Gurofsky v. Toronto District School Board, 2010 HRTO 1657

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Helen Gurofsky

Applicant

-and-

Toronto District School Board

Respondent

INTERIM DECISION

Adjudicator: Eric Whist

Date: August 10, 2010

Citation: 2010 HRTO 1657

Indexed as: Gurofsky v. Toronto District School Board

1The applicant, Helen Gurofsky, filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on June 10, 2010. This Interim Decision addresses the applicant’s Request for an Order During Proceedings (the “Request”) to have the Application consolidated or heard together with an earlier Application that the applicant filed with the Tribunal and for the production of documents. This Interim Decision also addresses the respondent’s request for an extension to file a Response to the Application.

BACKGROUND

2The applicant has been an occasional teacher with the respondent, the Toronto District School Board (“TDSB”), since 2001. Occasional teachers carry out short-term and long-term teaching assignments in the absence of a permanent contract teacher. On October 23, 2008, the applicant filed an Application (2008-00620-I) (the “2008 Application”) with the Tribunal alleging that she has been a successful occasional teacher with a favourable performance record, strong qualifications and positive recommendations and yet has been unable to obtain a permanent contract teaching position. The 2008 Application alleges that age has been the deciding factor in the applicant’s failure to obtain a permanent contract teaching job and the Application alleges three instances of this:

1. When the applicant was interviewed in 2007 for a position at Martingrove Collegiate, she was subject to an unsatisfactory recommendation from the vice-principal of the City Adult Learning Centre (“CALC”), Richard Bilkszto. The applicant alleges that Mr. Bilkszto’s poor recommendation was based on his belief that she was too old to be an effective teacher at CALC.

2. Another teacher, aged 35, was hired at CALC notwithstanding that the applicant was more qualified and that this other teacher had been guilty of professional misconduct.

3. The applicant applied for a position at Jarvis Collegiate in 2007 only to learn that the winning candidate for the position was much younger and less qualified than the applicant.

3The hearing of the 2008 Application has begun. Preliminary issues were addressed at a hearing before me on March 8, 2010. The hearing is scheduled to resume October 4-6, 2010 in order to consider the merits of the Application.

4The present Application (2010-05844-I) was filed on June 2, 2010 (the “2010 Application”). This Application alleges that the applicant was discriminated against on the basis of age during two job competitions with the respondent in 2009. One competition was held in September 2009 for a position at West Humber Collegiate, the other in October 2009 for a position at Victoria Park Collegiate. The 2010 Application further alleges reprisal, contending that the 2008 Application was a factor in the applicant not being chosen as the successful candidate in the two job competitions for which she applied in 2009.

THE APPLICANT’S REQUEST FOR THE APPLICATIONS TO BE CONSOLIDATED OR HELD TOGETHER

5The applicant submits that the two Applications are closely related and raise common and overlapping issues of fact and law. The applicant submits that the central issue raised in both Applications is whether the TDSB has a pattern of discriminating against the applicant on the basis of age during its hiring processes. The applicant submits that she will call the same witnesses and rely on the same documentary evidence in both proceedings. The applicant argues that hearing the Applications together will avoid unnecessary expense, inconsistent results and the repetition of similar evidence and would be the fair, just and expeditious way to proceed.

6The respondent opposes the request to have the Applications consolidated or heard together. The respondent submits that this is not a case in which systemic discrimination is being alleged and so the allegations related to each job competition must be heard on their own merits. The respondent submits that the facts of the two Applications are distinct in that the 2010 Application involves job competitions at different schools involving different principals and which occur in a different school year when the hiring needs of the respondent were likely different. The respondent argues that the applicant is attempting to raise the specious issue that there is a pattern of discrimination against the applicant on the basis of age.

7The respondent submits it would be prejudiced if it had to prepare to deal with the 2010 Application at the hearing scheduled for October 4-6, 2010. The respondent notes that it has yet to file its Response to the 2010 Application and accordingly cannot identify witnesses and determine the evidence it will adduce in relation to the 2010 Application in time for the hearing scheduled for October 4-6. The respondent submits that the applicant has also asked for the production of documents in relation to the 2010 Application that the respondent cannot produce in time for the scheduled October hearing.

8The respondent notes that the Ontario Secondary School Teachers Federation (the “Federation”) is named as the applicant’s union in her 2010 Application and submits that if the Federation requests to intervene in the second Application it could unnecessarily confuse the proceedings. The respondent argues that Mr. Bilkszto is also named as a respondent in the 2008 Application and that requiring him to participate in a hearing of both Applications is unreasonable.

Analysis

9Rule 1.7(d) of the Tribunal’s Rules of Procedure states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may consolidate or hear Applications together.

10In Persaud v. Toronto District School Board, 2008 HRTO 25, the Tribunal adopted the decision of the Canadian Human Rights Tribunal in Lattey v. Canadian Pacific Railway, 2002 CanLII 45928 (C.H.R.T.), which set out the factors that should be considered in deciding whether to consolidate or hear proceedings together:

(a) The public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results;

(b) The potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and

(c) Whether there are common issues of fact or law.

