Schram v. Avon-Maitland District School Board, 2010 HRTO 24

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jerry Schram

Applicant

-and-

Avon-Maitland District School Board and David MacLennan

Respondents

case Resolution Conference DECISION

Adjudicator: David Muir

Date: January 6, 2010

Citation: 2010 HRTO 24

Indexed as: Schram v. Avon-Maitland District School Board

AppearanceS BY

Jerry Schram, Applicant ) Cezanne Charlebois,

) Counsel

Avon-Maitland District School Board and ) Barry J. Brown,

David MacLennan, Respondents ) Counsel ) )

1This is an Application field on December 19, 2008 pursuant to section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleged in the human rights complaint forming the subject matter of this Application that his right to be free of discrimination in employment on the basis of disability and age has been infringed by the respondents.

2The applicant formerly a school teacher with the respondent school board alleges the he was singled out for discriminatory treatment by the respondents on the basis of his age, disability and a perceived disability. In this latter regard the applicant alleges that he was perceived to be a pedophile and as a result was subject to discriminatory treatment at the hands of the personal respondent and the board. The applicant alleges that he was subject to subtle ageist treatment by the respondents in the form of increased scrutiny of his behaviour and performance as well as not so subtle suggestions that he should retire. The applicant also alleges that he was treated differently than other staff who have taken leaves of absence for medical reasons. The particulars of these allegations are as follows:

a. The applicant alleges that in September 2005, he was falsely accused of having an open bottle of beverage alcohol in his classroom.

b. The applicant alleges that in September 2005, he was singled out for interrogation about an incident from a prior year, regarding an incident with a student.

c. In November 2006, the applicant alleges that he was accused by his principal of being “too friendly” with a student. The applicant alleges that other staff had been seen hugging students with no consequences for them. This incident was documented by letter.

d. In November 2006, the applicant alleges that the he was improperly chastised by the principal for the choice of a caption “bullying sucks” by his students. This incident was documented by letter.

e. In February 2007, the applicant alleges that he was falsely accused by his principal of failing to properly supervise students practicing their instruments in the hallway on a day when he was not present in the school. The applicant alleges that on his return to work, he noted that students were practicing their instruments in the hallway unsupervised but that no disciplinary action was taken against their teacher.

f. In February 2007, the applicant alleges that he was accused of being sarcastic when speaking to students.

g. The applicant alleges that over the school year he was accused of not getting along with fellow teachers. There was an issue concerning the proper way for students to enter the school. The applicant alleges that he was told that his idea (that they should enter as a class in an orderly manner) was old fashioned and that he should develop new up to date ideas.

h. The applicant alleges that he was required to seek medical assistance and was ordered by his doctor to take a stress leave in March. The applicant alleges that he told his principal that he would be returning on April 15 but by April 4 his classroom was emptied of all his personal belongings. The applicant alleges that he was told that he should not enter the building without permission and that a colleague was told by the principal that he would not be returning to the school that year.

i. The applicant alleges that while he was on sick leave: his name was removed from his mailbox, his internet access was reduced, he was not invited to the grade 6 graduation ceremony, he was given an administrative transfer, and he received a last minute invitation to a board retirement party.

3A Case Resolution Conference or hearing was held in this Application on November 23 and 24, 2009 in London, in accordance with the expectation set out in the Tribunal’s Rules for Transitional Applications that these cases be adjudicated in an expeditious manner. The parties had provided comprehensive will-says prior to the hearing and on consent the will-says were entered into evidence as the examination in chief for all of the witnesses. I heard further oral evidence from the applicant and the personal respondent as well as from Ron Wood and Maxine Brush.

4The Application is dismissed there being no evidence to support the allegations that the applicant was subject to differential treatment on the basis of age, disability, or a perceived disability.

5At the outset of the hearing the respondents brought a motion to dismiss the Application on the basis that the pleadings, that is that human rights complaint and statement of additional facts, disclosed no prima facie case. I dismissed the motion and proceeded to hear the evidence.

6The applicant taught with the respondent school board for 32 years. Based on the evidence, I heard he was a good teacher who engaged his students both in and out of the classroom. He was very involved in a number of extra-curricular activities and is justifiably proud of his accomplishments as a teacher.

