David Young v. Toronto District School Board, 2010 HRTO 51

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Young

Applicant

-and-

Toronto District School Board

Respondent

-and-

Elementary Teachers’ Federation of Ontario – Toronto

Occasional Teacher Local

Intervenor

DECISION

Adjudicator: Sherry Liang

Date: January 12, 2010

Citation: 2010 HRTO 51

Indexed as: Young v. Toronto District School Board

APPEARANCES:

David Young, Applicant ) On his own behalf

Toronto District School Board, Respondent ) Grant Bowers, Counsel

Elementary Teachers’ Federation of ) Kate Hughes, Counsel

Ontario – Toronto Occasional Teacher Local )

1This is an Application filed on November 25, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”).

2The Application alleges discrimination on the ground of age in the system used by the Toronto District School Board (the Board) to distribute occasional teaching assignments. Occasional teachers are assigned to teach as a substitute for a regular teacher who is absent for a temporary period. They are represented in their employment relations with the Board by the Elementary Teachers’ Federation of Ontario – Toronto Occasional Teacher Local (ETFO), which has entered into a collective agreement with the Board. ETFO has intervened in this Application.

BACKGROUND

3The Board’s system for assigning work to occasional teachers is currently called the Smart Find Express (SFE) system. Although the system has in recent years moved to greater automation through use of the internet as well as phone, the call out or dispatch parameters have been in place since at least 1998. These parameters, which the applicant alleges to be discriminatory, were developed by the Board in conjunction with ETFO.

4Under the Board’s process, schools may pre-arrange a substitute teacher when they know of an impending absence in advance. If a substitute teacher is pre-arranged, the SFE process is not used. If no substitute teacher is pre-arranged, the SFE system makes call-outs based on a standardized sequence. Schools have the option of requesting a “specified substitute teacher”, who will be the first teacher to be called. If the specified substitute teacher does not accept the assignment, the next step under the system is to call substitute teachers on a school’s “preferred lists”. If the school’s preferred lists are exhausted, the system then searches for available substitute teachers by classification and geographic zone.

5According to the Board, approximately 55% of substitute teaching positions are filled through pre-arrangement or a specified substitute teacher, and a further 16% through the use of the preferred lists. The remaining 29% of jobs are filled through the SFE call-out system.

6The applicant asserts that the fact that 71% of jobs are filled through pre-arrangement, specified substitute teachers or the use of preferred lists is discriminatory. In the Application, he asserts that the system favours local retired teachers, and that this constitutes age discrimination. In the Application, the applicant states that the discrimination “has been going on for the past 30 years in the education field of employment.”

7The applicant describes himself as a “career occasional teacher” or a “regular occasional teacher”, to draw a distinction between his circumstances and occasional teachers whom he describes as “retired teachers”, “returning retired teachers”, “surplus teachers” and “recently graduated teachers”. The applicant has been working as an occasional teacher for the Board for several decades, and is approaching 60 years of age.

8The Application to the Tribunal is not the applicant’s first effort to seek a remedy for the alleged discrimination. The Board’s Response and ETFO’s Request to Intervene both refer to a decision of the Ontario Labour Relations Board (OLRB) dated February 3, 2004, on an application made by the applicant under the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A., as amended (the LRA). They take the position that the decision of the OLRB has appropriately dealt with the substance of the issues in this Application. They ask that the Tribunal dismiss the Application under section 45.1, which states:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

9The Tribunal’s Interim Decision of March 10, 2009 in this matter, 2009 HRTO 277, directed the parties to provide oral submissions on the issue of whether the Application should be dismissed under section 45.1, which led to the hearing before me on January 4, 2009.

THE OLRB PROCEEDING

10The applicant filed an application against ETFO under section 74 of the LRA (the LRA application) in which the Board intervened. In his LRA application, the applicant alleged, as he does in this Application, that as a “regular” occasional teacher, he receives fewer teaching assignments than he should. He alleged that retired teachers are called to replace absent teachers, thereby reducing the number of assignments available to him.

