Margaret Way v. Toronto Catholic District School Board, Kevin Kobus and William Jesty, 2010 HRTO 288

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Margaret Way

Applicant

-and-

Toronto Catholic District School Board, Kevin Kobus and William Jesty

Respondents

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: Kaye Joachim

Date: February 9, 2010

Citation: 2010 HRTO 288

Indexed as: Way v. Toronto Catholic District School Board

AppearanceS AND WRITTEN SUBMISSIONS BY

Margaret Way, Applicant ) Kiké Roach, Counsel

Toronto Catholic District School Board, )

Kevin Kobus and William Jesty, ) John Woon, Counsel

Respondents )

1The applicant filed a transitional Application on September 23, 2008 under section 53(3) of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”) alleging that the respondents discriminated against her on the basis of age, family status and marital status and took actions in reprisal for having filed two previous complaints with the Ontario Human Rights Commission.

2A Case Resolution Conference was held on January 6, 2010. At the commencement of the hearing, I heard the respondents’ Request for Order during Proceedings seeking early dismissal of all or part of the Application on the basis that other proceedings had appropriately dealt with the substance of the Application (s. 45.1 of the Code) and/or that it was not filed within one year of the last events in question (section 34(1)). In addition, I sought the parties’ submissions on the scope of the Application as the applicant’s statements of additional facts made reference to events post-dating the 2007 complaint.

3I ruled orally that I would hear only those allegations which had not already been determined by the Ontario Human Rights Commission and that occurred from February 2006 to December 2007. My reasons for this ruling are set out below.

4I heard the evidence of the applicant, Jeff Heximer, a union representative, John Shea, former Principal, William Jesty, former Principal and Bob Dudniak, Senior Co-ordinator, Labour Relations.

5The parties were invited to make final written submissions. On the date set for her submissions, the applicant’s counsel wrote to the Tribunal stating that because I had ruled that early allegedly discriminatory events were excluded, she could no longer pursue her present Application and asked to withdraw the Application. The respondent opposed a withdrawal on the basis that the evidence had been heard and a withdrawal without terms could give rise to a new application on the same events. The applicant reiterated her request to withdraw on the basis that if she not been required to proceed following the preliminary ruling, she would have withdrawn her Application.

6In my view, this is not an appropriate case to permit a unilateral withdrawal. I made certain rulings which prompted the request to withdraw after the evidence has been heard. In light of the applicant’s past practice of filing complaints with allegations dating back to the 1982, I find that it is appropriate to issue my Decision on the merits.

Background

7The original complaint underlying the present Application was filed on December 17, 2007 (the “2007 complaint”). The applicant self-identified as a divorced woman whose marriage was subsequently annulled. She had a child out of wedlock years previously. She was 61 years of age at the time she filed the complaint. She alleges that she was denied long term occasional positions (“LTO”), permanent teaching positions and summer positions since 1982 by the institutional respondent (the “TCDSB”) and the personal respondents because of her marital and family status and her age. She also alleged that she experienced reprisals as a result of filing two previous human rights complaints.

8During her initial interview for a teaching position with the school board in September 1981, one member of the interview panel, Kevin Kobus, then supervising principal of the school board, wrote in his interviewer comments that the applicant was going through annulment proceedings; that she had become Catholic in April; and that she was “divorced…I’d question her stability.” Notwithstanding this comment, the applicant was advised in January 1982 that she had been placed on the list of occasional teachers. In 1989, the applicant had a child when she was not married.

9Sometime around 1999 the applicant obtained a copy of her personnel file and discovered the above comment written by Mr. Kobus. She filed a complaint in May 1999 (the “1999 complaint”) alleging discrimination by the Toronto Catholic District School Board (the “school board”) and various personal respondents on the basis of age and marital status over the failure to obtain a permanent position. Although she did not specifically raise the 1981 interview comments, she alluded to the fact that she perceived that her colleagues appeared to disapprove of her because she had had a child while unmarried. Many of these allegations were repeated in the 2007 complaint.

10The applicant and the respondents entered into a settlement of the 1999 complaint on the basis that the school board would recommend the applicant for a LTO position and that upon successful completion of the LTO, the applicant would become eligible for a permanent position. The applicant began an LTO in January 2001 and submitted a letter of resignation in February 2001 prior to completion of the LTO. The Board did not consider her eligible for a permanent position as she did not successfully complete the LTO.