7The applicant testified that he began to be treated for depression a year or two prior to September 1, 2005. He did not formally advise anyone at the school and in fact it appears that there would not have been any reason for the respondents to have been aware of the applicant’s medical concerns prior to his taking a medical leave in late March 2007.

8The personal respondent became principal of the Bedford school where the applicant had taught for many years, in September 2005. Prior to taking up the position of principal, the personal respondent was briefed on issues in the school by the Superintendent. An issue described by the Board as behaviours or interactions with young female students which could be perceived as grooming behaviour was identified as something that should be raised with the applicant.

9The term “grooming behaviour” was used by the Board to describe behaviours of adult teachers that might be perceived as being intended to groom students for future inappropriate relationships with the teacher. Although its meaning is more or less evident, I note that personal respondent had never heard the term before, nor had the applicant.

10It had been the intention of the respondents to convene a meeting including the applicant, the superintendent and the personal respondent on September 14, 2005 but for reasons that were not entirely clear that meeting did not take place. Rather, the personal respondent, the Vice Principal of Bedford, and the applicant met on September 1, 2005 before the start of the school year.

11The personal respondent described this meeting as an attempt to head off the need for the meeting with the Superintendent. He also stated that he hoped that by raising these issues prior to the school year it would prepare the way for the applicant to have a successful year. At this meeting the school administrators raised two incidents from the prior year which the Board saw as being behaviour that could be perceived as so-called grooming behaviour. It was the impression of the personal respondent that the applicant understood the gravity of the Board’s concerns and would govern his interactions with students accordingly. This did not turn out to be the case.

12Contrary to the initial impression of the respondents, after the September 1, 2005 meeting the applicant testified that he did not understand the Board’s concern and stated that he wondered why the Board would be raising issues from “two or three years prior”. He testified that it only slowly dawned on him after similar concerns about other incidents were raised with him over the ensuing year or more which caused similar concerns for the Board. It was his evidence that the respondents thought, without justification, that he was a pedophile and would hurt the children.

13Contrary to the evidence of the applicant, the incidents raised by the respondents in the September 1, 2005 meeting had not occurred years prior but rather in the latter half of the previous school year. The details of the several incidents that were raised with the applicant from September 1, 2005 to December 2006 are unimportant. Suffice it to say that the applicant in a number of different ways was observed to be engaged in interactions with female pupils that could be perceived by an observer as inappropriate in the sense that they might be perceived as grooming behaviour. This culminated in a final disciplinary meeting in December 2006.

14The applicant’s evidence taken as a whole indicated that he remained resistant to accepting that the respondents had a legitimate reason to be concerned that his interactions with pupils on occasion might have been perceived as potentially harmful. He testified that he eventually came to the conclusion that he was thought to be pedophile. He testified that he was not and that his interactions with students were a function of his teaching style that he had employed throughout his career. For example, he testified that he had been giving candy to pupils for years as rewards for success and as a treat. He testified that it was known in the school that he had candy and that children from other classrooms would often come seeking a treat. He saw nothing wrong with it or any of the other interactions that were raised with him by the respondents.

15The applicant’s other difficulties with the respondents included what he acknowledged at the hearing as an unprofessional interaction with at least two teachers over the proper manner in which students ought to enter the school building. The applicant testified that, although he acted inappropriately and unprofessionally in the context of the dispute, he was told by his colleagues that his ideas were old fashioned.

16A meeting was convened about the issue and the applicant was asked to apologise to his colleagues for the manner in which he had treated them. He did so, but in way that personal respondent felt was insincere. As well, the respondents stated that there several complaints from parents. The personal respondent testified that parent complaints happen and that every teacher will be subject to them from time to time. In this case however, the number, vehemence and persistence of the complaints were unusual and were a source of concern. There were a number of other strictly performance issues that are documented in the material, including a performance evaluation conducted in May 2006 and memos to the applicant in the Fall and Spring of the 2006-07 academic year.

17The applicant testified that as these various issues were raised with him over the course of the 2005-2006 and following academic year he felt that he could do nothing right and he felt under attack. He believed he was being targeted by the personal respondent for some reason.

