Waters v. Toronto District School Board, 2011 HRTO 135

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Susan Waters

Applicant

-and-

Toronto District School Board, Andrea Alimi, Ken Kroeker and Susan Neville

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: January 19, 2011

Citation: 2011 HRTO 135

Indexed as: Waters v. Toronto District School Board

APPEARANCES

Susan Waters, Applicant ) Self-represented

Toronto District School Board, Andrea Alimi, ) Ken Kroeker and Susan Neville, Respondents ) Grant Bowers, Counsel,

1This is an Application filed on August 20, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"). The applicant alleges discrimination in employment on the ground of age, as well as reprisal. She alleges that she has been denied a promotion to Vice-Principal with the Toronto District School Board (the Board) because of her age, and that the Board took reprisal actions against her when she complained about this discrimination to the Board's Human Rights Office. She also claims that she has been harassed in her workplace because of her age.

2The respondents denied the allegations and submit, in their Response, that the Application fails to establish a prima facie case of discrimination.

3In this matter, the Tribunal issued a Case Assessment Direction on May 5, 2009 outlining the issues raised in the Application and proposing a manner of proceeding. At the first day of hearing, on June 8, 2009, the Tribunal invited submissions from the parties on its proposed process. The Tribunal then indicated that it would hear the applicant's evidence and the evidence of any witnesses she wished to call. This testimony would be subject to cross-examination. At the conclusion of the applicant's evidence, the Tribunal would hear the parties' submissions and make a determination about whether the applicant had established a prima facie case of discrimination or reprisal.

4The Tribunal also decided that it would deal with liability initially, and hear evidence and submissions on the issue of remedy at a later stage, if necessary.

5At the hearing, the applicant was self-represented. I began the hearing with an introduction to the issues before me and the nature of the process. I told the applicant that I would be happy to answer any questions about procedure during the course of the hearing. At various points, I elaborated on procedural issues or provided further direction to the applicant as necessary. There were times when it appeared that the applicant did not fully understand the nature of the process and I explained the context and rationale for her. For example, during the parties' submissions, the applicant objected to my asking questions of counsel for the respondents, appearing to think that I was eliciting either his evidence or opinion, and I clarified the purpose of my questions. Because the applicant was self-represented, some aspects of the traditional adjudicative process were relaxed. I deferred ruling at certain points on objections by counsel for the respondents, allowing the applicant the opportunity to provide her narrative or submissions without interruption.

6Over the course of the hearing, I heard evidence from the applicant and two witnesses, Patricia Yee-Ling Chang (the applicant's doctor) and John McCaughey, her former Principal. She also submitted a witness statement from Martin Long, her union representative, which the Board agreed could be received into evidence without cross-examination and subject to its contention that much of it is not relevant to the issues. In making my determinations, I have considered the oral evidence of these three witnesses as well as the documentary exhibits and undisputed facts.

7At the time of most of the events, the applicant was a teacher at Lord Dufferin Junior and Senior Public School, an elementary school within the Board. The respondent Alimi was an Area Superintendent responsible for a group of schools including Lord Dufferin. There are 24 such Area Superintendents with the Board, and approximately 30 Superintendents in total. The respondent Kroeker was the acting Principal at Lord Dufferin for a period of time between the spring of 2007 and October 2007. The respondent Neville was the Vice-Principal at Lord Dufferin between September 2006 and January 2008.

LEGAL FRAMEWORK

8Section 5 of the Code provides that every person has a right to equal treatment with respect to employment without discrimination because of, among other things, age. Correspondingly, section 5(2) protects individuals from harassment in the workplace because of age. Section 8 of the Code states that every person has a right to claim and enforce his or her rights under the Code without reprisal or threat of reprisal.

9The onus of proving a violation of the Code rests with the applicant. The Supreme Court of Canada has described this onus in the following terms:

Following the well-settled rule in civil cases, the plaintiff bears the burden. He who alleges must prove... The complainant in proceedings before human rights tribunals must show a prima facie case of discrimination. A prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent-employer (Ontario Human Rights Commission v. Simpson-Sears Limited, 1985 CanLII 18 (S.C.C.), [1985] 2 S.C.R. 536 at para. 28).

10More recently, the Ontario Court of Appeal in Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, confirmed that in order to establish a prima facie case of discrimination, the applicant must allege sufficient facts to support an inference of discrimination in the absence of any explanation by the respondent.

