Edwards v. Waterloo Region District School Board, 2009 HRTO 215

Human Rights Tribunal of Ontario

B E T W E E N:

Brian Edwards Applicant

-and-

Waterloo Region District School Board Respondent

INTERIM DECISION

Adjudicator: Mark Hart Date: March 2, 2009 Indexed as: Edwards v. Waterloo Region District School Board

APPEARANCES BY

Brian Edwards, Applicant ) Aaron Wudrick, Counsel ) Grace Skowronski, Student-at-Law

Waterloo Region District School Board, Respondent ) Veronica Kenny, Counsel

Decision

1This is an Application dated September 30, 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 June 5, 2007.

2The Case Resolution Conference in this matter took place on February 26, 2009 to hear the respondent's requests to dismiss the Application for failure to set out a prima facie case and to strike certain paragraphs from the statement of additional facts and remedy filed by the applicant.

3In keeping with the highly expeditious manner in which s. 53(3) applications are to be conducted, at the conclusion of the hearing on February 26, 2009, I issued the following oral decision.

1. The respondent has made a request that this Application be dismissed for failure to set out a prima facie case. This is a circumstantial evidence case alleging that the applicant experienced discrimination because of his race and colour in the selection process for the Resource Scheduler position. In order to make out a prima facie case in the context of a hiring or promotion issue, the case law establishes that an applicant needs to establish that he applied for and was denied the position, that he has a personal characteristic that is identified by a prohibited ground, that he was qualified for the position, and that another candidate was hired who does not share the same personal characteristic.

2. In this case, the applicant has alleged discrimination because of colour on the face of the complaint. The complaint refers to the applicant being denied the Resource Scheduler position and an interview for that position, and alleges "bias" albeit not with an explicit reference to race. The complaint also references the lack of representation of "visible minorities" at the respondent Board and that the "lies used during this posting were to keep us out", referring to himself as a member of the group identified as "visible minorities". The complaint then goes on to state that the job was awarded to a white male whom the applicant believes is less qualified.

3. The respondent contends that the complaint does not explicitly make a link between the denial of the position and the applicant's race or colour. I disagree. I believe that this is adequately articulated on the face of the complaint form, without needing to refer to the explicit statements to this effect now made in the statement of additional facts filed by the applicant.

4. In my view, the applicant has surpassed the low threshold of establishing a prima facie case on the face of his complaint, which in a circumstantial evidence case only serves the purpose of shifting an evidentiary burden to the respondent of coming forward with a credible, non-discriminatory explanation for its actions. I understand that there is an issue in this proceeding as to whether the applicant in fact was qualified for the position, but this is a determination that will need to be made after a hearing on the merits and upon consideration of all of the evidence brought forward by the parties.

5. As a result, the respondent's motion to dismiss the Application is denied.

6. The respondent Board also seeks to strike certain paragraphs from the statement of additional facts filed by the applicant, on the basis that these paragraphs seek to expand the scope of the complaint as originally filed. Following discussion with the parties, it appears that in fact the impugned paragraphs were not intended to expand the scope of the complaint, but merely to set forth pieces of circumstantial evidence that will be relied upon by the applicant in seeking to establish racial discrimination in relation to the Resource Scheduler competition.

7. Specifically, the applicant is not seeking to raise an allegation of "systemic discrimination" beyond seeking to rely upon the lack of representation of members of racialized groups at the respondent Board as supporting that he experienced racial discrimination in the Resource Scheduler competition.

8. In addition, the applicant is not seeking to raise a separate and freestanding allegation that he experienced racial discrimination in relation to his removal from the Structural Foreperson position. Rather, in the event that the evidence indicates that the applicant's experience in the Structural Foreperson position was a factor in the decision not to interview or hire him for the Resource Scheduler position, the applicant seeks to rely upon this experience as further evidence supporting that he experienced racial discrimination in the Resource Scheduler competition.

9. In light of these clarifications, the respondent's motion to strike paragraphs from the statement of additional facts is denied.

10. The applicant has consented to the removal of Cynthia Fletcher as a personal respondent to this proceeding, but nonetheless will be relying upon her actions as a basis for asserting deemed liability by the corporate respondent. As a result, Ms. Fletcher is hereby removed as a party to this proceeding.

4This Application will proceed to the Case Resolution Conference on the merits on May 7 and 8, 2009. All parties have agreed to the bifurcation of the hearing to deal first with the issue of liability and then to address the issue of remedy at a subsequent date if a violation of the Code is found.