18He also stated that he thought his age was an issue for the respondents. In addition to heightened scrutiny, or as the applicant put it the witch hunt, the applicant states that on three occasions his age was raised by the personal respondent. The applicant could provide few details of these incidents. He could not say for example when they occurred, other than stating that they occurred in the 2005-2006 academic year. He states that among these three incidents, he was asked twice whether he had plans to retire.

19The applicant states that his treatment by the respondents caused his depression to deepen. He testified that at the suggestion of the local union president he requested a transfer to another school in March 2007 on the basis of the union’s advice that a transfer request was preferable to an administrative transfer by the Board which the union felt was coming. In fact the employer exercised its right to transfer the applicant to another school for the following academic year. This was confirmed by letter dated March 23, 2007.

20The applicant testified that by mid-March 2007, he was unable to cope any longer and that after March Break he attended a hospital where he was assessed by a psychiatrist who increased his medications and advised that he should be off work. A note was provided to the employer which indicated an indefinite leave with reassessment in three weeks. The applicant testified that he told the personal respondent in a brief discussion that he would be returning to work in three weeks. He later stated that he told the personal respondent that he would be returning on April 15th. April 15, 2007 was a Sunday.

21The personal respondent testified that the applicant’s advice was vaguer than that and that there was no definite return date. I prefer the evidence of the personal respondent on this point as it is more consistent with the medical note that was provided to the employer and the not unusual trajectory of these kinds of leaves. In fact subsequent to the reassessment in mid-April, the applicant provided another note which indicated that he would be off work until June when a further reassessment would be undertaken.

22From the applicant’s perspective the discrimination he was experiencing became worse after he left the workplace. He testified that although he told the personal respondent that he would be returning in three weeks, he was advised by email from the school’s custodian that his personal effects in the classroom had been packed up and were ready for him to retrieve on April 4, 2007. The email also indicated that it was the custodian’s understanding that the applicant was not returning to the Bedford school.

23The applicant makes several claims about this incident. First, states the applicant, it is unprecedented for a school to pack up the personal items of a teacher on leave. He states that another teacher on leave that same year had not had her personal stuff removed from the classroom. Moreover the applicant states that the custodian’s email made it clear to him that he was “being removed from the school, being forced out, being fired if you like.”

24The personal respondent could not explain the content of the email and acknowledged that it would have been upsetting for the applicant to receive it. He further testified that he only learned of it many months later, perhaps in the context of this litigation. He was aware that the applicant’s personal effects were packed up and moved out of his classroom. He testified that he was approached by the two teachers who were now sharing the applicant’s classroom who asked if they could pack up the applicant’s personal items as they were concerned that they might get mislaid. It was also their view that they needed the space that the applicant’s personal items were taking up.

25The personal respondent testified that at that point he believed that the applicant’s leave was indefinite and he knew that the applicant would not be returning to the school the following year as a result of an administrative transfer which had been confirmed on or about March 23, 2007. The personal respondent also believes, although this is not entirely clear, that it had already been decided by the Superintendent that whatever happened, in light of the issues raised with the applicant and canvassed above, it would be in everyone’s best interest that the applicant not return to the Bedford school that year.

26The personal respondent testified that he hoped that he would not have to raise this with the applicant as he appreciated that it would be hard for him to hear that he would not be returning to the school where he had taught for 25 years. Accordingly, the applicant was never told, whenever the decision was actually made, that he would not be returning to Bedford school in that academic year.

27The applicant did send an email dated June 4, 2007 indicating that he would be returning on June 11. The personal respondent responded by saying that he would need a note from his physician clearing him to return to work. The applicant did not respond to this email and seems to have abandoned any attempt to return to Bedford school.

28In fact the applicant did not return to the school that year. He submitted his resignation as a teacher at the end of May, effective June 30, 2007.

29The applicant also states that he was treated inappropriately when he attended the school to retrieve his personal items. He stated that he had made arrangements to visit the classroom of a colleague and also made arrangements to bring a friend to the school to help him with loading up his stuff. On April 19, the two men attended at the school and were in a classroom, when according to the applicant, the personal respondent came to the class room door, pounded on it and in a raised voice asked the applicant what he “was doing in the school” and “what are you saying to those children?”