11In Potocnik v. Thunder Bay (City) (No. 3) (1996), 1996 CanLII 20066 (ON HRT), 29 C.H.R.R. D/333, at para. 16 the Board of Inquiry stated the issue as follows: "In simple terms, there must be something that would make a reasonable person say that the employer has some explaining to do."

12In some cases, the Tribunal may consider the question of whether an application raises a prima facie case of discrimination at a preliminary stage, before any evidence. In such a case, it will be sufficient if the applicant raises allegations that, if accepted to be true, would be enough to establish a violation of the Code. See Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025. In other cases, the assessment may be made after hearing the applicant's evidence. An applicant will give evidence himself or herself about the conduct alleged to be discriminatory, and may call additional witnesses to testify. If all of the applicant's evidence, taken together, is insufficient to lead to a finding that the respondent has violated the Code, the Tribunal may decide that it is unnecessary to hear the respondent's evidence, and dismiss the application.

13When an applicant has not provided evidence sufficient to establish a prima facie case, it may not be fair, just and expeditious to require a respondent to call evidence in order to refute the applicant's case: Sosoo v. Winners Merchants, 2010 HRTO 1367. However, in assessing whether an applicant has established a case that the respondent should be required to meet, the Tribunal has recognized that discrimination is often not overt, and, particularly in an employment situation, the employer may have knowledge of facts or possess evidence of discrimination that is not reasonably available to an applicant: Jagait v. IN TECH Risk Management, 2009 HRTO 779. The Tribunal has the discretion to determine the order in which issues will be determined, Rule 1.7(g), and may choose to hear all the evidence, including that of respondents, before making a decision on whether the applicant has met the onus to establish a prima facie case of discrimination.

14In making an assessment of the case on the completion of an applicant's evidence, the Tribunal must decide whether that evidence is a "complete and sufficient basis upon which to make the factual findings necessary in order to conclude that the respondent infringed the applicant's rights under the Code", regardless of whether the respondent called any evidence: Sosoo, at para. 84). The Tribunal may consider whether the applicant's evidence is credible (see Jagait) or so lacking in detail or a clear and consistent account of the allegations, that it does not amount to a prima facie case: See Chau v. Olymel S.E.C/L.P, 2009 HRTO 1386.

15At the hearing, at the conclusion of the applicant's evidence, I invited the parties to make submissions on whether the applicant had established a prima facie case of discrimination or reprisal, referring to the general principles outlined above.

16In order to prove age discrimination the applicant must show that her age was a factor in denying her a promotion. In Nelson v. Lakehead University, 2008 HRTO 41, a case referred to the Tribunal by the Ontario Human Rights Commission, the Tribunal adopted the principle that:

(...) the legal definition of a prima facie case does not require the Commission to adduce any particular type of evidence to prove the facts necessary to establish that the complainant was the victim of a discriminatory practice. (para. 36)

17The question put by the Tribunal in Nelson was whether there was

sufficient evidence adduced by the complainant and Commission to establish that the complainant was a victim of discrimination on the basis of age in the absence of a response from the respondents. (para. 36)

This is the approach I will apply to my determination in this Application.

18The Code defines harassment as "engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome." There is both a subjective and objective element to what may be considered harassment under the Code. See Streeter v. HR Technologies, 2009 HRTO 841. In order to prove harassment on the basis of age, the applicant must show that the respondents engaged in a course of vexatious comment or conduct that they knew or should reasonably have known was unwelcome and further, that this course of comment or conduct was because of her age.

19In order to prove reprisal, the applicant must establish that the Board engaged in an action, or threat, which was intended as retaliation for the claiming or enforcement of a right under the Code. Unlike an allegation of discrimination, where intention is not a necessary element to prove a violation, where reprisal is alleged, the applicant must establish that the action was taken with an intent to punish or retaliate: Noble v. York University, 2010 HRTO 878.

20I now turn to a summary of the relevant evidence.

AGE DISCRIMINATION IN DENIAL OF PROMOTION

21The promotion and selection of Vice-Principals and Principals is governed by a Board policy titled "Principal/Vice-Principal Selection, Promotion and Transfer Process." Teachers who are interested in promotion to a position as a Vice-Principal or Principal must complete an application form, which requires inclusion of the applicant's resume highlights, copy of the College of Teachers Certificate of Qualification and names of referees.

