of the evidence I heard from the respondents.

3At the relevant time, the applicant was 9 years old and attending an elementary school operated by the respondent Board. She attended the school in question from December 2005 until June 2006. One of the personal respondents, Deborah Clodman, was the applicant's classroom teacher during that school year. Another of the personal respondents, Maria Powell, also was a teacher at the school during that school year, and taught a different class in the same grade as the students taught by Ms. Clodman. The third personal respondent, Martha Tobe, was the Acting Principal at the school from and after March 20, 2006 following a personal leave that needed to be taken by the Principal, Mr. Ferriman.

4Following the conclusion of the first day of hearing, I issued an Interim Decision in this matter in which I confirmed the allegations being raised in this proceeding 2009 HRTO 744. In summary, the allegations raised are as follows:

1. It is alleged that the applicant was experiencing racial name-calling and other comments by students, and that the school and the Board failed to take appropriate steps to address that.

2. It is alleged that sometime in the spring 2006, the applicant's teacher, who is one of the personal respondents, made a derogatory comment about her in the classroom to the effect of, "what is that smelling, are you wearing cologne or something, the smell stinks".

3. It is alleged that on another occasion in the spring 2006, another teacher made a comment referring to the applicant as a "cheerleader" in front of other children and the children laughed at the applicant.

4. It is alleged that racism underlies the raising of a sexually-related issue on April 7, 2006 and a report to CAS in May 2006.

5I will address each of these allegations in turn.

Allegations re Racial Name-Calling and Comments

Comments by students on the bus

6The evidence of the applicant's grandmother was that, during the first couple of months that the applicant attended the school, she was subjected to racial name-calling from students on the school bus who would stick their heads out the bus windows and make comments such as "get out of our school" and "you black nigger". It is further alleged that the Principal and then later the Acting Principal were present when these comments were made. The applicant's grandmother testified that, sometime in late May or June 2006, a student called out of the bus and referred to the applicant as a "black pig" and said she should "go back to Africa" and "get out of our schools".

7The applicant recalled children yelling at her from the bus with comments such as "why are you in our school", "you're black", "get out of our school" and "you're not supposed to be here". The applicant thought the Acting Principal was there usually at the end of the day, but she didn't recall whether the former Principal was present when these comments were made. The applicant's evidence was that the term "nigger" was not used in this context. She said that the word "nigger" was used towards her by one person who was a student at the school. The applicant believed that this term was used towards her during the middle of the period when she attended the school. She thought it was outside and didn't think any teacher was present. The applicant said that she told a teacher about this and believes that she told Ms. Clodman about it sometime after the day it happened.

8With regard to the comment alleged to have been made in May or June 2006, the applicant said that she recalled a boy yelling out of the bus and calling her a "black fat pig". Initially the applicant said that this comment was made on the same day as another racial comment made by the same boy, but after an interjection by her grandmother later said that she didn't recall when the comment was made but that it was made after the other racial comment.

9The evidence indicates that neither the applicant nor her grandmother ever raised an issue with the Principal, the Acting Principal or anyone else at the school about the alleged comments made by the students on the bus. While the applicant's own evidence was that she told the Acting Principal, Ms. Tobe, about the "black fat pig" comment made in May or June 2006, I find that the applicant's evidence was confused about this incident and that she was mixing her recollection up with the other racial comment made by this same boy that was reported to Ms. Tobe.

10Ms. Tobe testified that it was part of her duties to supervise the children getting onto the bus, and recalled in this context seeing the applicant from time to time leave the school to meet her grandmother. Her evidence was that she did not hear children make any of the alleged comments. The former Principal did not testify at the hearing.

11I have little doubt that there may have been occasions when children made comments directed towards the applicant from the school bus. In light of the applicant's own evidence, I do not find that the term "nigger" was used in this context. However, I accept the evidence of Ms. Tobe that she did not hear the alleged comments. Given the specific actions that Ms. Tobe took to address other comments about the applicant that were brought to her attention (as discussed below), I find it more likely than not that if she had heard any such comments, she would have taken steps to address them.

