Bruce v. Greater Essex County District School Board, 2010 HRTO 1024

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kenneth Bruce

Applicant

-and-

Greater Essex County District School Board and Robert Colak

Respondents

INTERIM DECISION

Adjudicator: Mary Truemner

Date: May 14, 2010

Citation: 2010 HRTO 1024

Indexed as: Bruce v. Greater Essex County District School Board

1The applicant filed an Application on March 19, 2009 (the “s.34 Application”), under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). It alleges reprisal contrary to the Code on the basis of incidents in February 2009 which were related to Applications he previously filed in 2008 (the “2008 Applications”), alleging discrimination in employment.

2This Interim Decision will deal with the applicant’s Request to add parties to the s.34 Application and with the respondents’ Request to dismiss the s.34 Application early.

Background

3The s.34 Application alleges that Mr. Colak, the principal of Western Secondary School, "had delivered, by Sgt. Paul Smith of the Amherstburg Police Service, a letter dated February 2, 2009." The s.34 Application alleges that this trespass letter was a reprisal for the applicant having claimed his rights under the Code and for him having started or taken part in a human rights proceeding in the context of the 2008 Applications. The trespass letter is signed by the principal of Western Secondary School, and advises the applicant that he is no longer permitted on the School’s property. (The applicant had previously attended on the School’s property to serve one of the personal respondents, a teacher, in connection with the 2008 Applications).

4The s.34 Application alleges that Sergeant Smith, while at the applicant’s home, called the applicant at work to warn him not to return to the school, and not to contact the school or the teacher who was the personal respondent in the 2008 Applications.

Adding Parties

5The applicant filed a Request for Order During Proceedings to add Sergeant Paul Smith and the Amherstburg Police Service as parties to the s.34 Application. In support of his Request, the applicant argues that Sgt. Smith was acting as an agent for the respondents when he delivered the trespass letter from the school. The applicant also argues that the respondent school board “may or may not be responsible for his [Sergeant Smith’s] actions and therefore there is an issue whether or not the respondent school board can be responsible for non board employees’ actions and a question as to what ability they have to take remedial action to rectify the situation.” The applicant argues that Sergeant Smith's conduct will be a central issue and it may be appropriate to award a remedy specifically against him. His reasons also state that the Amherstburg Police Service is the corporate controlling entity with the authority and ability to institute any remedial orders of the Tribunal.

6The respondents take the position that adding Sergeant Smith and the Amherstburg Police Service as parties might assist the proceedings.

7The applicant and the respondents filed proof that they delivered to the proposed additional parties the Request to add parties and all pleadings exchanged between them, but the Tribunal has not received submissions from the Amherstburg Police Service or from Sergeant Smith.

8The Tribunal’s test for adding parties focuses on a primary test: Are there allegations made that, if true, could support a finding that the proposed respondents violated the Code? See Greenhorn v. 621509 Ontario Inc. (Belleville Dodge Chrysler Jeep), 2006 HRTO 22, Smyth v. Toronto Police Services Board, 2009 HRTO 1513, and Smith v. Peel Regional Police Services Board, 2009 HRTO 742.

9At the outset, then, the allegations made in the s.34 Application, if true, must be able to support a finding that the Code was infringed. The alleged infringement is reprisal contrary to s. 8 of the Code:

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

10In Jones v. Amway, [2002] O.J. No. 1504, the Divisional Court held that to make out the ground of reprisal the appellant needed to establish that the respondent intended to reprise. See also Metcalfe v. Papa Joe's Pizza & Chicken Inc., 2005 HRTO 46. The applicant does not make any submissions that the proposed respondents intended to reprise. He makes no claim that the proposed respondents even knew that he had filed human rights applications and that he had visited the school in order to claim and enforce his rights, or to participate in proceedings under the Code. The allegation that Sergeant Smith acted as an agent for the existing respondents to frustrate the applicant’s attempts to communicate with a teacher at the school, even if true, cannot support a finding that the proposed respondents violated the Code because there is no allegation that they intended to reprise.

11The applicant’s Request to add Sergeant Smith and the Amherstburg Police Service as respondents is denied.

Early Dismissal

12The respondents request the early dismissal of the s.34 Application on the basis that the applicant had sought to add the same reprisal allegations to his 2008 Applications, and the s.34 Application is therefore barred under s.53(5) and s.53(8). They argue that the reprisal allegations are now moot because the Case Resolution Conference Decision, 2010 HRTO 261, dismissed the 2008 Applications for delay.

13The applicant's allegations of reprisal involved incidents in 2009, years after the incidents described in his 2008 Applications. Prior to the hearing of the 2008 Applications, the Registrar-Transition wrote to the parties on February 17, 2009 and stated:

The Tribunal acknowledges receipt of the applicant’s request for an order during proceedings, seeking to add allegations of further breaches of the Code, including reprisal allegations. The respondents are not required to respond to this request for an order at this time. The Tribunal will first determine the requests for early dismissal at the scheduled Case Resolution Conference and will issue further directions regarding the applicant’s request at or after that time.

14The Case Resolution Conference Decision dealt only with the issue of whether the 2008 Applications were out of time. It did not deal with whether reprisal allegations should be added to the 2008 Applications. It merely referred to the applicant's unsuccessful contention that continuing reprisals constituted a reasonable explanation for filing his complaint at the Ontario Human Rights Commission late:

I am also of the opinion that the applicant's contention that there have been continuing reprisals does not constitute a reasonable explanation for filing his complaint at the Ontario Human Rights Commission in 2007, almost 4 years after his employment was terminated. The question at issue is whether there was a series of incidents between October 24, 2003 and April 24, 2007 when the human rights complaint was filed at the Commission which delayed the applicant from filing his complaint within the one-year limit. There is no evidence that there were. The incidents the applicant now seeks to rely on to explain that delay between 2004 and 2007 all occurred in 2009. They cannot be used as a justification for late filing.

15I do not find that such treatment by the Tribunal of the applicant's allegations of reprisals results in his s.34 Application being barred under sections 53(5) and 53(8) of the Code.

16The respondents’ request to dismiss the s.34 Application early is dismissed. The respondents must file with the Tribunal and deliver to the applicant a full Response to the s.34 Application within 35 days of the date of this Interim Decision.

17I am not seized.