HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Roda Abdalla
Applicant
-and-
Toronto District School Board (City Adult Learning Centre), Hazel Lam, Shuman Cheung and Margaret Smyth
Respondents
case Resolution Conference DECISION
Adjudicator: Brian Sheehan
Indexed As: Abdalla v. Toronto District School Board
AppearanceS BY
Roda Abdalla, Applicant ) Cecil Norman, ) Representative
Toronto District School Board ) (City Adult Learning Centre), ) Grant Bowers, Hazel Lam, Shuman Cheung and ) Counsel Margaret Smyth, Respondents )
1This is an Application filed on September 24, 2008 under Section 53 (3) of Part IV of the Human Rights Code R.S.O. 1990 as amended (the “Code”).
2A Case Resolution Conference (CRC) took place on March 10, 2009. At the outset of the proceeding the parties were advised that the hearing would be conducted in an expeditious manner pursuant to the expectations expressed in the Code and the Tribunal's Rules of Procedure.
3The Application filed assertions that the applicant experienced discrimination by the Respondents on the grounds of race, ethnic origin and disability with respect to services.
4The corporate respondent, Toronto District School Board, is the largest school board in the Province of Ontario. It operates the City Adult Learning Centre (CALC) which is a public school providing Grade 9 to Grade 12 instruction for students aged 21 years and older.
5Ed Vance is an alternative school program located in the same building as the CALC which provides an intensive one year program for students aged 18 to 20.
6The respondent, Hazel Lam, was the Vice-Principal at CALC. The respondent, Margaret Smyth, was the Vice-Principal at Ed Vance. The respondent, Shuman Cheung, was a Grade 12 calculus and advanced mathematics teacher at CALC.
7The applicant was a student enrolled at CALC since April 2005. As of February 2006, she had earned nine secondary school credits. At that time she was enrolled in Mr. Cheung’s Grade 12 calculus and advanced functions course. That course commenced on February 6, 2006 and was to run for nine weeks until April 19, 2006.
8This Application is associated with two specific incidents: (1) events that took place in Mr. Cheung’s class on February 21, 2006; and (2) events that took place in the CALC office area on February 22, 2006 and the subsequent action taken by the respondent School Board with respect to the applicant as a result of those events.
Review of the Evidence
Events of February 21, 2006
9The applicant had been experiencing some difficulty in keeping up with the rate at which Mr. Cheung was teaching the Grade 12 calculus course. The applicant had frequently raised concerns about the amount of material that Mr. Cheung was teaching and the speed at which the material was being taught. The applicant and Ms. Shahida Choudary, a classmate, testified that other students in the class beyond the applicant had voiced concerns regarding the rate at which Mr. Cheung was teaching the material.
10On February 17, 2006, Mr. Cheung provided the students in his class with their first test. The applicant at the end of the test complained that there was not sufficient time to complete the test; she also expressed frustration with the amount of material covered by the test.
11On February 21, 2006, shortly after Mr. Cheung began teaching the class he advised the class of the sections that would be covered by the next test that was scheduled for February 23, 2006. That prompted the applicant to speak out that Mr. Cheung was teaching at too fast a rate. The applicant testified that Mr. Cheung reacted angrily by throwing a black marker he was holding towards her. According to the applicant, he then proceeded to slam his chair very hard into his desk. The applicant testified she felt humiliated by Mr. Cheung’s actions.
12It was the evidence of Mr. Cheung that he had became frustrated by the applicant’s repeated interjections complaining about the amount of material being covered and about the speed at which he was teaching. He claimed he dropped his marker and the black cap of the marker fell off and landed in the vicinity of a desk by the applicant. He then pushed his chair into his desk.
13The applicant at the end of Mr. Cheung's class went to the office of Ms. Ulyana Chorniy, the Mathematics Program Leader, to complain about Mr. Cheung's behaviour. Ms. Chorniy and the applicant reviewed what had transpired in the classroom. They also reviewed the material being taught by Mr. Cheung and the questions that formed the basis of the February 17 test. Ms. Chorniy advised the applicant that in her professional view the test was appropriate in terms of the material being evaluated and the difficulty of the questions and the time allotted for the test.