12With regard to the former Principal, I am not prepared to make any finding against him, even in the absence of his evidence. First, the applicant was not clear in her evidence that the former Principal was present when any such comments were made. Second, the former Principal was not identified as a personal respondent to this Application and the specific allegation that he was present and heard inappropriate comments being made by children on the bus was only raised at the commencement of the hearing on May 25, 2009, over three years after these events are alleged to have occurred. In this context, in my view, it would be unfair and inappropriate to make any finding against the former Principal and I decline to do so.

13In making these findings, I do not intend in any way to minimize or diminish the impact on the applicant of any comments that may have been directed towards her by children on the school bus. For someone so young who is not only a new student at the school but also one of a very small number of racialized students at the school, I accept that these kinds of comments would have been very hurtful. I also do not intend in any way to be critical of the applicant's grandmother, who made a reasonable choice as someone in the role of the parent to this child, to counsel the applicant to ignore these comments and concentrate on doing well in her studies.

14However, in order for me to be in a position to make a finding that the respondents are legally liable for comments made by students at the school in the circumstances alleged, it is not enough for me to find merely that the comments were made. I would need to be satisfied that the respondents either were (or ought reasonably to have been) aware or were made aware of these comments, and failed to take appropriate steps to respond to them. For the reasons stated above, I am not satisfied that the respondents were or ought to have been aware of these comments, and as a result I find no basis in the evidence to support finding that the respondents violated the Code in relation to these comments.

15With regard to the applicant's evidence that she was called a "nigger" by another student when she was outside the school, once again I do not doubt that this may have occurred. However, I am not satisfied on the evidence that any such comment was reported to Ms. Clodman. As discussed below, two racial comments which made reference to the term "Black" that were reported by the applicant to Ms. Clodman were treated seriously and acted upon immediately. It is my view that had the use of the term "nigger" been reported to Ms. Clodman, she would have responded with even greater seriousness. Given the lack of clarity in the applicant's own evidence and in the absence of any evidence from Ms. Clodman that such a comment was reported to her, I do not find that the use of the term "nigger" was reported by the applicant.

Alleged comments in the classroom

16It is further alleged that the applicant was subjected to name-calling in the classroom that she reported to her grandmother. The applicant's evidence was that she was called names in the classroom, and that some kids said she was fat and some kids made fun of her colour. The applicant testified that there were so many comments that it was hard to keep track of them. The applicant testified that only one of those comments was made when her teacher, Ms. Clodman, was present in the classroom and this was the "fat" comment. The applicant said that she spoke to Ms. Clodman about this comment as soon as the comment was made, and told Ms. Clodman that two students were commenting on her body weight and identified who the students were. The applicant said that Ms. Clodman said to these students, "that's not nice and don't do it again".

17Ms. Clodman's evidence was that, apart from the comment about the applicant being "fat", she was not aware of any other inappropriate comments being made about the applicant in her classroom. This is consistent with the applicant's own evidence that Ms. Clodman was not present when the other comments were made. There is no evidence that any other specific comments alleged to have been made in the classroom were brought to Ms. Clodman's attention. Once again, while these comments may indeed have been made by students in the classroom when Ms. Clodman was not present, in the absence of any evidence that Ms. Clodman was or ought to have been aware or was made aware of these comments, I find no basis to support a finding of a violation of the Code as against the respondents.

18With regard to the "fat" comment, Ms. Clodman's evidence confirmed that the applicant brought this comment to her attention. Ms. Clodman said that she was very upset and she spoke to the student and warned that if it happened again, she would call the student's parents. I find that Ms. Clodman's response in this situation was appropriate. I also note that the evidence does not disclose any link between the comment made and the grounds of discrimination alleged, being race, colour and ethnic origin. For these reasons, I find that there is no basis arising out of this comment to support a finding of a violation of the Code by the respondents.

19The applicant's grandmother gave evidence that, on or about May 18, 2006, she was in the hallway outside the applicant's classroom and heard a boy say "you don't belong here, get out of the school". She testified that she immediately entered the classroom, slapped her hand on a desk and asked Ms. Clodman to put a stop to this, and that Ms. Clodman said only that she would speak to the children's parents.