22Candidates are screened and interviewed and, if accepted, placed on one of four promotion lists (Vice-Principal Elementary, Vice-Principal Secondary, Principal Elementary and Principal Secondary). Once on the list, the candidates periodically complete a Placement Request Form which provides information about their strengths and interests, includes their resume highlights and indicates their preference for region. The Board's Policy indicates that promotions occur twice a year (once in December/January and once in September); candidates must therefore complete these Transfer Request Forms in mid-October and mid-February for consideration for promotions. According to the Board's Policy, a candidate may remain on the list for up to two school years, with the possibility of an extension of a further two years. From the documentary evidence, it appears that some candidates remain on the list for longer. According to the Policy, candidates whose time on the list expires without a promotion may re-apply for inclusion on the list.

23Vacancies for administrative positions within a school are filled through bi-annual Transfer and Promotion Meetings, attended by Board Superintendents. At these meetings, Superintendents arrive at a recommended list of candidates to fill vacancies, including transfers and placements from the promotions list. According to the Board's Policy, Superintendents then consult with their local Board Trustee and the designated parent representative with the school, and report back to the Chair of the Meetings with confirmation. Superintendents are also to consult with the school Principal about a candidate being considered for promotion or transfer.

24Under the Meeting process, transfer requests are considered first and then vacancies. Vacancies are filled taking into consideration school needs, and in accordance with a sequence of candidates starting with administrators whose schools are scheduled to close at the top, and candidates on the promotion lists at the bottom.

25The applicant successfully completed the process for placement on the promotion list and was added to the Elementary Vice-Principal Promotion List in February 2006. At the time, there were approximately 100 other teachers on this list. Some were placed on the list at the same time as the applicant, while others had been on the list for a year or more. Most were teachers working within the Board; a few were external candidates. The applicant remained on the list until November 2007. During the time she was on the list, she completed a number of Placement Request Forms, but was unsuccessful in receiving a promotion. She decided to take herself off the list. She stated that she was forced to withdraw from the list, because of her heavy workload and the harassment she was experiencing.

26During the time the applicant was on the list, approximately 27 of the candidates received promotions. The applicant alleges that the Board discriminates against older teachers in selecting teachers for promotion, and that she did not receive a promotion during the time she was on the list because of her age. At the time she was on the promotion list, the applicant was in her late 50's. The applicant alleges this discrimination occurred in both a general and a specific way. She asserts that promotions during the time she was on the list favoured younger teachers and the failure to promote her must therefore have been because of her age. She also asserts that she failed to be promoted to Vice-Principal at her own school in 2006, because of her age. Instead, a younger candidate (the respondent Neville) was given that position.

27The applicant relies on the fact that the Board requires teachers to submit their Certificates of Qualification from the Ontario College of Teachers at the time they apply to be placed on the promotion list, and with each Placement Request. These Certificates show the date on which teachers obtained their teaching qualifications, as well as any university degrees. The applicant submitted into evidence the Certificates for 26 of the 27 candidates promoted; of these, twenty obtained their teaching qualifications in the 1990's. The applicant's Certificate shows that she obtained her Ontario Teacher's Certificate in 1969.

28Although the applicant does not know the birth dates for the teachers who were promoted, she submitted that it is reasonable to conclude that the teachers receiving their qualifications in the 1990's are for the most part younger than those receiving their qualifications earlier, although she acknowledges that some teachers enter the profession as a second or third career. She also acknowledges that some of the individuals who were promoted were similar in age to her. She states that "when you look at the population, we need more representation from people in my age range, to make things more equitable."

29Although the applicant states in her Application that teachers are asked to provide their birth date on a piece of paper when they are asked to confirm their teaching experience each year, there was no evidence in support of this at the hearing. Nor was there evidence to establish that a teacher's birth date is ever requested by the Board in making assignments or promotions.

30The applicant acknowledged in cross-examination that there were many other individuals on the promotion list who were also not promoted during this time. She has no information about their ages, whether they are older or younger than her, or the dates when they obtained their teaching qualifications.

31The applicant also stated in answers to cross-examination that although she obtained her teacher's Certificate in 1969, she did not teach, other than occasional supply teaching, between 1971 and 1988 when she joined the Board. Thus, while the Certificate shows that she obtained her teaching qualifications much earlier than most of the individuals promoted, her full-time teaching career actually began at about the same time as some of those individuals.

32It was put to the applicant that because she had taken a long hiatus in teaching, it was possible that teachers of her age, who went directly into teaching, had gone through the promotion process earlier than her and were already represented in the Board's population of Principals and Vice-Principals. The applicant objected to the suggestion that in terms of her teaching career, she was in a "younger cohort" than her biological age group.

