Perron v. Conseil Scolaire de District Catholique des Aurores Boréales, 2009 HRTO 1228

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jacques Perron

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Yvonne Monto

Respondent

A N D B E T W E E N :

Jacques Perron

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Conseil Scolaire de District Catholique des Aurores Boréales and Robert LePage

Respondents

INTERIM DECISION

Adjudicator: Mary Truemner

Date: August 10, 2009

Citation: 2009 HRTO 1228

Indexed as: Perron v. Conseil Scolaire de District Catholique des Aurores Boréales

1The Complaints in this matter allege that the complainant experienced discrimination with respect to employment because of sexual orientation. The Complaint against l’Association des enseignantes et des enseignants franco ontariens (the “union”), Rachelle Chrétien and Yvonne Monto, Tribunal File Number HR-1819-08, was filed on December 26, 2004, prior to the complainant’s dismissal from his employment with the Conseil Scolaire de District Catholique des Aurores Boréales (the “Board”) on November 25, 2006. The Complaint against the Board, Robert LePage and Claire Vachon, Tribunal File Number HR-1820-08, was filed on August 9, 2007. The Commission combined the two Complaints and referred them to the Tribunal on December 19, 2008.

2This Interim Decision will address Claire Vachon’s Request for an Order During Proceedings to remove her as a personal respondent in the complaint HR-1820-08. The Commission and the Board support this Request. Only the complainant opposes it.

3This Interim Decision will also address the Requests made to dismiss Complaint HR-1819-08 on the basis that the Tribunal has no jurisdiction to deal with the complainant’s allegations against the union, Ms Chrétien and Ms Monto. The complainant and the Commission oppose these Requests.

4Finally, this Interim Decision will address issues related to the complainant’s communications to the representatives of the parties in these proceedings.

HR-1820-08: REQUEST FOR REMOVAL OF PERSONAL RESPONDENT VACHON

5The complainant was the principal of a school under the authority of the Board. He was dismissed by the Board after being investigated for alleged improper conduct related to his duties as a principal. Claire Vachon is counsel for the Board. The Complaint states that she made a settlement offer to the complainant, and that all members of the Board and its Administration are entirely responsible for the discrimination that he has experienced. The Commission’s letter, which summarizes the results of its investigation (the “Commission’s report”), includes an allegation that Ms Vachon asked that the complainant be asked about his sexual orientation.

6In Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal set out a non-exhaustive list of factors which it takes into consideration in assessing whether a personal respondent should be removed from a Tribunal proceeding:

• Is there a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

• Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who [is] sought to be removed?

• Is there any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

• Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

• Would any prejudice be caused to any party as a result of removing the personal respondent?

7In this case, Ms Vachon was at all relevant times employment law counsel to the Board and its predecessor. The Board confirms it is responsible for her conduct and any liability if the Tribunal finds she breached the Code. On that basis, the Commission has consented to the Request.

8While the complainant opposes the Request, I can see no reason to refuse it. The allegations against Ms Vachon are peripheral to the central issues in this case and the only remedy sought against her is a reprimand by the Law Society, which is not within the authority of the Tribunal. But in any event, the Board has accepted responsibility for her actions and would be able to provide a full remedy for any infringement of the Code. I therefore find that removing Ms Vachon as a personal respondent would not prejudice the complainant.

9The Tribunal directs that Claire Vachon be removed as a personal respondent and the style of cause is amended accordingly.

HR-1819-08: JURISDICTION OF TRIBUNAL

10Section 5 of the Code states:

5.(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.

11The Complaint generally asserts that the respondents are responsible for the revelation of the complainant’s sexual orientation to the village in which he worked and to his employer. The complainant alleges that Ms Monto’s complaint to her union about the complainant, and the union’s investigation of it, were the catalysts for events that resulted in the complainant’s termination. In essence, the complainant asserts that the respondents created a poisoned environment thus violating section 5(2) of the Code, although the Commission’s report cites only section 5(1).