20The applicant could not recall her grandmother coming into the classroom after a comment of this nature had been made. However, she did recall an occasion in the classroom when a boy said "get out of here, you don't belong here". The applicant testified that Ms. Clodman was present when the boy said this but did not do anything, although it is possible that Ms. Clodman didn't hear the comment. The applicant didn't recall Ms. Clodman ever saying that she would speak to other students' parents about comments being made in the classroom.

21Ms. Clodman's evidence was that there was no occasion when the applicant's grandmother came into her classroom while the class was in session, slapped her hand on a desk and told Ms. Clodman to put a stop to what was happening. Ms. Clodman's evidence was that she would have remembered if something of this nature had occurred. Ms. Clodman did recall an occasion when the applicant's grandmother came up to her after school to raise a specific racial comment that had been directed towards the applicant by a student (discussed below). Ms. Clodman advised the applicant's grandmother that she would call the student's parents.

22In assessing the totality of the evidence, I am not satisfied that the applicant's grandmother heard the comment and entered Ms. Clodman's classroom in the manner stated. If this had occurred as described by the applicant's grandmother, it is more likely than not that Ms. Clodman and the applicant would have recalled this event. In my view, the applicant's grandmother entering the classroom and slapping her hand on the desk would be the kind of striking event that the applicant would recall, even as young as she was at the time. As a result, I do not accept the evidence of the applicant's grandmother that she heard the comment made by the student as she alleges or that she entered the classroom and raised it with Ms. Clodman in the manner alleged.

23With regard to the applicant's evidence that she recalled a boy in her class saying to her, "get out of here, you don't belong here", the applicant's evidence was that it was possible that Ms. Clodman didn't hear the comment and Ms. Clodman's evidence was that she was not aware or made aware of any such comment. For the same reasons as expressed above, I do not find that this provides any basis to support a finding of a violation of the Code as against the respondents.

The monkey bars incident

24The applicant's grandmother testified that there was an occasion sometime in the spring 2006 when the applicant sustained an injury after being pushed off the monkey bars by another student who said "you don't belong here, get out of the playground". The applicant testified that the student who made the comment wasn't the one who had pushed her off the monkey bars. Rather, the comment was made after recess, after she had been pushed off the monkey bars. The applicant stated that she told the school secretary that a boy had pushed her off the monkey bars, but she didn't mention the comment made by the other boy.

25Ms. Tobe testified that she was aware that the applicant had been pushed off the monkey bars, and she contacted the applicant's grandmother to let her know that this had occurred. However, she was not made aware of the comment alleged to have been made by another boy. When the applicant reported that she had been pushed by the same boy a second time, Ms. Tobe made this boy apologize to the applicant and docked him a number of recesses for his conduct.

26I find no basis in these incidents to support any finding of a violation of the Code as against the respondents.

Specific racial comments reported to the respondents and the respondents' response

27The respondents confirmed that the applicant or her grandmother reported a number of specific incidents where racial comments had been made.

28Ms. Clodman testifed that she recalled a specific occasion when the applicant's grandmother reported to her that a student had called the applicant a "big, black bum" and said that the applicant was from Africa. Ms. Clodman stated that she was very upset about this and told the applicant's grandmother that she would talk to this student's parents. Ms. Clodman stated that she did speak to this student's mother and the mother said that she would definitely speak with her son about the incident and that he would have consequences at home. Ms. Clodman stated that she didn't have a problem of this nature with this particular student after this and that no further issues were raised with her by the applicant's grandmother.

29Ms. Tobe testified that Ms. Clodman told her about the "big black bum" comment. She believed that this occurred in the first part of May 2006. Ms. Clodman told Ms. Tobe that she was going to call the boy's parents and perhaps also told her that this had been done. The Children's Aid Society ("CAS") became involved in circumstances discussed below and came to the school on May 16, 2006, at which time the applicant reported to the CAS that she was being bullied at the school and specifically raised the name of the boy who had made the comment. Ms. Tobe testified that after the CAS's involvement, she also spoke directly to this student about his conduct towards the applicant.

