HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ian Mandelzys
Applicant
-and-
York Region District School Board,
Helen Fox and John Tsourounis
Respondents
AND BETWEEN:
Ian Mandelzys
Applicant
-and-
York Region District School Board,
Teresa Estriga, Bill Hogarth, Chris Tulley, Helen Fox,
Carol Diamond and Ken Segeishi
Respondents
AND BETWEEN:
Ian Mandelzys
Applicant
-and-
York Region District School Board,
Bill Hogarth, Helen Fox, Carol Diamond,
Dorothy Camaert and Chris Tulley
Respondents
INTERIM DECISION
Adjudicator: Mark Hart
Indexed as : Mandelzys v. York Region District School Board
1These are three Applications made under the Ontario Human Rights Code (the “Code”). The first Application is dated June 30, 2009 and was filed under the transitional provisions in s. 53(5) of the Code, with the underlying complaint having been filed with the Ontario Human Rights Commission (the “Commission”) on May 3, 2007. The second Application is dated December 1, 2008 and was filed directly with the Tribunal under s. 34 of the current Code. The third Application is dated December 30, 2009 and also was filed directly with the Tribunal under s. 34 of the current Code.
2The purpose of this Interim Decision is to address the respondents’ requests for the following orders: (1) consolidation of all three Applications to be heard together; (2) adjournment of the April 26, 2010 hearing date for the transition Application; and (3) removal of the personal respondents from the transition Application. Written submissions were received from the parties in relation to all three issues.
Request for Consolidation
3All three Applications were filed by the same applicant and relate to his employment as a teacher with the respondent school board. While each of the three Applications relates to events that occurred in a distinct timeframe, it is clear from a review of the Applications and Responses filed to date that all three Applications arise out of attempts made by various representatives of the respondent school board to raise and address alleged deficiencies in the applicant’s work performance as a teacher, which the applicant alleges amounts to differential treatment and harassment in violation of the Code.
4While the applicant was working at different schools during the periods encompassed by each of his three Applications, it is clear in my view that there is a continuity both in respect of the nature of the alleged performance deficiencies that the respondent school board and its representatives were attempting to raise and address and in the applicant’s allegations of differential treatment and harassment. In addition, Helen Fox, Superintendent of Education, is named as a personal respondent in each of the three Applications and was personally and directly involved in the events spanning all three Applications. Moreover, in relation to the latter two Applications, there is a direct overlap and continuity of events relating to an investigation that is alleged to have been conducted by the personal respondents Helen Fox and Carol Diamond in November and December 2008.
5In my view, in light of the continuity of events and issues in this proceeding, the necessity of hearing Ms. Fox’s evidence in relation to all three Applications and the factual overlap in the latter two Applications, there are good reasons to consolidate these three Applications and hear them together.
6The applicant has submitted that he will be prejudiced if all three Applications are heard together, as this will result in a delay of the hearing in the transition Application currently scheduled for April 26, 2010. First, it is clear to me from a review of the materials filed to date that, even if a hearing were held only in relation to the transition Application, it would not be completed in one day and further hearing dates would be required. Given the Tribunal’s transition caseload and schedule and in light of the impact of the summer holidays particularly on the availability of school board participants in the hearing process, it is highly unlikely that any further dates for continuation of the hearing could be scheduled prior to the fall of 2010. Second, any potential remedy arising out of a hearing in the first Application, if any violation of the Code were to be found, would be impacted by the potential outcome of the subsequent Applications, such that any award in relation to the transition Application could not be finalized in any event until the hearings in the other Applications had been completed.
7More importantly, however, the issue of delay in the commencement of a hearing is only one factor to be considered in deciding whether to consolidate applications and hear them together. Other factors that need to be considered are the interest in avoiding a multiplicity of proceedings, the interest in judicial economy in hearing all evidence from the parties at one time, and the interest in avoiding conflicting findings of fact and law. In my view, these other considerations far outweigh any minimal delay in the commencement of the hearing in the transition Application that would result from the consolidation of these Applications.