33Other than the Vice-Principal position at Lord Dufferin which was filled by Susan Neville, the applicant did not identify any particular promotion that she believes, but for her age, she should have been given. As this was not apparent from her materials, during the hearing, I asked the applicant whether she claims that any of the 27 promotions she identified should have been offered to her. The applicant stated that she did, but when asked to identify which ones, she declined to. The applicant stated that she bases her claim of age discrimination on the fact that other individuals, whom she believes to be younger, were promoted and she was not, and on the requirement to submit the Certificate of Qualification during the promotion process (which could be used to approximate the age of candidates).

34In her Placement Request Form, the applicant indicates the Board regions to which she is interested in being promoted. Of the 27 promotions, 16 are found in those regions but again, the applicant did not state which, if any, of those 16 promotions she believes should have gone to her, despite being asked.

35The applicant testified that she approached a Superintendent with the Board at a meeting and told him that she was uncomfortable with the fact that her teaching Certificate shows when she graduated. She asked him whether she should be concerned about this and he responded that "I would find other interests if I were you." This Superintendent is one of about 30 with the Board, but does not have responsibility for the region within which the applicant teaches. He attends the meetings at which promotion decisions are made, along with the other Superintendents of Schools. There was no other evidence about this Superintendent's role in any of the events at issue.

36With respect to the allegation of discrimination regarding the promotion within Lord Dufferin, the applicant relies on the record of her abilities and accomplishments, and the criteria for the position. The applicant testified that in addition to the general qualifications to be a Vice-Principal, Lord Dufferin had its own criteria, which she met and the other candidate did not.

37In her Application, she alleges that she was denied the promotion at Lord Dufferin ostensibly on the basis of a policy against promotions within the same school. She believes that this policy was a pretext for discrimination, in that she does not believe it has been consistently applied. The applicant asserts that this policy did not prevent two younger teachers with a background at Lord Dufferin from receiving promotions there in January 2008. She therefore believes that the true reason for denying her the promotion in June 2006 was her age.

38The applicant agreed in cross-examination that there is a legitimate rationale behind the policy against promotion of teachers from within the same school, relating to the possible issues raised by having a recent colleague conducting evaluations. When asked about the teachers whom she believes were promoted despite the policy, she agreed that one of them, Leigh Haines, worked at Lord Dufferin only one day a week as an itinerant guidance teacher. She also agreed that the other teacher who was promoted to Principal at Lord Dufferin, had worked at Lord Dufferin for some years but just prior to his promotion was a Vice-Principal at another school. Nevertheless, she believes that these examples contradict the reason that was given for not promoting her.

39The applicant does not contest the above two promotions, which occurred after she withdrew from the promotions list, but she relies on them to rebut the explanation offered by the Board for the failure to promote her in 2006.

HARASSMENT BECAUSE OF AGE

40The applicant described a number of incidents between 2006 and 2008 that she believes amounted to harassment of her on the basis of her age. They include matters such as lack of consultation from the school Principal on student support issues, being given a challenging timetable to teach with inadequate preparation time, inadequate support from the school administration on student discipline issues, and being questioned about her homework policy as a result of a parent complaint.

41The applicant bases her claim that the harassment was based on age on the fact that the Superintendent under whose direction her school operates, is the same Superintendent that denied her a promotion because of her age. She stated that she never had any problems at work until she had to submit her Certificate of Qualification to this Superintendent as part of the promotion process.

42The applicant alleges that a number of actions taken by the Principal and Vice-Principal between the spring of 2007 and early 2008 amounted to harassment and attempts to "set her up to fail." Among the allegations are:

• Undermining her work with at risk students
• Assigning her to teach Grade 8 when there were younger, more qualified teachers available
• Re-assigning the work of supporting the School Council to a younger teacher;
• Re-assigning her duties as a MART (Methods and Resources) teacher, with responsibilities for special education students, to a younger teacher
• Giving her an onerous timetable with inequitable preparation time
• Being denied access to the school in August 2007 in order to prepare for the school year
• Providing insufficient support with difficult students
• Assigning her extra supervision duties
• Questioning her homework policy in response to a parent complaint

43The applicant also described being spoken to dismissively or disrespectfully by the respondent Alimi. She attributed these actions to age discrimination.

44She alleges that the above and other actions amounted to a "persistent pattern of bullying" by the Superintendent Alimi and the two school administrators Kroeker and Neville. She felt that she was being targeted and bullied. The applicant states in her Application that the turning point, when she came to this realization, was in January 2008 when she was told that a student was being moved from her class to another class. This action was taken by a new Principal, not the personal respondent Kroeker.