14During that conversation, the applicant advised Ms. Chorniy that she had a learning disability and needed additional time to complete tests because of her disability. Ms. Chorniy advised the applicant she would have to provide medical documentation to support her claim that she needed additional time. It was arranged that the applicant would come and see Ms. Chorniy the following day after the first period of classes so that she could provide medical documentation.
Events of February 22, 2006
15The applicant arrived at CALC the following day on February 22, with a note from Dr. Sameh Hassan. That note advised that the applicant had a “chronic medical illness” and that “due to her illness and treatment she at times is slower than she could be cognitively”.
16The applicant reported to the CALC administration offices prior to the end of the first period of classes. Ms. Chorniy was not available at that time as she was still teaching. It was the applicant’s evidence that she became agitated because a number of individuals wanted her to provide her doctor’s note which she was only comfortable providing to Ms. Chorniy. The applicant then got into a verbal altercation with Mr. Bill Chapp`ell, the Program Leader for Science, Humanities Business and Co-Op at CALC. It was the applicant’s evidence that Mr. Chappell screamed at her uttering profanities which she responded to by uttering profanities of her own.
17The applicant was then spoken to by Ms. Smyth who was called to the office by Ms. Helen Teetsov, Senior Office Assistant, to deal with the situation. It was Ms. Smyth’s evidence that her efforts to calm the applicant down were unsuccessful as the applicant remained agitated and continued to utter profanities. She further testified that she advised the applicant that if her behaviour did not change she would be demitted from the school. With there being no change in the applicant’s behaviour Ms. Smyth informed her that she was being demitted and asked the applicant to leave the premises. The police were subsequently called when the applicant refused to leave the premises.
18Ms. Lam subsequently entered the office area and the applicant asked to speak to her in her office. Ms. Lam advised the applicant that she could not overrule of Ms. Smyth’s decision to demit the applicant since they were both Vice-Principals. Ms. Lam testified that she then advised the applicant that she would have to appeal the decision to demit her to the Principal of the CALC. Following up on that point it was Ms. Lam’s evidence that she wrote the contact info for the Principal on her business card and endeavoured to hand the card to the applicant. The applicant however repeatedly refused to take that card. Ms.Lam testified that upon the police arriving she gave one of the escorting police officers the business card and asked the officer to try and hand the card to the applicant. That police officer subsequently advised her that the applicant would not take the business card. Ms. Lam testified that later that day she found Dr. Hassan’s note regarding the applicant in her mailbox.
19The applicant testified during her conversation with Ms. Lam she handed Dr. Hassan‘s note to Ms. Lam. It was also the applicant’s evidence that she was advised by the police officer that she should not return to the school until she heard from the Principal of the CALC.
20After the incident on February 22, the applicant testified that she made only one attempt to contact the Principal of the CALC. When she was advised that he was not available, she decided to raise the issue of her being demitted with her Trustee.
Findings
21The evidence put forward by the parties establishes that there is no factual basis whatsoever to suggest that the applicant’s race or place of origin had any role regarding the events that took place on February 21 and February 22, 2006. There was no evidence advanced on behalf of the applicant regarding her claim that the respondents discriminated against her on the basis of her race or place of origin. In fact, there was no reference to discrimination on those specified grounds in the closing summations of the applicant’s representative; which in reality was not surprising given the lack of supporting evidence for such a claim.
22Turning to the events in the classroom on February 21, 2006, the evidence does suggest that Mr. Cheung reacted forcefully and directly towards the applicant regarding his frustration at her repeated classroom interruptions. I do not doubt the sincerity of the applicant’s belief that Mr. Cheung was intentionally throwing his marker at her. It is my view, however, that the evidence as a whole does not suggest that Mr. Cheung intentionally threw his marker at the applicant. The better view of the evidence is that Mr. Cheung dropped his marker on his desk in frustration and that the cap of the marker fell off inadvertently towards the vicinity of the applicant. It is noteworthy that Ms. Choudary, the applicant’s classmate who testified on her behalf, was of the view that Mr. Cheung did not intentionally throw his marker at the applicant.