8As a result, I order that the three Applications commenced by the applicant be consolidated and heard together.
Adjournment of April 26, 2010 hearing date
9As noted above, the commencement of the hearing in the transition Application is scheduled for April 26, 2010. The other two Applications are in more preliminary stages, and are not yet ready to proceed to a hearing. The first s. 34 Application is scheduled for mediation on May 26, 2010. With regard to the second s. 34 Application, it has not yet been delivered to the respondents and accordingly no Response has yet been filed by the respondents. The second s. 34 Application will be delivered to the respondents along with this decision; they should file their Response in the normal course. The scheduled mediation date will be available to address matters raised in both s. 34 Applications, and the Transition application if the parties wish. If these matters are not resolved at mediation, the parties still need to proceed through the disclosure process and need to serve and file their materials in advance of the hearing, including witness statements and documents they intend to rely upon. The Tribunal will provide further procedural direction as required.
10In these circumstances, it is my view that it is preferable to adjourn the April 26, 2010 hearing date to a date when all three Applications are ready to be heard together.
Removal of personal respondents
11The respondents request the removal of the three personal respondents to the transition Application. All parties rely upon the criteria set out in this Tribunal’s decision in Persaud v. Toronto District School Board, 2008 HRTO 31.
12In my view, there is no issue as to the first three criteria. The school board clearly has been identified as liable for the alleged conduct of the personal respondents, the school board is not raising any issue as to its deemed or vicarious liability for their conduct, and there is no issue as to the school board’s ability to respond to or remedy the alleged Code infringements.
13The issue, in my view, is whether any compelling reason exists to continue the proceeding as against these personal respondents, such as where it is the individual conduct of the personal respondent that is a central issue. In the transition Application, the applicant has made extensive and detailed allegations against the personal respondent John Tsourounis, who was the principal at the school where the applicant worked during the period addressed in that Application. I appreciate that it is the respondents’ position that as principal, Mr. Tsourounis had a responsibility to take steps to address any perceived deficiencies in the applicant’s work performance. But the question as to whether the conduct of and steps taken by Mr. Tsourounis were appropriate performance management in accordance with his statutory responsibilities, as alleged by the respondents, or were disguised differential treatment and harassment of the applicant because of his age and disability, as the applicant alleges, will be the central issue in the case. In these circumstances, it is my view that it would not be appropriate to remove Mr. Tsourounis as a personal respondent.
14With regard to Helen Fox, she was Superintendent of Education and again is identified by the applicant as having been directly involved in the events giving rise to the transition Application, including direct participation in meetings with the applicant on October 11 and 26, 2006. Once again, while I appreciate that the respondents have a different view as to the appropriateness of Ms. Fox’s involvement in and conduct at and as a result of these meetings, there nonetheless are direct allegations made about Ms. Fox’s conduct that do not make it appropriate to remove her as a personal respondent.
15On the other hand, with regard to the personal respondent Bill Hogarth, Director of Education, his only alleged involvement is as the recipient of a letter alleged to have been sent by the applicant in January 2007 and the allegation that no appropriate or sufficient steps were taken in response. From the submissions filed by the applicant, it is clear that Mr. Hogarth was named as a personal respondent as a result of his institutional position as Director of Education, as opposed to as a result of any alleged direct involvement in the differential treatment and harassment that the applicant alleges he experienced. In my view, this is not a sufficient basis to justify continuing the proceeding as against Mr. Hogarth personally, and as a result he is hereby removed as a personal respondent and the title of proceeding will be amended accordingly.
Order
16For all of these reasons, I hereby make the following order:
a) Applications TR-0721-09; 2008-00851-I; 2009-04455-I are consolidated and will be heard together;
b) The April 26, 2010 hearing date is adjourned; and
c) Bill Hogarth is removed as a personal respondent to Application TR-0721-09.
Dated at Toronto, this 16th day of March, 2010.
“Signed By”
Mark Hart
Vice-Chair