45The applicant called the Ontario Human Rights Commission on January 10, 2008. She states that she was told "get out of there as fast as you can and don't ever go back. They will never stop. They never stop." She states that she called her union and her doctor, worked one more day and went home. As of January 14, 2008, she went on a medical leave. Her doctor wrote a letter on January 14, 2008, stating that the applicant's "current medical status would require that she be immediately relocated to a different area and with a different grade level. As well, it is recommended that she be assigned to an area by which she has had recent experience in teaching (i.e. in the past 5 years)." The doctor felt that under those conditions, the applicant could return to work on February 25.

46The Board asked the applicant to see its own doctor, which she did on or about February 26. This doctor did not feel that she was ready to return to work at that time. The applicant remained off work for the month of March. At the beginning of April, the applicant was placed in a school that met the conditions specified by her doctor; teaching kindergarten at another elementary school (Whitney).

47The applicant was re-assigned again in May 2008 to teach kindergarten in another elementary school (R.H. McGregor). She had some concerns about this placement and spoke to her union representative, who then negotiated a move to another elementary school, Indian Road Crescent, for September 2008.

REPRISAL

48The applicant decided to contact the Board's Human Rights Office in February 2008. She met with the Manager of this Office, submitted a formal complaint in March and then, in May 2008, met with an investigator from the Board. The applicant states that she felt that requests to her that she re-write her complaint, including listing the persons whom she believed to be responsible for the harassment, were "bullying" and that she felt "extremely unsafe." She came to the conclusion that it would be "unsafe and unwise" to continue without an outside investigator and this is why she then chose to bring this Application.

49During their initial discussion, the applicant showed the Manager of the Human Rights Office her teaching Certificate. The applicant states that the Manager acknowledged that the Certificate "could be used to discriminate" on the basis of age "when you do the math", and that in the promotion process, "someone could think there aren't many years left to work as an Administrator."

50During the hearing, the applicant provided the particulars of her allegation that the Board engaged in reprisals against her as a result of her human rights complaint:

• On March 19, 2008, she received correspondence from the Board's Employee Benefits office, advising her about her options for benefits coverage as she was on a leave of absence without pay. The applicant does not dispute that her sick leave entitlements had been exhausted. It is not clear whether the applicant in fact missed any pay. She requested help from her union representative, and received her regular pay on March 26. The applicant states that this situation caused her great stress for about a week, and she believes that this letter was sent intentionally to frighten her.
• One of the letters sent from the Tribunal to the parties in this Application showed the Board's counsel as the representative of her union, as an affected party. The applicant believes that this was a reprisal. She described it as "one of the most hurtful reprisals", which she interpreted as the Board deliberately placing a barrier between her and her union.
• The applicant had a position of responsibility at Lord Dufferin that provided her with $2000 a year in extra income. With her re-assignment away from Lord Dufferin, another teacher took over that work, and this payment to her stopped.
• Her links to Lord Dufferin on the Board's internal internet communications network was discontinued after she was re-assigned from Lord Dufferin.
• The applicant felt that the teacher who was responsible for orienting her to her assignment at R.H. McGregor was manipulative and controlling, although the applicant stated she was not sure it was intentional.
• The applicant was assigned to a school starting in September 2008 that is in the High Park area, a greater commute for her than previously as she lives in the Beaches area of Toronto.
• The applicant states that the Board now requests teachers to attach their Certificates when indicating their teaching preferences for the following year.

SUBMISSIONS OF THE PARTIES

51The applicant describes the "heart of the problems" as the use of the Certificate of Qualification, issued by the Ontario College of Teachers, in the Board's promotion process. Because the Certificate shows when teachers receive their teaching education, it can be used to approximate age. The applicant attributes her failure to be promoted during the time that she was on the promotion list to the fact that her Certificate was part of the materials available to the Board in making its decisions.

52Further, the applicant attributes the workplace harassment she described to the fact that the Superintendent responsible for her school was in receipt of her Certificate. Although many of the actions were taken by the Vice-Principal and Principal, the applicant believes that as the Superintendent is ultimately responsible for giving final approval to everything, and that Superintendent was aware of her Certificate, these actions amounted to harassment based on age.

53In sum, the applicant believes that the Superintendent did not support her promotion to Vice-Principal because of her age, and that the harassment she experienced in the workplace was also age-based because of the same Superintendent's ultimate authority over the school.

