HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Theresa Sutherland
Applicant
-and-
District School Board Ontario North East
Respondent
-and-
Wahgoshig First Nation
Intervenor
A N D B E T W E E N:
Diane Plourde
Applicant
-and-
District School Board Ontario North East
Respondent
-and-
Wahgoshig First Nation
Intervenor
interim DECISION
Adjudicator: David Muir
Indexed as: Sutherland v. District School Board Ontario North East
1These Applications were filed in June 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The parties agreed that it would appropriate to process the Applications together.
2The Wahgoshig First Nation (“WFN”) filed a Request to Intervene which was granted.
3The respondent has filed a Request for Order During Proceeding (“Request”) seeking the dismissal of aspects of these Applications that it states are alternatively out of time, or are an improper expansion of the scope of the human rights complaint underlying them.
4The human rights complaints (“complaints”) underlying these Applications were filed with the Ontario Human Rights Commission (the “Commission”) in May 2008. The applicants each self identify as members of First Nations. The complaints are similar in that they each contain allegations that the applicants were removed from their positions as educational assistants for discriminatory reasons in November 2007. The complaints also each contain allegations that the applicants were improperly assigned duties outside of their job descriptions because of their race and ethnic origins.
5The complaints also state that the removal of the applicants from their positions in November 2007 took place in a poisoned work environment, and although this is more clearly articulated in the complaint underlying TR-0864-09, each contains specific examples of such incidents which it is claimed created such an environment for the applicants as follows:
TR- 0637-09
a. The applicant alleges that in 2005 an aboriginal student lost his father suddenly. The applicant alleges that he was told by a teacher to remove a bandana he was wearing in his father’s memory. The applicant alleges that when other students at the school have experienced a tragedy the school has provided counseling to assist the students.
b. The applicant alleges that in 2000/2001 an aboriginal student was in a fight with a non-aboriginal student. The applicant alleges that the aboriginal student was called into the school office and intimidated by the OPP. The non-aboriginal student was not treated in the same way and the applicant alleges that she was not given the opportunity to call the student’s parents to notify them that the OPP would be involved.
c. The applicant alleges that during the school year 2005/2006 while on a field trip Mr. Van Cleef in response to some noise making by the aboriginal students said to them “what do you think this is, a pow-wow”..
TR-0864-09
d. The applicant alleges that in October 2007 an aboriginal student told her that one of his teachers was constantly telling him “ you can not do anything.”
6The applicants’ Statement of Additional Facts alleges that they witnessed differential treatment of aboriginal students in relation to the presence or perceived presence of head lice:
a. The applicants alleged that in multiple years the applicants witnessed that the Aboriginal students would be checked for head lice before other students.
b. The applicant in TR-0864-09 alleges that in the 2006/2007 school year that an aboriginal student with lice whose parents could not be reached to pick her up was treated differently than a non-aboriginal student in the same circumstances. The applicant alleges that the non-Aboriginal student was allowed to return to class while the non-aboriginal student was required to stay out in the hall.
c. The applicants allege that in the Fall of 2007 a group of students including both Aboriginal and non-Aboriginal students were playing in the hallway. The applicants allege that when approached by a teacher, the two groups of students were treated differently. The applicants allege that the Aboriginal students were forced to line up against the wall and were called losers by the teacher. The non-aboriginal students, it is alleged, were allowed to go on their way.
d. The applicants allege that in 2003/2004 an Aboriginal student in Grade 3 or 4 had forgotten to bring in her homework. The applicants allege that the teacher reacted by slamming down the desk top of the student’s desk almost catching her fingers. The applicants believe that this teacher did not treat non-Aboriginal students in a similarly aggressive manner.
7The respondent states that the allegations set out in paragraphs 5(a), (b) and (c) as well 6 (a), (b), (c) and (d) should be struck or dismissed because they fall outside of the time limits prescribed in section 34 of the Code. The complaints were filed on May 21, 2008 and, accordingly, any allegation occurring prior to May 21, 2007 is out of time. The respondent further states that the academic year 2006/2007 ended on June 29, 2007 and accordingly all of these allegations occurred outside of the one year time period for filing a complaint.