11In March 2003, the applicant applied for an LTO position and was not successful. She testified that she was told both by the principal of the school and an unnamed person at the school board that she did not get the LTO because she had not successfully completed the 2001 LTO.

12In July 2005, the applicant’s counsel contacted the Ontario Human Rights Commission (the “Commission”) to inquire about filing a complaint. On February 20, 2006, the applicant filed a second complaint (the “2006 complaint”) repeating the allegations in the 1999 complaint and adding details since the settlement of the 1999 complaint. In particular she alleged that she resigned from the 2001 LTO position because of discriminatory actions of the respondents and that she had not been hired for a permanent position since then. She alleged discrimination on the basis of age and marital status, breach of settlement and reprisal.

13The Commission investigated the respondents’ assertion that the complaint was made in bad faith, vexatious and was out of time. On March 14, 2007, the Commission dismissed the complaint under section 34(1) (b) and (d) of the old Code. The Commission decision stated that the applicant had resigned from the LTO position and therefore there was no breach of settlement. The Commission found that the applicant was advised that her failure to obtain a permanent position between 2003 and 2005 was due to her failure to complete the LTO position and therefore the assertion of discrimination was vexatious and made in bad faith. The Commission determined that the events giving rise to the complaint occurred in February 2001, when the applicant resigned and therefore dismissed the application for delay and determined that the delay had not been incurred in good faith.

14The applicant sought reconsideration of this decision and on August 22, 2007 the Commission dismissed the request for reconsideration.

Settlement of the 1999 complaint

15The applicant signed a release on January 31, 2001 releasing the respondent school from all human rights claims arising out the 1999 complaint. The Tribunal has held that where a party settles a human rights complaint, the Tribunal may find that it is an abuse of the Tribunal’s process to permit the applicant to continue with an Application relating to that same complaint.

16The applicant released the school board for any allegations of discrimination during the 1981 to 1999 period and there are no exceptional circumstances which would justify permitting her to pursue allegations in the present Application. This does not preclude her from relying on the 1981 interviewer’s comments and attempting to establish that this comment and attitude continued to play a role in 2006 and 2007.

Delay

17With respect to the allegations of ongoing discrimination on the basis of age, marital status and family status, breach of settlement and reprisal from 1999 to February 2006 (the 2006 complaint), I find that the allegations were made more than one year before the Application was filed in December 2007.

18The applicant submitted that her inability to successfully complete the 2001 LTO which arose out of the settlement was due to actions of school board which effectively forced her to resign. She asserts that the forced resignation was a continuation of the discrimination. After that, the school board refused to consider her for permanent positions or other LTO positions because she did not have a successful LTO assignment. As such, the 2001 LTO assignment is the seminal event, and the applicant should be entitled to establish that the failure of the LTO assignment was due to discrimination by the respondent.

19From that point on, the 2001 LTO assignment dogged the applicant’s entire career and continued to affect her ability to obtain any positions since that date and ongoing. By refusing to consider the 2001 LTO would effectively prevent the applicant from addressing ongoing discrimination.

20The first time the applicant raised the issue of the alleged discriminatory 2001 LTO assignment was in July 2005, through her counsel. This was beyond the six month limitation period in the Code and also beyond the current one year limitation period. With respect to whether the limitation period should be waived if the applicant can establish that the delay was incurred in good faith, this issue has already been considered by the Commission.

21The Commission assigned an investigator to look into the issues of delay and bad faith. The Commission determined that it would not be appropriate to look further into the applicant’s claims about the 2001 LTO position and the failed attempts to obtain an LTO or permanent position in 2003 and 2005 on the basis of delay and bad faith.

22I accept that the Commission procedure and Commissioner decision-making process amounts to a proceeding for the purpose of section 45.1.

23I find, based on the written decisions of the Commission on 2007 and August 2007 that the Commission appropriately dealt with the issue of delay. The Commission specifically turned its mind to the issue of good faith and determined that the delay had not been incurred in good faith, noting that the applicant had demonstrated that she was able to proceed with a court action during the delay.

24In my view, it would not be appropriate for me to review the correctness of the decision.