54The respondents submitted that although the applicant may have a sincere belief that she was not promoted because of her age, and that the individual respondents deliberately created a work situation that was untenable for her, because of age-related animus against her, there is no reasonable basis for these beliefs. Further, although the applicant may sincerely believe that actions were taken against her following her contacts with the Board's Human Rights Office, there is also no basis in the evidence for her belief.

55The respondents submitted that nowhere in any of the evidence is there any linkage between the events that the applicant described, and her age. There is no direct evidence that any of the respondents held her age against her.

56With respect to the teachers' Certificate, the respondents argue that the evidence establishes that the Board has legitimate reasons for requiring teachers to submit their Certificates.

57Further, the respondents submitted that based on the applicant's teaching history, and the fact that she took almost a twenty-year hiatus from teaching, her level of experience is more comparable to teachers twenty years younger than her, than to teachers in the same biological age group. When this is taken into account, the applicant is not part of an "older" cohort of teachers looking for promotions, but in fact is somewhere in the middle. The respondents also state that since the applicant made a decision to remove herself from the promotion list prematurely, she reduced her chances of promotion. Taking all of her evidence into account, she has not established any age-related reasons for the failure to promote her.

58The comment made by Superintendent McLean is not a sufficient basis for a conclusion that age is a factor, absent any evidence about his role in any promotion decisions. One isolated comment cannot result in attributing motive to the entire Board organization.

59The respondents also submitted that in the applicant's evidence about the alleged age-related harassment, no connection to her age is established. Many of the allegations were simply not borne out on the applicant's evidence. Further, even if there were instances in which, as claimed, younger teachers were given better assignments or given some of the applicant's duties, there is no context for this, such as the general age makeup of all the teachers at the school. The applicant's evidence is anecdotal and selective and cannot be the basis for a conclusion about age-based discrimination or harassment.

DECISION

Age-Based Harassment

60I am not convinced that the applicant has provided a "complete and sufficient" basis to lead to a conclusion that she was harassed in the workplace on the basis of her age. To begin with, although the applicant described a number of issues in the workplace that she felt amounted to age-based harassment, there is no obvious link to age in many of them. For example, she stated that she received inadequate support from the school office in dealing with difficult students. She believed that the school administration was frequently unavailable when she needed assistance. There is no obvious link to age on these facts. There was no evidence that other teachers, regardless of age, were not also affected by these events.

61As another example, the applicant stated that in previous years, as the MART teacher, she was given notice of IPRC meetings in the school. Beginning in the fall of 2006, she received insufficient notice of these meetings to enable her to attend. Again, there is no obvious link to her age on these facts.

62The same holds true for a number of other incidents that the applicant describes as part of the pattern of age harassment. The applicant described being spoken to in a dismissive tone of voice, not being thanked for work, being coughed at, all of which, even if true, might amount to rude or unfair behaviour but not harassment based on age. As well, the applicant testified about being questioned by the Superintendent about a parent complaint about her homework policy, which has no obvious link to her age.

63Where there is no apparent link to age, as in the above examples, there must be other evidence that supports an inference that the alleged harassment was based on age, and on my assessment, the evidence is lacking.

64Other instances where the applicant alleged unfavourable treatment amounting to harassment in her written materials were not established on her oral evidence. The applicant maintained that she was given more supervision duties than other teachers. In her evidence, there was again no obvious link between this and her age. But it also became apparent in her evidence, during cross-examination, that the basis for her perception of unfavourable treatment was not based on any observation of how much supervision time other teachers were given, but on comments made by John McCaughey, who testified on her behalf. The applicant stated in her evidence that she did not know how much supervision time other teachers were given and in fact did not pay attention to what other people had. When this Principal testified, he stated that there are always issues with teachers' timetables. He confirmed that the change he made to the applicant's supervision time was part of a package of adjustments he made in the fall of 2007 that included a number of teachers' schedules, at least one of whom had been given even more supervision time than the applicant.

65Likewise, when the applicant was cross-examined about her perception that she had an unduly onerous timetable, it became apparent that other teachers had similar challenging timetables. This was also reflected in the evidence of one of the applicant's witnesses, John McCaughey. There was evidence to the effect that the challenges faced by the applicant were particularly difficult. She was assigned to teach Grade 8 in 2007-2008, although she had not taught Grade 8 in some time and her most recent assignments were to MART and student support responsibilities, as well as Kindergarten in the spring of 2007. Even if I accept all the applicant's evidence on the difficulties she experienced in this new assignment, and the inadequate assistance she received from the school administration, I cannot reasonably draw any inference that this experience was part of a concerted effort, because of her age, to "set her up to fail" as claimed.