30The personal respondent testified that he was advised by the school secretary that the applicant was in the school with a guest. He investigated and found the applicant in a classroom during class time talking to a number of students. He testified that he asked the applicant if he would please step outside to speak with him. The applicant, according to the personal respondent, asked him to wait a moment as he was talking to the children. The personal respondent interpreted this as the applicant being obstinate. The applicant exited the room and the personal respondent asked him to come to his office where they could talk privately. According to the personal respondent, the applicant responded with words to the effect “let’s do this right here”. This was not disputed by the applicant.

31The personal respondent then asked what the applicant was doing in the school. The personal respondent stated that the school policy required that guests check in with the school office, signing in and out and that the applicant would have been aware of this policy. He reminded the applicant of these requirements and suggested that they leave the school and move their vehicle to the exit doors of the store room where his personal items had been stored. The personal respondent acknowledges that he may have asked the applicant what he had been saying to the children. He states that his tone was firm but he denied raising his voice.

32The applicant also alleges that unlike other teachers on leave, his name was removed from his mail box in the staff room and that he had his school board email privileges revoked.

33The personal respondent testified that he was approached by the school secretary who asked for permission to remove the applicant’s name and use his mailbox for someone else. He does not recall the details but thought it was a reasonable request at the time. As regards the use of the respondent Board’s electronic communications system, First Class, the personal respondent states that he did remove the applicant from the Bedford conference of First Class used to communicate amongst Bedford staff when he knew that the decision had been made that the applicant would not be returning to the school. He did so because he has a habit of forgetting these things and then gets complaints from staff who have moved to another school getting Bedford emails weeks and months after departing. He stated that he only asked that the applicant be removed from this conference and understands that this is what was done and that otherwise the applicant had access to the system including email. He testified that it is clear that the applicant had access to other aspects of the system because he received email from the applicant on the First Class system until June, 2007. I note in this regard that the email from the applicant to the technical staff raising this issue refers to problems “getting the Bedford part of my first class”. This seems to confirm the respondents’ understanding of what transpired.

34Finally, the applicant states that the decision to not accept his application for supply teaching was discriminatory. The respondent Board states that the application was not accepted because of the documented and unresolved concerns canvassed above and clearly communicated to the applicant.

Was the applicant subject to discrimination on the basis of disability?

35As I indicated to the parties in dismissing the respondents’ preliminary motion to dismiss, there appeared to be no basis for a claim based on disability until at least March 22, 2007 when the applicant went off on a medical leave. Nothing in the evidence alters my view in that regard. There is no evidence that the applicant’s depression affected any of his actions or that there was any reason for the employer to have been aware of his difficulties in that regard. The applicant himself indicated that for the most part his depression did not affect his ability to function in the workplace, at least not until mid March 2007. It is also clear that the applicant did not inform the employer of his depression and request any kind of accommodation. Finally, in the course of the disciplinary meeting in December 2006, the applicant was asked if there were any other issues that might be affecting his work performance and his interactions with staff, students and parents. He told the respondents that there were no issues of concern that the respondents should be taking into account when considering the issues raised.

36The treatment of the applicant subsequent to his going on leave, while perhaps upsetting in hindsight, does not amount to differential treatment under the Code. It was acknowledged by the personal respondent that the custodian’s email was extremely unfortunate. He had no explanation for it other than that the custodian made an incorrect assumption.

37As regards the other facts relied upon by the applicant, while from his perspective these provide indications that his employment was in question, they do not either singly or taken together amount to a violation of the Code. The applicant was in some respects treated differently than others but that was in large part because his situation was different. I have considered the explanations for each of the incidents relied upon by the applicant and find that there is a legitimate, non-discriminatory explanation for each of them. As a result, even if it could be said that the applicant had been treated differently because of his leave or the reasons for it, that differential treatment was for legitimate non-discriminatory reasons, the primary one being that he was off on an indefinite leave and not returning to Bedford school. The decision to not communicate that to the applicant was a judgment call made by the personal respondent. I accept the explanation offered for it and in any event would not find a violation of the Code based on that decision.

Was the applicant discriminated on the basis of a perceived disability?