8The respondent further states that the allegations do not constitute a series of incidents that culminated in the termination of the applicants’ educational assistant positions but rather they are a set of separate incidents of alleged discriminatory treatment involving individuals other than the applicants.
9The respondent also states that even if in some sense related to each other, the lengthy passage of time between some of these events is sufficient to interrupt the series. The respondent states that the limitation provision in the Code “demonstrates an implicit recognition that at the very least the “series” does not continue beyond the time allotted for filing an application”.
10The applicants state that the allegations that the respondent claims are untimely are plead by them to demonstrate a pattern of discriminatory conduct that “ultimately created or contributed to a poisoned work environment”. The applicants state that their removal from the School on November 26, 2007 constituted discrimination under the Code for which the applicants seek a remedy. The applicants state that in order to understand why this action amounted to racial discrimination requires “an understanding of the poisoned work environment within which the applicants were working.”
11The applicants state that the existence of a poisoned work environment can create tension in the workplace and may result in a dismissal. In such a case the dismissal itself is an infringement of the Code. The applicants state that it is therefore necessary to lead evidence about past discriminatory conduct within the school to establish that they were working in and subject to a poisoned work environment. The applicants state that they do not rely upon these allegations to found liability but to provide “a context for understanding why the applicants’ removal from the School was an infringement of the Code.” The applicants also state that where an applicant has sought a remedy for discrimination arising in the context of an allegedly poisoned work environment, she must be able to introduce evidence about incidents that have taken place throughout their whole period of employment.
12The applicants state that the allegations that the respondent complains of are a series of incidents within the meaning of section 34(1) in that they allege a pattern of conduct – the applicants’ experience of discrimination against themselves and others as Aboriginal or First Nations persons.
13The applicants state that the gaps in time between the various incidents are in most cases less than a year. The applicants state that, given their thematic connection, it is proper that the Tribunal consider them all.
14The applicants also state that the new allegations contained in the Statement of Additional Facts are not an improper attempt to expand the scope of the complaints but reiterate their position that these allegations all relate to their allegation that the workplace was “poisoned” which forms a backdrop against which their removal from the School is properly understood.
15The applicants state that the delay, if there is any with respect to any of the allegations, was incurred in good faith because the claim only arose when they were removed from the School in November 2007. The allegations are part of the factual evidence required to establish that the applicants’ working environment was poisoned.
16The applicants state that the respondent cannot be prejudiced because the applicants promptly filed their complaint after their removal from the School. In their complaints they raised the issue of a poisoned work environment and accordingly the respondent has not been deprived of its ability to investigate all of these issues.
17As indicated above, the complaints were filed in late May 2008 and relate primarily to the applicants’ removal from the School in November 2007. The applicants also assert in their complaints that their working environment was poisoned by inappropriate treatment of First Nations students by other staff at the School:
- (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.
18I accept the applicants’ position that it should be open to them to argue that their removal from the School can only be properly understood in the context of an allegedly poisoned work environment. I also accept that evidence of discriminatory conduct towards other racialized individuals in a workplace may be material to such an argument. I therefore accept that all of the new allegations, including some that are significantly dated, are thematically related to each other and in that sense might be considered to be a series of incidents.
19In this regard I do not agree with the respondent that any of the allegations are an attempt to expand the scope of the complaints to include systemic issues of discrimination against First Nations persons in the schools of the respondent Board. These Applications relate to the treatment of the applicants and nothing else. To the extent that allegations of discriminatory conduct in relation to other individuals are included in these Applications, they are material only to the allegation that the applicants’ removal from the school was the culminating incident in the allegedly poisoned work environment.
20However, I do not agree that because the applicants allege that their removal from the school was the culminating incident of a number of alleged incidents creating a poisoned work environment that the time limits in section 34 do not apply. For the reasons that follow I find that the allegations said to have occurred prior to May 2007 are out of time unless they can be seen as a series of incidents within the meaning of section 34(1). I am also not satisfied that all of the allegations in the complaints and Statement of Additional Facts are a series of incidents within the meaning of the section. I make this finding based on their timing, not their substance. I agree with the respondents that there is a clear legislative expression of intent in section 34 that human rights complaints ought to be brought expeditiously and that significant gaps in time between alleged incidents in a series will interrupt the series.