11In my view, the Applications should be heard together. I am satisfied that the public interest in avoiding a multiplicity of proceedings, including considerations of expense for the parties, the convenience of the parties, reducing the need for the repetition of evidence, and the risk of inconsistent results are significant factors in favour of hearing these Applications together. I do not see the prejudice to the respondent that would result from holding a single hearing. This is not a matter in which there are multiple respondents with different interests (the personal respondent in the 2008 Application has been removed) and it is only speculation that the Federation may Request to Intervene in the 2010 Application. I note the 35 day time limit for making a Request to Intervene and the Federation was also identified by the applicant in the 2008 Application as her union and it did not request to Intervene at that time. In my view, hearing the two Applications together does not create undue complications.

12I do see that there are potentially common issues of fact and law between the two Applications. I do not agree with the respondent that this is a matter in which it is clear that the applicant is raising distinct and unrelated allegations of discrimination in the two Applications on the basis that they arise from different job competitions. The applicant is alleging that these competitions reflect a pattern of discriminatory treatment by the respondent towards her and the applicant should be allowed to pursue this theory by comparing the facts of the different job competitions she has identified in her two Applications and making related factual and legal arguments. The fact that the 2010 Application also alleges that the applicant was subject to reprisal for filing her 2008 Application further links the two Applications and is another reason that they should be heard together.

13In my view, there is potential prejudice to the respondent if a hearing for both Applications proceeds on October 4-6, 2010. I agree that it would be difficult for the respondent to be ready to proceed by that date given the fact that it has yet to file a Response to the 2010 Application and to prepare its case. Under the circumstances, I will adjourn the October 4-6, 2010 hearing dates to new dates to be scheduled between November 15, 2010 and December 17, 2010 that are, if possible, mutually acceptable to the parties. I am satisfied that this relatively short delay in the hearing process will allow the parties adequate time to prepare for a hearing to consider both Applications. I will provide some direction at the end of this decision about how the parties are to proceed.

THE APPLICANT’S REQUEST FOR PRODUCTION

14The applicant requests that the respondent produce the following documents:

1. Data relating to the successful candidate hired permanently at Martingrove Collegiate in September 2007 including a) the age of successful candidate; b) the number of years he or she has taught; and c) his or her Ontario College of Teacher’s Certificate of Qualification;

2. Data for permanent contract teachers that were filled in the period from June 1 to October 19, 2009 including a) a list of positions filled; b) the age of successful candidates; c) the number of years they have taught; and d) their respective Ontario College of Teacher’s Certificates of Qualification;

3. Panelists’ notes from the interviews for permanent teaching positions at West Humber Collegiate and Victoria Park Collegiate conducted in the Fall of 2009.

15The respondent does not object to these requests for production. The respondent suggests that the first document should have been requested earlier as it pertains to the 2008 Application but that the respondent will produce it as soon as possible. The respondent agrees to produce the second and third documents along with its Response to the 2010 Application. The Tribunal orders the respondent to meet the applicant’s requests as it has agreed to do.

THE RESPONDENT’S REQUEST FOR AN EXTENSION TO FILE A RESPONSE

16In a letter to the Tribunal dated July 23, 2010, the respondent notes that its Response to the 2010 Application was due August 9, 2010 but asks for an extension. The respondent submits that its schools are closed for the summer and the staff who would have knowledge of the events described in the 2010 Application are not available. The respondent further submits that the month of September is the busiest month of the school year for staff. As a consequence the respondent is asking for an extension to file its Response until October 9, 2010.

17The applicant opposes this request stating that she provided a courtesy copy of the 2010 Application to the respondent on June 1, 2010 and that the respondent has been aware of the allegations forming the basis of the 2010 Application as early as February 22, 2010. The applicant contends that, as a consequence, the respondent does not need further time to prepare its Response.

18The respondent’s reqest for an extension to file its Response is allowed, albeit to October 1, 2010 not October 9, 2010. I accept, in general, the respondent’s arguments that the summertime and the month of September create difficulties for the preparation of its Response. Nonetheless, a full two month extension is, in my view, excessive.

TIMING OF THE HEARING PROCESS

19In order to ensure that the revised hearing process takes place in an orderly fashion, I am issuing the following directions.

20The parties will contact the Tribunal by August 25, 2010 to identify dates for which they will be available for the hearing in the period of November 15 to December 17, 2010. The Registrar will consider these dates and will subsequently schedule a four-day hearing. The Tribunal will issue the appropriate Notice of Hearing.

21The applicant will have 14 days after receipt of the respondent’s Response to deliver to the repondent and file with the Tribunal a Repy, if so interested.

22No later than 21 days prior to the scheduled date for the hearing, each party will deliver to the other party, and file with the Tribunal, a list of any new documents that the party plans to rely on at the hearing, a copy of each document on the list (if it has not already been provided) as well as a list of any new witnesses they plan to call at the hearing and a brief summary of their evidence. Documents and witness information provided as part of the initial hearing for the 2008 Application do not need to be resubmitted.

23The parties may jointly request a teleconference with me to address any unresolved issues leading up to the scheduled hearing.