11In his LRA application, the applicant relied on the Code, as he felt that the Board’s assignment of occasional teachers discriminated against “regular occasional teachers.” The OLRB rejected the applicant’s position, stating that “the Code does not prohibit discrimination except on certain specified prohibited grounds (race, sex, etc.)” and that “the applicant’s allegations do not suggest that he would fall into one of these grounds.”

12The OLRB also found the following:

It is apparent that all occasional teachers operate under the same rules – that is, it is the school which determines when an occasional teacher may get an assignment. Quite simply, the Board sees nothing about the trade union’s acceptance of the School Board’s system that is either arbitrary, discriminatory or in bad faith. The applicant is in the same position as all other career occasional teachers and retired occasional teachers. Each teacher’s opportunity for employment is the same under the system.

The fact that all occasional teachers are treated the same means that the system is not discriminatory on the facts alleged. In addition, there is no suggestion of bad faith – that is improper motive by the Federation in agreeing to the implementation of the system. Finally, it is apparent and anticipated that the Federation put considerable thought into the substitute call in system. While there were other models available to the Federation (ie. all is based on seniority) there is nothing arbitrary about the system agreed to.

13At the hearing before me, the applicant submitted that the system of assigning work to occasional teachers is discriminatory because, as he put it, “a teacher is a teacher”, and no teacher should get preference over another. When asked to explain whether the issues before the OLRB were any different than those in his Application, he stated that he now had access to some statistics that were not available to him before. He submitted that the numerical breakdown provided by the Board in its Response about how occasional teachers are assigned “crystallized” the effect of his claim of discrimination. He stated that the discrimination wasn’t “resolved” by the OLRB six years ago, and it still continues.

DECISION

14At the hearing, the Tribunal explained to the applicant some of the key principles reflected in section 45.1 of the Code. The Tribunal noted that it is not the only forum that has the authority to decide human rights claims. In hearing an application under section 74 of the LRA, the OLRB may be required to decide whether a union discriminated against a member within the meaning of the Code: see Dunn v. Sault Ste. Marie, 2008 HRTO 249.

15The Tribunal also noted that the law does not favour the re-litigation of issues that have already been decided. Among the values underlying section 45.1 are the need for finality in the law, and the interest of respondents in not having to defend against the issues that have already been decided in another forum.

16I also indicated to the applicant that the Code recognizes the role of the Tribunal as the pre-eminent adjudicative authority on human rights law in Ontario. The Tribunal has the discretion, accordingly, to proceed with an application where it is not convinced that another proceeding has “appropriately dealt with” the substance of the issues in the application. I note here, however, that the Tribunal has stated that in deciding whether another proceeding has “appropriately dealt with” the substance of the issues, it should neither be overly technical, nor act as an appellate court from the decision of another tribunal: see Campbell v. Toronto District School Board, 2008 HRTO 62.

17Against this context, I invited the applicant to explain why he believes the OLRB did not appropriately deal with the substance of the issues in his Application. As I have indicated, the applicant’s Response centred on the information provided by the Board in its Response. The applicant believes that, had this information been available to him during the OLRB proceeding, the result might have been different.

18I cannot agree that the fact that the applicant now has more information than he had in 2004, changes the nature of the issues that are before the Tribunal. The applicant’s assertions of discrimination are the same today as they were in 2004. His contention is that the Board discriminates contrary to the Code because its system of assigning work to occasional teachers favours teachers who are able to establish a continuing relationship with a school, at the expense of teachers who do not have a continuing relationship with a school or number of schools. In his contention, the former group includes predominantly retired teachers, but also includes teachers he describes as “returning retired teachers”, “surplus teachers” and “recently graduated teachers”. According to the applicant, occasional teachers who are like himself, “regular occasional teachers”, are less likely to be able to establish a continuing relationship with a school.

19As indicated above, the Application alleges discrimination on the ground of age. The OLRB did not expressly refer to whether the applicant’s allegations could establish a prima facie case of age discrimination, but its conclusions were broad enough to encompass that issue. The OLRB considered whether the category of a “regular occasional teacher” could correspond with an attribute identified as a prohibited ground of discrimination under the Code, and decided it could not. It therefore determined that the applicant’s allegations of discrimination, which are substantially the same as those before the Tribunal today, did not establish a basis for a finding of a violation of the Code.

