Ellis v. Ontario Secondary School Teachers’ Federation, 2010 HRTO 2162

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elroy Ellis

Applicant

-and-

Ontario Secondary School Teachers’ Federation and Lori Foot

Respondents

AND B E T W E E N:

Elroy Ellis

Applicant

-and-

Ontario College of Teachers, Brian McGowan and Christopher Sach-Anderson

Respondents

AND B E T W E E N:

Elroy Ellis

Applicant

-and-

Peel District School Board, Judith Nyman, Robert Garton and Doug Stroud

Respondents

interim decision

Adjudicator: Kaye Joachim

Date: October 27, 2010

Citation: 2010 HRTO 2162

Indexed as; Ellis v. Ontario Secondary School Teachers’ Federation

APPEARANCES BY

Elroy Ellis, Applicant ) Self-represented

Ontario Secondary School Teachers’ Federation ) Maurice Green, Counsel and Lori Foot, Respondents )

Ontario College of Teachers and Brian McGowan, ) David E. Leonard, Counsel Respondents )

Christopher Sach-Anderson, Respondent ) Robert J. McComb, ) Counsel

Peel District School Board, Judith Nyman and ) Roy Filion, Counsel Robert Garton, Respondents )

Doug Stroud, Respondent ) Maurice Green, Counsel

1These three Applications involve three sets of respondents, the Peel District School Board (the “School Board”) and employees of the School Board, the Ontario Secondary School Teachers’ Federation (“OSSTF”) and officials of the OSSTF, and the Ontario College of Teachers (the “College”) and its officials. The applicant alleges that these respondents discriminated against him on the basis of race and colour contrary to the Human Rights Code, R.S.O., 1990, c. H.19, as amended (the “Code”).

2This Interim Decision addresses the Requests by the respondents OSSTF and the College to dismiss the Applications against them.

Allegations against the School Board

3In May 2005 the applicant wrote to School Board officials alleging that students at his school were being sexually assaulted by teachers and that the administration was covering up indictable offences.

4The School Board asked for specific information about the alleged sexual assaults and reminded the applicant of his obligation to report such incidents to the appropriate authorities.

5The School Board alleges that the applicant delayed in providing the required information until June 16, 2005 at which time they were able to report the potential sexual assault to the Children’s Aid Society.

6The School Board conducted an investigation into the applicant’s alleged failure to report in a timely fashion, his insubordinate behaviour and his apparent inability to respect the authority of his superiors. This lead to a disciplinary meeting on June 27, 2005 and the suspension of the applicant from work with pay.

7In July 2005 the School Board notified the College of the applicant’s alleged failure to report, insubordination and refusal to recognize authority.

8The applicant alleges that the School Board reported him to the College because he is Black. He points out that White teachers who were present at a January 2005 hockey assault and who did not report the incident were not reported to the College.

9Alternatively the applicant alleges that the School Board reported him to the College as reprisal for his having reported a White teacher in relation to the hockey incident.

10The applicant retained a Black lawyer to assist him in his dealings with the College of Teachers. The applicant alleges that when Judith Nyman, a School Board employee, learned that the applicant would be represented by a Black lawyer before the College, she said to the applicant that if they had known that the Board would have taken even more severe action against him.

Allegations against the College

11The applicant alleges that he advised the College that he would be represented by a Black lawyer and that the OSSTF should not be involved in his case. The applicant alleges that the College spoke with a White OSSTF representative without his knowledge in an attempt to ensure that he could not be represented by a Black representative.

12The College asserts that the allegations against them do not make out a breach of the Code.

Allegations against OSSTF

13The applicant alleges that OSSTF attempted to replace his Black representative with a White representative.

14OSSTF asserts that the allegations against them do not make out a breach of the Code.

Scope of the Applications

15In January 2007 the Registrar of the College amended the complaint against the applicant to include allegations that the applicant’s conduct may be indicative of his suffering from a physical or mental condition or disorder. While this event occurred before the filing of the human rights complaint the Application against the School Board does not refer to this event.

16In April 2007 the College’s Investigation Committee issued a decision for referring the matter to the Fitness to Practise Committee.

17In March 2010 a hearing before the College Fitness to Practise Committee appears to have taken place. The outcome of that Committee is not before me.

18The decision by the College to amend the complaint and refer the complaint to the Fitness to Practice Committee are not before me and do not form the subject of the present Applications.

Dismissal for Delay

19There are allegations set out in the School Board and the OSSTF Applications which I dismissed at the Hearing as being out of time or so lacking in particularity as to prevent the respondents from being able to respond.