30On May 23, 2006, the applicant's grandmother picketed the school to protest against how the applicant was being treated. Ms. Clodman stated that on the day of the picketing, after the bell had just rung at the end of the day, the applicant came up to Ms. Clodman and told her that one of boys in the class had said that if the applicant wasn't happy at the school, then maybe they shouldn't have Blacks in the school. Ms. Clodman immediately took the applicant and this student to the office, where Ms. Clodman spoke to the Acting Principal, Ms. Tobe. While Ms. Tobe was with the applicant and the boy who had made the comment, Ms. Clodman went to get the applicant's grandmother, who was at the school to pick up the applicant.

31Ms. Tobe testified that she contacted the boy's mother, who was horrified and embarrassed at what he had said. Ms. Tobe believed that at this point, the boy realized what an inappropriate comment he had made. Ms. Tobe told the boy that he needed to spend some time with her the next morning on an in-school suspension. Ms. Tobe let the applicant's grandmother know that she would be dealing with the issue. The next day, the boy served the in-school suspension and prepared a handwritten note apologizing for his behaviour. The boy handed the note to her, Ms. Clodman and the applicant. Ms. Tobe arranged for the applicant and the boy to come together at the end of the day, and the boy apologized to the applicant and the applicant accepted his apology.

32The picketing of the school by the applicant's grandmother on May 23, 2006 led to a meeting that day involving the applicant's grandmother, the Acting Principal, the Superintendent, a Safe Schools Advisor and the local Trustee. While the evidence indicates that a variety of issues were raised by the applicant's grandmother at this meeting, Ms. Tobe confirmed that the applicant's grandmother raised the issue of race and her concern that the applicant was feeling excluded at the school.

33Arising out of the meeting on May 23, 2006 and the prior report of the CAS that the applicant was feeling bullied at the school, the respondents took a variety of steps to address these issues. The school held a "no put down" day. Ms. Clodman's class conducted a community circle where she and the students talked about put-downs. Ms. Clodman expressed to her students that a put-down was like a punch, but that it was bruising to the person's heart instead of their body.

34The Acting Principal held a staff meeting, where she voiced concerns about inclusiveness and made staff aware that they needed to keep an eye out for bullying. Ms. Tobe testified that she also kept an eye out to make sure that the applicant was being included and was not being bullied.

35In addition, in early June 2006, every class in the school participated in an exercise with their teacher about how the school would look if it was inclusive. In 2002 staff had received three days of training which involved using material called the "Tribes booklet" and engaging in activities that make students feel inclusive, and this material was utilized at the school to support the exercise around inclusiveness.

36Clearly, in light of these incidents, the respondents knew as of May 23, 2006 that at least two racial comments had been directed at the applicant by two different students and also knew that the applicant was feeling bullied and had expressed concern to her grandmother about feeling excluded. Given these circumstances, I find that the respondent Board and the personal respondents Ms. Tobe and Ms. Clodman were under a positive duty not only to address the two specific incidents that were reported but also to take broader steps to address the school environment.

37Having said that, I find that these respondents did take appropriate steps to address the two specific incidents of racial name-calling that had been reported by the applicant. Both incidents were taken seriously by the respondents and were addressed not only with the students who had made the comments but also with their parents. In relation to the first incident, I find that it was sufficient for Ms. Clodman to have been assured by the boy's parents that he would experience consequences at home without the school itself imposing further discipline, particularly in light of the fact that Ms. Tobe followed up directly with this student regarding his conduct after the involvement of the CAS and the applicant's report of feeling bullied by him. With regard to the second incident, I find that the discipline imposed by the school and the exercise of ensuring that this student provided an apology to the applicant were appropriate steps in the circumstances.

38With regard to the issue of the broader school environment, I find that the respondents also took appropriate steps to address the concerns about bullying, name-calling and lack of inclusiveness.

39For these reasons, I find that the respondents satisfied their duty to take positive steps to address the two incidents of racial name-calling and the school environment. As a result, I do not find the respondents to be in violation of the Code in relation to these issues.

The allegation against Ms. Clodman

40It is alleged that sometime in the spring 2006, the applicant's teacher, Ms. Clodman, made a derogatory comment about her in the classroom to the effect of, "what is that smelling, are you wearing cologne or something, the smell stinks". It appears that the smell was caused by another student who was using hand cleanser. The applicant's grandmother was of the view that this is related to racism, because the teacher wouldn't do that to other children.

