Oscar Correia v. York Catholic District School Board, 2010 HRTO 1963

Human Rights Tribunal of Ontario

Between:

Oscar Correia Applicant

-and-

York Catholic District School Board Respondent

Interim Decision

Adjudicator: Mark Hart Date: September 27, 2010 Citation: 2010 HRTO 1963 Indexed as: Correia v. York Catholic District School Board

Written Submissions By:

Oscar Correia, Applicant ) Allison Taylor, Counsel York Catholic District School Board, Respondent ) John W. Woon, Counsel

1This is an Application filed June 30, 2009, under section 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2This Interim Decision deals with the Request for Order filed by the respondent, dated June 28, 2010, seeking production of documents and requesting an order striking certain paragraphs from the applicant's Statement of Additional Facts. I will also address certain case management matters.

Production of Documents

3The respondent sought production of documents concerning the applicant's employment with the Waterloo Catholic District School Board ("WCDSB") and his employment with the Lac La Croix First Nation and the Indigenous Education Coalition, as well as the applicant's employment records elsewhere in 2006 and 2007. The respondent also sought production of documentation relating to the applicant's Ontario Teachers' Pension Plan situation, including his claim for a "buy back" of his pension, and documentation to support his claims for salary differential for the school years from 2006-2007 to 2012-2013.

4In response, by letter dated July 12, 2010, the applicant made further disclosure. The applicant takes the position that this further disclosure satisfies the request for production made by the respondent.

5The respondent takes the position that the applicant has only provided some of the documents requested. In particular, with regard to the applicant's employment with the WCDSB, the respondent states that the applicant has only provided a copy of his employment contract dated June 27, 2005 and his employment termination agreement dated August 1, 2006. The respondent states that there must be other documents concerning the applicant's work performance and events leading up to his termination, and such documents have not been disclosed.

6I am not satisfied that the documents sought from the applicant's employment with the WCDSB are arguably relevant to the matters at issue in this proceeding. This case relates to the applicant's allegation that he experienced discrimination because of colour, ethnic origin, place of origin, race, reprisal and sex in relation to two job competitions for Superintendent positions with the respondent Board that were posted in July 2006 and in May 2007. The respondent's position is that the interview process in these competitions was based upon a structured interview and that the successful candidates had greater experience and qualifications than the applicant.

7In my view, the determination as to whether the applicant experienced discrimination as alleged will depend upon what happened in the competition processes for these Superintendent positions, whether the applicant can establish a prima facie case of discrimination in relation to these competitions, and if so, whether the respondent Board can establish a legitimate, non-discriminatory explanation for its decisions that is more credible than an inference of discrimination. The determination of these issues will hinge upon what information or material was provided to the respondent Board in the course of the competition process, and why the respondent made the decisions that it did.

8There is no evidence before me to indicate that as part of these competition processes, the respondent Board requested that the applicant submit the material regarding his employment with the WCDSB that has been requested or that such documentation was taking into account in the assessment process. Accordingly, I do not find that such documentation is arguably relevant to the matters at issue in this proceeding, and I decline to order production of such documentation.

9The remaining documentation sought by the respondent relates to the applicant's claims for remedy. It is not clear to me whether this request has now been satisfied by the material disclosed by the applicant, as this material is not addressed in the reply submissions filed by the respondent. In any event, as discussed below, the Tribunal is proposing that this matter be bifurcated so that the hearing will first determine whether there has been a violation of the Code, and then at a subsequent time address the issue of remedy if a violation is found. This is addressed under Case Management, below. If the hearing is bifurcated in this manner, the respondent's request for documentation relating to the remedy sought would be premature.

Applicant's Statement of Additional Facts

10The respondent objects to statements made by the applicant in paragraphs 2, 4 and 5 of his Statement of Additional Facts as being precluded by this Tribunal's previous Interim Decision in this matter dated December 15, 2009: 2009 HRTO 2177. In that decision, the Tribunal held that this Application would proceed only on the matters related to the 2006 and 2007 applications. The impugned paragraphs from the applicant's Statement of Additional Facts relate to events preceding the 2004-2005 school year, during which time the applicant alleges that his efforts to become a principal were "stymied" by the respondent Board, that he was given a principalship only to "get rid of him", and that he was repeatedly passed over for promotion into a principalship, and also relate to certain events from 2002.