20Section 34 of the Code sets a limitation period for bringing applications alleging infringements of the Code:

34.(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

21With respect to the Board complaint,

• The applicant alleges that Ms. Lambert (Vice-Principal) evaluated his performance and later informed him that the Board discarded his excellent evaluations because the Board did not want Blacks to work at Turner Fenton Secondary School. The applicant alleges that Ms. Lambert was approached to do a bad evaluation in order to get rid of him. The applicant alleges that Ms. Lambert refused to comply and Mr. Higgins was given the task of requiring more evaluations of the applicant.

• The applicant alleges that Ms. Lambert advised him to pretend he did not know about the plan to get rid of Blacks and wait until Mr. Higgins asked for further evaluations. The applicant alleges that he followed Ms. Lambert’s advice and when he pointed out to Mr. Higgins that the required number of evaluations had been completed, Mr. Higgins concurred.

• The applicant alleges that when he reported the events described above to an unnamed person at the Board, Ms. Lambert told those officials at the board “who wanted Blacks out” to change the applicant’s status from probationary to permanent immediately or she would be required to officially inform the applicant about discriminatory practices. The applicant alleges that his status was changed without further evaluations. The applicant also alleges that Ms. Lambert also informed him that any paper work that he received from the Board was just a plan to cover tracks.

22These allegations occurred prior to 1999 when Ms. Lambert retired from the Board, approximately 10 years before the complaint was filed in February 2009, Ms. Lambert is now deceased. I asked the applicant to explain the reason for the delay in raising these allegations. The applicant testified that he was afraid to raise these allegations as he feared reprisal from the School Board.

23The applicant may not file an application with respect to events which occurred more than one year prior to the date of the complaint unless the Tribunal is satisfied that the delay was incurred in good faith.

24In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a very high onus on applicants to provide a reasonable explanation for the delay: see, by way of example, Klein v. Toronto Zionist Council, 2009 HRTO 241.

25I am not satisfied that the applicant’s bald allegation of a fear of reprisal amounts to good faith within the meaning of section 34(2) of the Code.

26I dismissed the following allegation on the basis that they were too vague as to permit the respondent School Board to respond. The applicant was asked at the hearing to provide further details and to make submissions whether the allegations should be dismissed.

• The applicant alleges that many teachers who assaulted Black students were not reported because the teachers were White. The applicant alleges that the school and Board did not want to report the level of violence in the school.

27The applicant alleges that Doug Stroud attempted to expel a Black parent in 2004 and that Mr. Stroud encouraged other teachers to treat him unfairly up to 2005.

28The applicant testified that he did not file a complaint against Mr. Stroud earlier because he was afraid of reprisal. These events occurred more than one year prior to the filing of the complaint and I am not satisfied that the applicant’s bald allegation of a fear of reprisal amounts to good faith within the meaning of section 34(2) of the Code.

Failure to make out a breach of the Code

29OSSTF and the College seek dismissal of the Applications against them on the basis that the allegations do not make out a breach of the Code.

30The applicant was invited to testify with respect to his allegations against the College and OSSTF. He testified that he hired a lawyer who is Black to represent him in his dealings with the College. He testified that he advised the College that he was represented by this lawyer and specifically advised them not to deal with any representative of OSSTF. Nonetheless Lori Foot of the OSSTF contacted the College and asked for a copy of the notification letter concerning the applicant. Ms. Foot is White. The applicant believes that the College and OSSTF refused to permit him to be represented by a Black lawyer and chose to deal with a White member of OSSTF as his representative instead.

31The applicant’s evidence and the documentary record before me demonstrate that the College did communicate with Ms. Foot of the OSSTF upon being advised by Ms. Foot that she was assisting the applicant. The College prepared and sent the notification letter as requested. Shortly afterward, Ms. Foot advised that OSSTF was no longer assisting the applicant and the College ceased to communicate with Ms. Foot and the OSSTF. Instead they communicated directly with the applicant.

32The evidence demonstrates that the College communicated with Ms. Foot of OSSTF upon being advised by her that she was assisting the applicant. This does not amount to any form of discrimination against the applicant.

33With respect to OSSTF the gist of the allegation is that Lori Foot of the OSSTF wrongfully communicated with the College about the applicant without his authorization in an attempt to impose a White representative upon the applicant or to prevent him from being represented by a Black representative. Even if Ms. Foot communicated with the College without authorization (which is denied by the OSSTF), this does not establish an intention by OSSTF to foist a White representative upon the applicant.

34The Applications against the OSSTF (TR-0311-09) and the College (TR-0312-09) are dismissed. The Application against the School Board will continue as scheduled.