12Ms Monto reported to her union that she experienced harassment and abuse of authority by the complainant. These allegations subsequently became the subject of a formal complaint which was filed on June 8, 2004. The union conducted an investigation, including meetings with other members, and filed a grievance on behalf of Ms Monto on March 2, 2005. The grievance went to arbitration which resulted in a decision dated December 7, 2006. The arbitrator awarded damages to Ms Monto for the harassment she endured.

13There is nothing in the pleadings which allege that the union or the union representative, Rachelle Chrétien, instigated anything in order to have the respondent’s sexual orientation revealed or discussed. Even leaving open the possibility that a union might be liable under s.5 of the Code for particular conduct, notwithstanding that it is neither the employer nor is it alleged to be an agent of the employer, I do not find anything in the pleadings that alleges that the union respondents in this case treated the complainant differently because of his sexual orientation or that they pursued a course of vexatious comment or conduct because the complainant was gay or perceived to be gay.

14Ms Chrétien organized a meeting with union members to investigate Ms Monto’s allegations in her union complaint, and the complainant alleges that at that meeting another union member, not named as a respondent in his Complaint, revealed his sexual orientation. There is nothing in the allegations that could support a finding that the named respondents have violated the complainant’s rights under the Code.

15Ms Chrétien participated in a subsequent meeting between the union’s counsel, Ms Monto, the employer and the employer’s counsel, but there are no allegations that Ms Chrétien or any other representative of the union referred to the applicant’s sexual orientation in these discussions, or elsewhere, to discredit the complainant with respect to his employment on the basis of his sexual orientation. The union had a responsibility as the bargaining agent to investigate and deal with Ms Monto’s employment-related concerns. The meeting was held to address Ms Monto’s allegations of harassment against the complainant. The Complaint against the union and Ms Chrétien does not raise any matter that falls within the Tribunal’s jurisdiction. They are removed as respondents.

16I am, however, prepared to accept that the Tribunal may have jurisdiction over Ms Monto’s alleged conduct with respect to the meeting with the Board. The Commission’s report states:

The evidence shows that in about September 2004 in a meeting with personal respondent Chrétien and other representatives for the school board and the union, personal respondent Monto described, on record, comments and relationships of a homosexual nature as related to complainant Perron. For example, in her statement personal respondent Monto states, “(Un employé male) a dit a (la plaignante) qu’il a eu des relations sexuelles avec J. Perron. ”

Despite his role as a supervisor to her, the complainant and Ms Monto were co-workers. The meeting with the Board was held to address Ms Monto’s allegations in her union complaint. Ms Monto denies that any of her communications with the Board were made because of the complainant’s sexual orientation, but I am not satisfied that the Tribunal is without jurisdiction to hear the Complaint. The allegation that Ms Monto told the Board that the complainant was gay and that he had sexual relations with a male co-worker brings the Complaint against Ms Monto within the jurisdiction of the Tribunal. A hearing is required to determine whether those comments constitute harassment or the creation of a poisoned environment contrary to the Code. The Complaint against Ms Monto may proceed to a hearing.

17Ms Monto argues that the Complaint is untimely, frivolous, vexatious and in bad faith, and filed as a reprisal. These arguments, and all other arguments concerning her status as a personal respondent, may be raised at the commencement of the hearing.

DIRECTIONS WITH RESPECT TO THE COMPLAINANT’S COMMUNICATIONS TO OPPOSING COUNSEL

18The complainant has made many and repeated allegations of improper conduct against others, particularly against counsel for the respondent union. Of most concern are his letters to respondent counsel, copied to the Tribunal, accusing counsel of making false declarations and lying. It appears that the complainant considers that submissions that express disagreement with his position on the matters at issue in this case are by definition improper. On the contrary, submissions which express opposing positions are proper, provided that the parties treat the Tribunal and each other respectfully.

19It is not appropriate for any party to engage in personal attacks against other parties or their representatives, and to use the Tribunal’s process as a vehicle for these attacks. All parties are reminded of their obligation to treat the Tribunal and the other participants in this proceeding in a respectful manner. Specifically, the complainant is directed to maintain decorum and civility in all his communications to the Tribunal and to the other participants in these Complaints.

20I am not seized.