66In some instances, the applicant did testify that specific duties were re-assigned to a younger teacher, such as her work with the School Council and her MART duties. Even if true, this fact alone would not be a sufficient basis for a finding of age-based harassment and there was a lack of other evidence from which an inference could reasonably be drawn that such a re-assignment was part of such harassment.

67The applicant also indicated that there were younger teachers available to teach certain subjects that she was assigned, who had more relevant experience in those areas. Even if true, this does not lead to a conclusion that this amounts to harassment on the basis of age. She alleges broadly in her Application that certain younger teachers were given their teaching preferences and she was not. Specific evidence to support this was lacking and again, the link to age cannot reasonably be made.

68In the end, the applicant made the link between her age and what she perceived as workplace harassment in two ways. First, with respect to some of the events, she asserted that younger teachers were favoured over her. Second, she believes that her unfavourable treatment was ultimately at the instigation of the Superintendent that she holds responsible for the failure to promote her on the basis, allegedly, of age.

69The purported connection between the events described as harassment on the basis of age and the Superintendent responsible for promotion decisions is speculative. I cannot draw from these events any reasonable inferences that the various matters about which the applicant complains have a basis in her age.

70Even if I accept that in a few instances, the applicant was treated less favourably than younger teachers (a group she defines as being under 45 years old), this would not be a sufficient basis for a finding that this amounts to harassment on the basis of the applicant's age. In the absence of other evidence which supports an inference that the unfavourable treatment was based on age, the plain assertion that the applicant is a member of group associated with a prohibited ground (older teachers) and that she experienced unfavourable treatment in the workplace in certain ways is not a sufficient basis for a finding of harassment based on age.

71The applicant alleges in her Application that her Principal and Superintendent refused to help her. She alleges that she told her Principal in September 2007 that she was being "targeted" by the Vice-Principal. The applicant states that this Principal has a "duty to respond" under the Board's Workplace Harassment Policy, but that he did nothing to help her deal with the harassment issues. Specifically, she states that despite frequent requests to this Principal to change the timetable, preparation time schedule or teaching assignment to help improve the situation, she was told that nothing could be changed.

72The Tribunal has stated that included in the right to employment without discrimination or harassment is a duty on an employer to investigate a complaint of discrimination or harassment: Laskowska v. Marineland of Canada Ltd., 2005 HRTO 30. The employer's duty to investigate is held to a standard of reasonableness, not correctness or perfection.

73The evidence of the applicant does not establish that she brought concerns about age-based harassment to her Principal in September 2007, or to her Superintendent. On this basis, I am not convinced that she has provided a complete and sufficient basis to conclude that any alleged inaction on the applicant's complaints about her timetable, preparation time schedule or teaching assignment amounted to a breach of the Code by her employer.

74As indicated above, the applicant felt that some of her interactions with the Board's Human Rights Office and investigator were an extension of the "bullying" she was experiencing. For completeness and clarity, I do not find her evidence about these interactions provide any basis for a conclusion that the Board failed in its duty to respond to her complaint. Ultimately, the applicant chose not to pursue the Board's internal process, and brought her Application to the Tribunal.

Reprisal

75I am also not convinced that the applicant has provided a complete and sufficient basis to lead to a conclusion that the Board engaged in reprisals against her within the meaning of the Code. There is no evidence from which I could reasonably draw an inference that any of the actions said to constitute reprisals were taken with the intention of punishing the applicant for making a human rights complaint.

76It is apparent from some of the events that the applicant views as a reprisal that she is quick to ascribe malevolent intent to apparently neutral actions. Despite my explanation during the hearing that the Tribunal had made a clerical error in listing Board counsel as the union's representative, she continued to maintain her position that this reflected a reprisal on the part of the Board, and an intentional effort to drive a wedge between her and her union. Rather than making inquiries about this at the time, which would have quickly clarified the error, she chose to view this as part of a series of reprisal actions against her.

77There is also no basis for viewing the other events as reprisals. Even on the applicant's evidence, there were explanations for the actions taken which do not support an inference of reprisal. The applicant's sick leave ran out on or about March 17. The letter sent from the Employee Benefits Office is evidently based on that fact. There is no reason to conclude that this Office knew anything at all about the applicant's discussions with the Human Rights Office. The applicant's union representative worked to reach a resolution and there was no adverse effect on her pay. And at the time, the applicant's union representative was also in discussions with the Board about returning her to work, which occurred within a few weeks.