20The applicant himself recognized the difficulty in bringing his claim of discrimination within the Code. When the Tribunal invited him to explain why he had chosen “age” as the ground of discrimination, he stated that he “had to get his foot in the door” of the Tribunal. While not disagreeing that the OLRB had found that his claim did not raise issues of discrimination based on a Code-protected ground, he stated that maybe the Code needs to be changed.

21In essence, the applicant’s complaint is about a system in which schools are permitted to favour teachers with whom they have developed a relationship. The applicant believes the system is discriminatory not because it necessarily offends the provisions of the Code on the basis of age or any other identified ground, but because it allows for personal preferences and relationships between individuals and school administrators to have weight in determining job assignments for occasional teachers.

22That the essence of the applicant’s complaint is about the unfairness of the exercise of individual discretion by school administrators is also made clear by his “reprisal” allegations. Section 8 of the Code prohibits reprisals against persons who claim or enforce their rights under the Code. In his Application, the applicant claimed that he was the victim of reprisal. The particulars of the applicant’s allegations of reprisal however, provided in his letter of March 11, 2009 and during oral submissions, do not arise out of the applicant’s attempts to enforce rights under the Code. In one instance, the applicant states that a school which regularly called him as a substitute teacher dramatically reduced the work available to him after an incident in which he had raised an issue about not wishing to perform clerical tasks. In another instance, another school reduced the work available to him as a result of a dispute between the applicant and a student.

23With respect to both incidents, the applicant did not contend that the loss of work was linked to the filing of the Application or attempts to enforce his rights under the Code. It is apparent that the relationship between these incidents and the other issues raised in the Application are that they are further illustrations of what the applicant perceives to be unfair and arbitrary treatment of occasional teachers. These allegations do not, however, raise issues of reprisal within the meaning of the Code.

24Returning to the issue of whether I should dismiss this Application under section 45.1, I find that the application under section 74 of the LRA was a “proceeding” within the meaning of the Code: see Jarvis v. Sheet Metal Workers’ International Association 2009 HRTO 121. Further, I am satisfied that the OLRB appropriately dealt with the substance of the application, in its decision of February 3, 2004. The issues before the OLRB were substantially the same as those before me. Although the respondent in the application before the OLRB was ETFO and not the Board, as in this Application, the conduct alleged to be discriminatory was the system for distributing work amongst occasional teachers which was developed jointly by the Board and the ETFO. As I have described above, the OLRB considered and made a determination about whether the allegations about this system could give rise to a claim of discrimination based on a Code-protected ground. It is not in the interests of justice to permit the re-litigation of those issues.

25Although it is not necessary to the application of section 45.1 that I find myself in agreement with the conclusions of the OLRB, having reviewed the Application and considered the submissions of the parties, I am also of the view that the Board’s system of assigning work to occasional teachers does not raise an arguable claim of discrimination related to age or other any ground under the Code.

26Before concluding, I will address one further issue raised by the Application. In the part of the Application in which the applicant is asked to describe the events that he believes were discriminatory, he does not refer to any issues about pay. However, in another part of the form, he has requested a remedy that appears to include a pay raise. He refers to the fact that the Board’s pay for occasional teachers is based on days of experience, and is capped at 200 days. Although the applicant is being paid at the top daily pay rate, he believes that it is discriminatory not to give him credit for what he describes as over 4000 days of experience in the classroom.

27The parties did not address this particular issue in their submissions. It is not clear that this was an issue before the OLRB. In any event, on my review of the matter, I am unable to conclude that the cap in daily pay for an occasional teacher raises any issues about age discrimination under the Code.

28In conclusion, this Application is dismissed. I am satisfied that the substance of the issues has been appropriately dealt with in the proceeding before the OLRB and, to the extent any additional allegations are raised in this Application, they do not establish any arguable claim under the Code.