25Alternatively, even if I were to consider the application of section 34(1) and (2) anew, to determine if the delay from February 2001 to July 2005 was incurred in good faith, I would also find that the applicant has not established good faith.

26The applicant testified that the reason for the delay in challenging the alleged forced resignation in 2001 was because of the strain involved in looking after her terminally ill mother, who died in 2003, and in dealing with the aftermath of her death. As a single mother with financial concerns, she was not able to proceed with the complaint.

27The respondents relied upon a decision of the Divisional Court dated December 11, 2003 which indicates that the applicant had filed a complaint against another school board in 1999 and pursued it with the Commission until it was dismissed in March 2000. She applied for reconsideration and the Commission dismissed the reconsideration application in May 2001. The applicant’s counsel then applied for judicial review which was heard in November 2003 and rejected in December 2003.

28Further, the Commission investigation report noted that the applicant’s counsel was specifically advised in July 2001 to file a new complaint alleging breach of settlement if she believed the settlement had been breached.

29In my view, this indicates that the applicant was objectively capable of pursuing her rights under the Code between 2001 and 2003.

30Accordingly, I do not accept that the delay between 2001 and 2005 when she first contacted the Commission was incurred in good faith.

Events that Post-date the 2007 Complaint

31In her statement of additional facts, the applicant asserted that she continued to apply for positions with the school board after 2007 and had not been offered an interview. She also alleged that various individuals told her she would never get a position and refused to provide her with references. However, the only application submitted by the applicant related to one 2009 application. When questioned about other applications since 2007, the applicant stated that as the process was online she did not have copies.

32The transitional provisions of the Code make clear that a transitional application relates only to the subject matter of the complaint filed at the Commission. This, coupled with the applicant’s lack of particulars about subsequent applications after 2007, led me to conclude that it would not be appropriate to include post 2007 applications or comments in this proceeding.

The subject matter of the Application

33The remaining subject matter of the Application relates to the period between February 2006 and December 2007 when the applicant twice applied for a permanent teaching position with the school board and was not even granted an interview. She also applied for a position for an elementary summer school remedial camp in 2007 and was not even contacted. In addition, she was not offered any LTO positions during that period.

34She asserted that the discriminatory attitude displayed by Mr. Kobus in 1981 about divorced persons and by her colleagues in 1989 about women who had children when unmarried continued to be a factor in her failure to obtain LTO, permanent or summer positions in 2006 and 2007. She also asserted that the school board gave younger people and recent graduates preference in the assignment of casual occasional teacher assignments.

Failure to Obtain a Permanent Teaching Position

35There is no dispute that the applicant is a qualified teacher. She holds a Bachelors of Education and a Masters of Education. She has been on the occasional teacher list and has been called in for casual assignments with the respondent school board since 1982. In addition, she has worked as a casual occasional teacher with other school boards.

36There is also no dispute that Mr. Kobus remained in the school board as supervisor of teacher personnel from 1981 until approximately 1996. At that point he left the Board and eventually returned to serve a three year term from 2005 to 2008 as Director of Education. However, in that role he had no day to day involvement in hiring of LTO or permanent teachers. I am satisfied that Mr. Kobus had no influence or involvement in any of the applicant’s employment activities during 2006 and 2007.

37The evidence of the school board witnesses established that the applicant was not considered eligible in 2006 and 2007 for a permanent teaching position because she did not have a positive evaluation from a principal with respect to a long term teaching assignment. She was not placed on the list of potential eligible candidates which explains why she was not called for an interview. Although the applicant testified that no one ever explained the necessity for such an evaluation, I find that the school board wrote the applicant twice, in 2005 and 2006 and emphasized the necessity to obtain an evaluation from a principal based on a LTO.

38The applicant testified that after she resigned from the 2001 LTO, she only applied for one subsequent LTO in 2003. She was unsuccessful. She testified that she was told by the principal and the school board that she was unsuccessful because she had failed to complete the 2001 LTO. The applicant understood that to mean that she would never be successful again in obtaining an LTO and therefore she did not apply for another LTO.

39Bob Dubniak, Senior Coordinator of Labour Relations testified that the fact that the applicant had not successfully completed a LTO once did not preclude her from being considered for subsequent LTO positions. I accept his evidence, as it is not in keeping with the preponderance of probabilities that the school board would bar an occasional teacher from all future LTO positions based on one failed LTO experience.