38The essence of this aspect of the claim of the applicant is that he was labelled as a pedophile by school administration, and that this is a disability under the Code. The applicant further states that in repeatedly raising these issues with him the respondents violated the Code. The applicant states that if the employer was concerned that the applicant was a pedophile they should have offered him counselling or sent him for an assessment.

39I do not accept the applicant’s analysis. The concerns of the respondent were legitimate and they raised them with the respondent in the appropriate way. The seriousness of the concern was clearly raised and the reasons for it articulated. Their concerns were reduced to writing. Moreover the respondents asked the applicant on at least one occasion if there were any underlying issues that they should be aware of, that might explain why the applicant appeared unable to modify his behaviour.

40There is no indication that the applicant is a pedophile and absolutely no suggestion that anyone involved thought that the applicant was a pedophile or that he was likely to engage, or ever had engaged, in any inappropriate sexual behaviour with any of the children with whom he had contact. The personal respondent was quite clear that he did not believe that the applicant was a pedophile or was involved in any inappropriate relationships with the children. He testified that if he had any such concerns he would have acted quite differently. He would, he stated, have called the children’s aid society and the police, and he would have removed the applicant from the school pending the investigation. There is no basis for concluding that the respondents perceived that the applicant was a person with pedophilia, whether or not that constitutes a disability within the meaning of the Code.

41Moreover, there is no evidence that the respondents’ decision-making was informed by such a perception. Their concern was with how the applicant’s interactions with students might be perceived by others, in particular the parents of children in the school, and how such a perception could affect the applicant’s career. What was most troubling for the respondents was the applicant’s seeming inability to understand what their concerns were and respond appropriately. That inability to acknowledge the basis for the concern was apparent even at the hearing.

42Whether one agrees or not with the underlying concern, it is simply inadequate to say, as the applicant did at the hearing, that “perception does not make it right”. In this context the possibility that some of the applicant’s interactions with students might be perceived by others as being grooming behaviour was all that really mattered. It was the applicant’s inability to understand this or his resistance to the notion that he would have to change the way in which he interacted with his students that drove the respondents’ decision-making and nothing else.

43The applicant also alleges that his application to be a supply teacher was rejected because he was a person with a perceived disability. For the reasons set out above there is no basis for this claim. The respondents’ concerns were well founded and, given the applicant’s apparent inability to understand the basis for the concern, the respondent Board’s decision to not accept his application was not inappropriate or a violation of the Code.

Was the applicant subject to discrimination on the basis of age?

44I also do not accept the assertion that the applicant was subject to discrimination on the basis of age. There is no indication that his age was at all an issue for his employer.

45The applicant alleges that the respondent inappropriately and on more than one occasion asked him about his retirement plans. The prospect of the applicant’s retiring was raised in the spring of 2006, but I find that it was raised for a legitimate reason. When the applicant indicated that he was not planning to retire at the end of that year nothing further was said about the matter. I also note that the applicant’s stress leave and ultimate departure from the Board was a year later.

46The evidence discloses no basis for drawing a connection between these two events and it is not alleged that the issue of his retiring was raised in the academic year 2006-2007. The applicant states that with the change in the Code that had the effect of eliminating mandatory retirement it is now inappropriate for employers to ask employees if they have plans to retire, and to approach employees on an individual basis is a violation of the Code. I do not agree.

47The applicant relies upon the allegation that one or two of the applicant’s colleagues described his ideas as outdated. This allegation appears to arise only in the context of the dispute with one or two colleagues in the hallway over how the children should enter the building after recess. Such a remark if made as alleged by a colleague while perhaps insensitive, is too slim a reed to make out a violation of the Code. There is no evidence that the applicant was subject to any greater scrutiny by the respondents because he was approaching retirement age. The evidence as a whole including the documentary record indicates without any doubt that all of the issues raised with the applicant by the respondent were well founded in the sense that there was clearly some basis for their concerns. It does not mean that they were correct in their judgments, only that their concerns were not, intentionally or otherwise, informed by ageist assumptions or pre-conceptions, or as alleged by the applicant, a not so subtle attempt to force him into retirement.

48For all of these reasons the Application is dismissed.