41The applicant recalled Ms. Clodman speaking to her about the smell that day and remembered Ms. Clodman thinking that she was the cause of the smell. The applicant didn't recall Ms. Clodman using the word "stink" but said that Ms. Clodman used the word "smelly". The applicant said that Ms. Clodman asked if she had lotion or perfume on or anything like that. The applicant said that it was another girl and her hand lotion that was causing the smell.

42Ms. Clodman testified that she didn't remember the incident, that she would never have said "stinky" or "smelly" to any child in class and that she didn't ask the applicant if she was wearing cologne. Ms. Clodman did remember that some students were using a particular hand cleanser that had a strong smell, and she recalls saying that soap and water was better.

43In my view, I do not find it necessary to resolve the factual dispute in the evidence as to whether this comment was made by Ms. Clodman. Even if Ms. Clodman did detect a smell and asked the applicant if she had anything on that was "smelly", I do not find anything in such a comment that would be sufficient to support an allegation of racial discrimination. There is nothing on the face of such a comment that would support that conclusion, and the assertion that Ms. Clodman would not make such a comment to a White student is entirely speculative.

44I see no basis in this allegation to support a finding of a violation of the Code.

The allegation against Ms. Powell

45It is alleged that on another occasion in the spring 2006, another teacher, the respondent Maria Powell, made a comment referring to the applicant as a "cheerleader" in front of other children and the children laughed at the applicant. It is alleged that this is racism, because the applicant was appropriately dressed and the teacher disgraced her in front of other children at the school.

46The applicant's evidence was that Ms. Powell said, "hey look at that cheerleader" and some of the other children laughed and the applicant felt that they were making fun of her. The applicant recalls that her grandmother was taking her to class when this comment was made, and thinks that they were in a hallway in the school. The applicant was upset about being called a cheerleader because she thought cheerleaders were bad people because of the way they act and because they do bad stuff and say bad things.

47Ms. Powell testified that she was doing yard duty that morning, and when she saw the applicant, she thought the applicant had a cute outfit on and said "you're a cheerleader again today". Ms. Powell doesn't recall that there were other children around when she said this. Ms. Powell states that neither the applicant nor her grandmother said anything to her about the comment at the time, but she later became aware that the applicant's grandmother had complained about the comment.

48As part of the evidence at the hearing, the applicant's grandmother showed me the outfit that the applicant had been wearing that day. The outfit consists of a blue top and matching skirt with shorts underneath, and was described by the applicant's grandmother as a gym outfit. The outfit top has a design on the front that consists of a star with a megaphone in the middle of the star.

49The exception taken to this comment by the applicant and her grandmother appears to relate to their personal perception of what is associated with being a "cheerleader". At the second day of hearing, the applicant's grandmother came with a picture of a group of cheerleaders in short skirts and sexually suggestive dress. While I appreciate that this may be their honest perception of what it means to be a "cheerleader", I do not believe that this is a complete, accurate or necessary perception as to what is meant by that term. Many schools have cheerleading squads that are comprised of both girls and boys, and cheerleading itself not only supports school athletic activities but also has evolved into a competitive sport in its own right. Many individuals, like Ms. Powell, who have acted as cheerleaders are proud of their involvement in this activity. While there is no doubt that negative or sexual associations can be attached to cheerleaders in some contexts, I do not find that this is a necessary or appropriate association in all contexts.

50While I appreciate the view of the applicant's grandmother that the applicant was wearing a gym outfit that day, the fact remains that the design on the front of the outfit top, with a star and the kind of megaphone used by cheerleaders, and the matching top and skirt is evocative of a cheerleader. This is not to suggest that there was anything inappropriate in any way about the outfit. To the contrary, it was a modest and entirely appropriate outfit for a young girl to be wearing to school. But at the same time, the outfit is evocative of a cheerleader's outfit, and I find that this is what prompted Ms. Powell's comment.

51In any event, I do not find anything in the evidence to connect the making of this comment to the allegations of discrimination because of race, colour and ethnic origin raised in the Application. Accordingly, I find no basis in the evidence to support any finding that Ms. Powell violated the Code.