21I do not agree with the applicants’ position that where a poisoned work environment is alleged that the time limits in the Code are in effect suspended. There is nothing in the language that suggests that this is the case. The overarching intent of the section has to be in large part to ensure fairness between the parties, both in ensuring that these allegations are brought forward expeditiously, and equally that respondents need not respond to allegations from the distant past. I do not see that legislative balancing being undone simply because what is alleged is a poisoned environment or where as in the case the applicants state that they are not seeking a remedy for the otherwise untimely allegations but only relying on them to establish the poisoned environment that ultimately culminated in their removal. It is inherently unfair to have to respond to allegations that are very dated, no matter what purpose their being tendered is intended to serve.
22The language “series of incidents” recognizes that it is in the nature of human rights claims that it will often not be possible to identify discriminatory conduct based on one incident. The language in section 34(1) provides for the flexibility to accommodate that reality but at the same time requires that the claim be brought forward reasonably quickly once the discriminatory conduct can be identified.
23The Tribunal has also determined that the logic of the section suggests that the gap between incidents in a putative “series” may be as much as a year, but rarely if ever longer than that. Depending on the nature of the allegations it might be shorter. The common sense meaning of a “series of incidents” suggests a number of related or similar events occurring in temporal order or succession. It is not clear to me that incidents occurring 12 months or more apart can be said to be occurrences in temporal order or succession except in unusual circumstances. This is no less so when the claim is that the incidents created a hostile or poisoned environment.
24In this regard, while the applicants state that the incidents relied on occurred in most cases within a year of each other, the lack of particularity of many of the allegations makes it impossible to state precisely what gaps in time exist between some of them. I note that the allegation in paragraphs 5(b), 5(c) and 6(d) are said to have occurred at some point during the academic years 2000/2001, 2005/2006 and 2003/2004 respectively. The allegation in paragraph 5(a) is said to have occurred in 2005.
25The complaints were filed in May 2008. The allegations at the heart of the complaints occurred in November 2007. The allegations in paragraphs 5(d) and 6(c) above are said to have occurred in October 2007 in the days or weeks just prior to the culminating event – they are timely and as indicated earlier are not an improper attempt to expand the scope of the Applications.
26The allegations in paragraphs 5(b) and 6(d), said to have occurred in 2000/2001 and 2003/2004 respectively, are out of time in that they bear no temporal relation to the other allegations in the complaints or in the Statement of Additional Facts.
27Some of the remaining allegations may be timely in that they might have occurred in a reasonable temporal relation to the timely allegations. At this point, there are no allegations at issue here prior to October 2007 with sufficient particulars to make that determination. It is possible that some or all of the outstanding new allegations are timely in that they are in temporal relation to the events of October and November 2007, however that is impossible to determine at this stage.
28The respondent had sought in the alternative to its Request to dismiss or strike the untimely allegations, that the applicants be directed to provide particulars of all the allegations set out in paragraphs 5 and 6 above. The applicants have consented to provide particulars to the extent that they are able to do so, but indicate that some of what is requested may not be available to them. The applicants also state that they will need to make enquiries of the students and former students (or their parents) to ascertain the extent to which these individuals will want to be identified. If the applicants are not able to obtain further particulars of some of these allegations it is not at all clear how the respondent can be expected to respond to them or indeed why they should be expected to.
29In order to ensure the fair, just and expeditious resolution of this preliminary issue as well as the merits of these Applications the Tribunal makes the following directions:
With respect to each of the allegations set out above that I have not concluded is untimely, the applicants will, to the extent they are able, provide particulars as follows:
a. The names of the student, Board employee, parents or other persons implicated in the allegation;
b. The date or dates of the alleged incidents as well as the date or dates when the alleged incidents came to the attention of the applicants;
c. The dates and circumstances in which these allegations were brought to the attention of the respondent prior to filing of the complaints underlying these Applications;
d. Where and to the extent the applicants are unable to provide the particulars required above, they will indicate whether and to what extent they continue to rely on the allegation.
e. The applicants will provide these materials and submissions as necessary within 60 days of the date of this Interim Decision.
f. The Tribunal will issue a final determination on this Request upon receipt of these materials.
30I am not seized.
Dated at Toronto, this 16th day of November, 2010.
”signed by”____________
David Muir
Vice-chair