40The applicant testified that from at least 2003 the school board posted LTO positions online. I conclude that the applicant’s decision not to apply for further LTO positions cannot be attributed to any act of discrimination by the respondents. However, her failure to apply for such positions has affected her ability to position herself for a permanent position.

41The evidence further established that it was highly unlikely that anyone at the school board ever had access to the applicant’s personnel file and thus became aware of the 1981 comment about the applicant’s alleged “instability.” There was also no evidence to establish that the fact that the applicant had a child while unmarried played any role in the applicant’s failure to obtain a position or even an interview in 2006 and 2007. Similarly there was no evidence that the fact that the applicant had filed human rights complaints in 1999 and 2006 was known to those who made the decisions about the applicant’s eligibility for LTO or permanent positions.

42The applicant has convinced herself, based on the 1981 interviewer’s comments, and the alleged attitude of her colleagues about her status as a single mother in 1989 that the school board has consistently and persistently discriminated against her since 1981. It is not my task to determine whether the 1981 comments were discriminatory or whether they influenced the school board’s actions in the past, or to determine if the applicant’s status as a single mother affected her ability to obtain a position in the past.

43The applicant’s perception may or may not be well founded. It is certainly understandable. However, many years have passed. The applicant resolved the pre-1999 work situation and released the school board of any responsibility for any potential pre-1999 discrimination. Since that time, the applicant’s inability to obtain a permanent position was caused solely by her failure to obtain and successfully complete a long term assignment as an occasional teacher and obtain a principal’s recommendation arising from the LTO.

Failure to Obtain a Long Term Occasional Assignment

44The evidence established that at some time prior to 2003, LTO positions were not posted and that principals chose eligible candidates somewhat randomly from a large list of occasional teachers. There was no evidence that the somewhat haphazard nature of the selection of occasional teachers for LTO positions was influenced at all by marital status, family status or age. The occasional teacher list from which principals could select LTOs did not disclose this information; nor did it indicate whether a person had filed a previous human rights complaint.

45The applicant testified that at least by 2003 the school board posted LTO positions and that after unsuccessfully competing for an LTO in 2003 she ceased to apply for any further LTOs.

46I find that the applicant’s failure to obtain an LTO in 2006 and 2007 was unrelated to her age, marital or family status and unrelated to the fact that she had filed two previous human rights complaints.

Summer School Position in 2007

47The applicant applied for a position to teach at a summer camp for elementary students in the summer of 2007. Mr. Jesty, the co-ordinator the summer camp program, testified that the program began in 2005 and continued in 2006 and was designed to provide a three week summer remedial school/camp experience for students in needy neighbourhoods. Approximately 150 teachers were hired in 2005 and 2006. In 2007 there was no money available to run the program. Nonetheless Mr. Jesty was asked to attempt to run the program on a fee for service basis. He contacted the principals of the schools involved and advised them to advertise a fee for service summer camp. He received 300 applications from teachers for the 2007 program. As Mr. Jesty had predicted, insufficient students applied and the program was cancelled except for one school. A school trustee provided the funds to run the three week program for one school.

48Mr. Jesty asked the Vice-principal of the school to choose the teachers for the program. The Vice-principal had received many applications from her own teachers and she selected three of the permanent teachers from her own school. No one looked at the applications received from external candidates, including the applicant’s application.

49The applicant’s witness, Jeff Heximer, a representative of the applicant’s union, testified that it would be reasonable and justifiable to prefer a teacher who had taught in the school during the year to be selected for a summer teaching program over any external candidate, as they would know the specific curriculum to be taught, and they would also know the students.

50The evidence conclusively demonstrates that the applicant was not discriminated against in the summer program on the basis of age, marital or family status or because she had filed two previous human rights complaints.

Preference in offering casual assignments

51The school board used an automated system for the assignment of casual occasional teaching assignments in 2006 and 2007. The automated system randomly called occasional teachers to offer casual assignments. Again, the applicant’s own witness testified that the teachers’ union was actively involved in monitoring the automated system and had no reason to believe that the system operated in any way to distinguish on the basis of age or years of service.

52The evidence demonstrates that the applicant did not experience reprisal or discrimination on the basis of age, marital or family status in 2006 and 2007.

53For all these reasons the Application is dismissed.