Allegations re sexually-related topics being raised with the applicant

The April 7, 2006 incident

52In my view, the basic facts relating to this incident do not appear to be much in dispute. Before March break in the 2006 school year, Ms. Powell approached Ms. Clodman and said that a parent of one of Ms. Powell's students had told her that her daughter had come home and said that the applicant gets candy from her father when he touches her. Ms. Clodman states that it was her intention to discuss this issue with the Principal, but this was right around the time that he commenced his personal leave. As a result, Ms. Clodman raised this issue with the applicant and her grandmother on April 7, 2006.

53On that day, the applicant was preparing to attend a Blue Jays game to sing at that event with the school choir and her grandmother was at the school to accompany her to the event. The applicant took her grandmother up to her classroom to show her some work that she had done. The applicant, her grandmother and Ms. Clodman were the only people in the class at the time.

54The applicant's grandmother testified that Ms. Clodman said to the applicant, "If anyone touches your private parts, come and tell me because my husband is a social worker". The evidence of the applicant's grandmother was that Ms. Clodman said that she had been meaning to raise this some months ago because somebody had sent an e-mail stating that the applicant had said that her father abuses her and touches her and gives her candy. The applicant's grandmother sat there with her mouth open wide, and took the information in.

55Ms. Clodman's version of the discussion was that she said to the applicant's grandmother that she had heard that the applicant gets candy from her father, and asked if the applicant saw her father and if she knew the difference between good touch and bad touch. Ms. Clodman stated that she shared with the applicant's grandmother that she had children too and that she had explained to them the difference between good touch and bad touch. Ms. Clodman acknowledged that she mentioned that her husband is a social worker. Ms. Clodman stated that she said that she had received a report that the applicant had said her father gives her candy when he touches her, and wanted the applicant's grandmother to know that if the applicant does see her father, Ms. Clodman was concerned. Ms. Clodman acknowledged that the applicant's grandmother was upset about this discussion, and she recalled saying, "I'm really sorry you are upset but I was worried about [the applicant] and I needed to approach you about this". Ms. Clodman stated that after that day, she had no further discussions with the applicant or her grandmother about possible sexual misconduct.

56I can appreciate that it is upsetting for any person acting as a parent to receive information suggesting that a child in their care may be experiencing sexual abuse. Nonetheless, a person like Ms. Clodman who is in the role of a teacher and who receives information that may suggest that something improper is occurring has a responsibility at the very least to raise the issue to the parent's attention and to ensure that the child is safe. In the specific circumstances of this case, Ms. Clodman was in receipt of information reporting that the applicant may have made a comment that is suggestive that she may have been inappropriately touched by her father. At a minimum, it was entirely reasonable for Ms. Clodman to have raised the information she had received with the applicant's grandmother. In the circumstances, I think that it also was entirely appropriate for Ms. Clodman to raise directly with the applicant whether she knew the difference between good touch and bad touch, and to let the applicant know that she could come to Ms. Clodman if someone was touching her inappropriately.

57The applicant's grandmother testified that the applicant was not seeing her father at that time, and has only begun seeing him again recently. There were no men in her house who could have been sexually abusing the applicant. I have no reason to doubt either statement. The applicant also testified directly that she did not make the comment that was reported to Ms. Powell. That may be true. However, without raising this issue with the applicant and her grandmother, there would be no way for Ms. Clodman to know that.

58In any event, I do not find any basis in this issue to support an allegation of discrimination because of the applicant's race, colour or ethnic origin.

The report to the CAS

59On May 8, 2006, Ms. Powell received an e-mail from a parent of one of the children in her class expressing concern about certain information that the child had brought home. The parent reported that the child had said that the applicant told two other students that her father was in jail for having sex with someone who didn't want to and that her mother was also in jail for French kissing her. The parent also reported that she had been told that the applicant had a sticky-note on her skirt and one on her private area under the skirt that said "look but don't touch". Ms. Powell forwarded this e-mail to Ms. Clodman that evening.