23Moreover, even if I were to find that Mr. Cheung intentionally threw his marker in the direction of the applicant that determination would not have necessarily led to the conclusion that there had been a breach of the Code. A review of the evidence suggests that Mr. Cheung was not aware of any claim of disability by the applicant. The applicant‘s evidence was that the first time she raised the issue of her disability was when she spoke to Ms. Chorniy subsequent to Mr. Cheung’s class. Accordingly, there was no connection whatsoever between the events that transpired on February 21 in Mr. Cheung’s classroom and any disability that the applicant may have or her reporting that she had a disability.
24Turning to the events of February 22, there was little in dispute regarding the basic outline of events that transpired that day. The applicant was at the centre of a verbal altercation with various members of the administrative staff of the respondent School Board. Those altercations ultimately lead to Ms. Smyth’s decision to demit her from the school and the police arriving to escort her off the premises.
25With respect to those areas where there was a divergence in the evidence, it is my determination that the evidence of the respondents’ witnesses is to be generally preferred. The three staff members who testified on behalf of the School Board provided a clear and consistent picture of the events that transpired that day. The same, however, could not be said for the evidence of applicant. For example, a particular contentious point in dispute was whether Ms. Lam advised the applicant she would have to contact the Principal of the CALC to appeal the decision to demit her. The evidence of the applicant was that she was advised by the police officer escorting off the premises that she should wait to hear from the Principal is difficult to accept. Given that the applicant sought out Ms. Lam to discuss Ms. Smyth’s decision to demit her, it would seem highly doubtful in the circumstances that the applicant and Ms. Lam would not have discussed the appeal process during their conversation in Ms. Lam’s office. Additionally, the escorting police officer‘s only source of information would have been Ms. Lam who testified that she expressly and repeatedly told the applicant that she would have to contact the Principal. It is also noteworthy that it was the evidence of the applicant that she initially endeavoured to contact the Principal of the CALC; which is consistent with Ms. Lam’s version of events.
26There was also a dispute as to when and how that day Dr Hassan’s medical note came into Ms. Lam’s possession. The applicant stated she handed the note to Ms. Lam during their conversation in Ms Lam’s office. It was Ms Lam’s evidence that she found the note in her mailbox later in the day. For the purposes of whether there was a violation of the Code by the respondents nothing turns on this particular point of dispute. The key issue is not the circumstances associated with how the respondents became aware of the medical note, but the content of Dr. Hassan’s note. That note indicated that the applicant had a learning disability and requested accommodation with respect to her academic needs. The respondent School Board had indicated through the representations of Ms. Chorniy that it was willing to consider such a request for an accommodation. That was the purpose of the planned meeting on February 22. The fact that meeting never took place because of the altercation that occurred that day does not alter the fact the respondent School Board had indicated that it was willing to discuss accommodating the needs of the applicant.
27Moreover, it would also appear that the learning disability claimed by the applicant was not relevant to the applicant’s behaviour on February 22. Specifically, the applicant’s behaviour on that day was not connected in any way to her disability. That purported disability did not cause, nor was it a contributing factor, in her behaviour. The School Board, therefore, was not under any obligation to make accommodation for that behaviour on account of a disability. The absence of the connection between the disability and the applicant’s behaviour suggests that the respondents’ actions do not have to be judged through a prism of whether their actions violated the Code. On this point it is not necessary to evaluate the appropriateness of Ms. Smyth’s decision to demit the applicant since that action was not related to any disability suffered by the applicant.
28Finally, consideration is given to whether the respondents had a positive obligation to act when they became aware of the contents of Dr. Hassan’s note. In particular, did the respondent School Board or any of the individual respondents upon reviewing Dr. Hassan’s note subsequent to the applicant leaving the premises have an obligation to alter their course of action? Even if it could be suggested that in certain circumstances a school board may have a positive obligation to act in light of becoming subsequently aware that a student who it has taken disciplinary action against suffered from a disability, the particular facts of this case do not support the imposition of such an obligation. As found above, the disability claimed by the applicant did not relate to the events of February 22, 2006 and the decision to demit her. Furthermore, the respondent School Board, through the representations of Ms. Chorniy, had indicated that it was willing to discuss accommodating the applicant, in terms of her educational needs, in light of any learning disability. The responsibility that those discussions never took place does not, in my view, lie with the respondents.
29For the above reasons, the Application is dismissed.
Dated at Toronto, this 22nd day of May, 2009.
“Signed by”