11In turn, the applicant relies upon the statement in this Tribunal's prior decision that the applicant's earlier discrimination claims may be relevant in the context of the allegations relating to the 2006 and 2007 competitions, but only by way of background information.

12In my view, the statements made in the applicant's Statement of Additional Facts go beyond merely providing background information. It is one thing to state the fact that the applicant applied for principal positions with the respondent Board and was unsuccessful until he obtained the acting principal position in 2004-2005. It is quite another to allege that the applicant was "stymied" and "repeatedly passed over" by the respondent Board and that he was given an acting position solely to "get rid of him". In my view, raising these allegations in the Statement of Additional Facts goes beyond background information and in reality constitutes an attempt to put in issue the very allegations that this Tribunal determined it would not consider.

13I have the same comments with regard to the allegations in paragraphs 4 and 5 of the applicant's Statement of Additional Facts, relating to events from 2002. Paragraph 4 states that in 2002, the applicant raised an objection to a teacher praying in Italian before the beginning of a curriculum council meeting and that he was involved in diversity initiatives, and alleges that these activities contributed to his exclusion from senior positions at the respondent Board. Paragraph 5 alleges that the applicant was placed on the elementary principal's short-list in 2002 only after he complained about systemic discrimination. Once again, these are allegations beyond what the Tribunal determined it would consider in this Application, and go beyond mere background information.

14Accordingly, the respondent's request to strike paragraphs 2, 4 and 5 of the applicant's Statement of Additional Facts is granted, with the exception of the first sentence of paragraph 2 and the factual statement in the second sentence of paragraph 2 regarding the applicant's assignment to an acting principal position to assist him in obtaining a supervisory position with the WCDSB the following year. The applicant shall serve and file an amended Statement of Additional Facts in accordance with this Decision within 14 calendar days of the date of this Decision.

Case Management

15As stated above, the Tribunal is proposing that this matter be bifurcated so that the hearing will first determine whether there has been a violation of the Code, and then at a subsequent time address the issue of remedy if a violation is found. If either party objects to bifurcation, they shall advise the Tribunal and the opposing party in writing within 14 calendar days from the date of this Interim Decision, together with their reasons.

16The hearing in this matter is scheduled to proceed on November 15, 2010. By no later than October 26, 2010, the parties are to serve and file a list of witnesses, a description of what each witness will say, and a list of all documents they intend to rely upon, and are to file with the Tribunal a copy of all documents they intend to rely upon. In this last regard, I note that a significant volume of documents already has been filed by the applicant, and these documents do not need to be re-filed.

17By no later than October 26, 2010, the Tribunal directs the applicant to serve and file a complete statement of all of his evidence relating to the 2006 and 2007 competitions, and in particular all of his evidence as to why he believes that he experienced discrimination because of colour, ethnic origin, place of origin, race, reprisal and sex in relation to these two competitions. While the applicant is not precluded from making reference to earlier events relating to the respondent Board, any such evidence shall be by way of background only. If the applicant intends to call any other witnesses in support of his Application, he shall also serve and file by that date a complete statement of all of the evidence that each of these witnesses proposes to provide.

18By no later than October 26, 2010, the Tribunal similarly directs the respondent to serve and file a complete statement of all of the evidence from the witnesses it proposes to call. This material shall include a complete statement of evidence from one or more of the interview panel members for each of the two competitions, setting out the selection process and criteria for these competitions, and the basis upon which the panel selected the successful candidates over the applicant. The respondent has stated that it used a structured interview process in these two competitions. The interview questions and the interview notes of the panel members have not yet been filed with the Tribunal. If the interview process involved assigning marks for the candidates' answers to the questions asked at the interviews, the statements of evidence filed by the respondent shall include evidence as to why the successful candidate and the applicant were awarded the marks assigned by the panel in response to each question. At a minimum, the respondent Board is directed to file with the Tribunal all documents from the 2006 and 2007 competitions relating to the assessment of the successful candidates and the applicant, including the interview questions, the notes made by the panel members, and any marks or score awarded by the panel members.

19I am not seized of this matter.