60Ms. Clodman advised the Acting Principal, Ms. Tobe, of the e-mail the following morning and later that day also informed Ms. Tobe about the earlier report that was the subject of the April 7, 2006 discussion with the applicant and her grandmother. At this point, Ms. Tobe decided to investigate the information received in the e-mail by speaking with the applicant and the children whose names were mentioned in the e-mail. The applicant denied making the alleged comments or putting a sticky note on her skirt or underpants, as she did in her evidence before me. In contrast, the children confirmed to Ms. Tobe the information set out in the e-mail.

61After school that afternoon, Ms. Tobe spoke to the applicant's grandmother to inform her of the information that had been reported to the school. The applicant's grandmother was very upset, and questioned how the applicant could possibly know about such things because they were not discussed in the house. The applicant's grandmother asked to see a copy of the e-mail, but this was denied because it contained the names of the children who had reported the allegations.

62On May 11, 2006, Ms. Tobe received a telephone call from the applicant's grandmother requesting the Superintendent's phone number, which was provided. Ms. Tobe then called the Superintendent to let her know to expect a call from the applicant's grandmother. When Ms. Tobe spoke to the Superintendent and advised her of the e-mail and its contents, the Superintendent directed her to contact the CAS at least for a consultation.

63Accordingly, Ms. Tobe contacted CAS that afternoon and read the contents of the e-mail to them. CAS advised Ms. Tobe that the e-mail raised serious allegations and they would have to investigate. CAS asked Ms. Tobe whether she felt that the applicant was unsafe, to which the Acting Principal responded no.

64An investigator from the CAS came to the school on May 16, 2006 and met with the applicant. The CAS also interviewed the applicant's grandmother and Ms. Tobe. On May 17, 2006, the CAS provided a letter to the applicant's grandmother confirming that it had completed its investigation and that it had found no evidence in support of the allegations. As a result, the CAS closed its file in the matter.

65Once again, I appreciate that it is very upsetting for someone in the role of a parent to have a report made to the CAS about a child in their care. At the same time, the school was in receipt of information which was suggestive of the applicant saying and doing things that may not be sexually appropriate for a girl her age. I appreciate that the applicant denied saying or doing the things alleged in the e-mail, and I have no reason to doubt her evidence. At the same time, it would have been irresponsible for the school simply to have ignored the information it received.

66Upon receiving a copy of the May 8, 2006 e-mail and being informed of the April 7, 2006 discussion, I find that Ms. Tobe took appropriate steps by investigating the matter and speaking with the applicant and the children whose names appeared in the e-mail and by informing the applicant's grandmother about the e-mail and its contents. I further find that the report to CAS was made because the matter was in the process of being elevated to the Superintendent level by the applicant's grandmother, and the Superintendent directed Ms. Tobe to contact the CAS when informed as to the contents of the e-mail. It is notable that the initial contact with the CAS was just for the purpose of a consultation and Ms. Tobe made it clear to CAS that she did not believe that the applicant was unsafe. However, CAS made its own determination that the matter needed to be investigated further.

67The connection with the allegation of racial discrimination is based on the belief of the applicant's grandmother that the e-mail was sent by a specific parent as part of an effort to get the applicant removed from the school because she is Black. There are several problems with this allegation. First, the evidence does not support that the e-mail was sent by the specific parent who was the focus of the allegation. While the specific name on the e-mail was blocked out in order to protect the privacy of the children involved, all of the respondent witnesses testified that the author of the e-mail is not the parent identified by the applicant's grandmother. I have no reason to doubt this evidence. Second, the information that forms the basis of the e-mail came not from the parent who reported it, but from this parent's child. Further, this information was confirmed by the Acting Principal directly with the children involved. So this is not a situation where a parent was making up information about the applicant in an attempt to drive her out of the school. This is a case where a parent was reporting information told to her by her child and confirmed with this child and other children. Third, the information on its face raises a serious concern that was worthy of being reported to the school by the parent, of being looked into by the Acting Superintendent and of being shared with CAS. In saying this, I am not suggesting that the information itself is true or that the applicant said or did the things alleged. Rather, all I am saying is that, on its face, the information gives rise to a serious concern that bears examination. And that is all that happened.

68Accordingly, I find no basis in the evidence to support the allegation that the applicant experienced discrimination because of her race, colour or ethnic origin in relation to this incident.

ORDER

69For all of the foregoing reasons, the Application is dismissed.