78The transfer to Indian Road Crescent school in September 2008 was effected through her union representative, and as a response to her concerns about her assignment at R.H. McGregor, and there is no basis to view this as a reprisal.

79There is no basis to view any of the other actions alleged to be a reprisal as having any link to the applicant's human rights complaint.

80As a final comment on the reprisal allegation, I note that the applicant clearly concludes from the comments made by the Manager of the Board's Human Rights Office that the Board had acknowledged that its promotions process discriminates on the basis of age, simply because it asks for teachers' Certificates. This was offered by the applicant as the reason why she believes it is a reprisal for the Board to also require the Certificates as part of the yearly process of expressing preferences for the following year's teaching assignments.

81Not only is there no basis for viewing this as a reprisal, her conclusion about the use of Certificates is unreasonable, for reasons elaborated below.

Failure to Promote

82The applicant applied for a promotion to the position of Vice-Principal at Lord Dufferin in the spring of 2006, to be effective September 2006. She was not promoted and instead another individual on the promotions list, Susan Neville, was given the position. Susan Neville was approximately twenty years younger than the applicant at the time.

83The applicant believes that she was denied this promotion because of her age. Her evidence in support of this allegation can be summarized as follows:

• The applicant met the minimum qualification requirements for a promotion, having been placed on the promotion list.
• She remained on the list for some 21 months without receiving a promotion;
• At least twenty of the twenty-seven individuals promoted during the time the applicant was on the promotions list received their teaching qualifications in the 1990's. The applicant received hers in 1969;
• The applicant met all of the school-based qualifications for promotion to this position except for the staff's preference for an individual with Vice-Principal experience. The successful candidate did not have experience with the particular community served by the school, which was identified by the Principal and parents as important;
• The Principal thought that the applicant was the ideal candidate;
• In addition to Ms. Neville, the two other individuals receiving promotions into this school in the following two years also received their teaching qualifications in the 1990's.

84I find that the applicant has provided a prima facie case in support of her claim of age discrimination with respect to this promotion that requires a response from the Board. I do not intend to provide any assessment of the strength of the applicant's case at this point other than to indicate that there is sufficient evidence "that would make a reasonable person say that the employer has some explaining to do." See Potocnik, above. A more thorough assessment of the case is more appropriate once all of the evidence has been heard.

85However, I will address one issue raised in connection with the promotion allegations, and that is the applicant's contention that the Board's request for teachers' Certificates during the promotions process is in itself discriminatory. As indicated above, the applicant was much influenced in her views on this issue by the statement of the Board Manager to her that the Certificate "could" be used to discriminate. Clearly, having knowledge that might permit a reasonable estimate about a person's age "could" be used to discriminate, just as knowledge about a person's race, ethnic origin, colour or another ground under the Code. But it does not mean that simply having that knowledge is discrimination in itself, or proof of discrimination in itself.

86Requesting a teacher's Certificate is also neither discriminatory nor proof of discrimination. The applicant refers to the Commission's document "Human Rights at Work 2008", where it suggests that employers should not even ask for a Drivers' License as it can be used to identify age. This recommendation of the Commission should not be taken as a statement of the law, and in any event does not support the applicant's position. The information on the Certificate is not meaningfully different from that found on most persons' resumes, which typically show education, job experience, and the dates those were obtained. In fact, the applicant's own resume, which she prepared and submitted to the Board, shows the various dates on which she obtained her relevant experience and qualifications.

87I also note that teachers' Certificates are freely available on the website of the College, so that even without a request, the Board has access to them just as anyone else. There is no basis for concluding that the Board's practice of requesting teachers' Certificates is in itself discriminatory, without any other evidence that it is actually used as a way of adversely affecting the job prospects of older teachers.

88The applicant was asked about her position on the teachers' Certificates in her cross-examination and agreed that the Board has a legitimate interest in the information on teachers' Certificate. Among other things, the pay scale for teachers makes distinctions based on qualifications.

89Apart from the specific position at Lord Dufferin, I find that the evidence does not provide a complete and sufficient basis for a conclusion that her failure to be promoted during the 21 months that she was on the promotions list was due to age discrimination. Apart from the Lord Dufferin position, the applicant did not identify any other vacancy that she believes was denied to her on the basis of age. The applicant's claim in this regard is essentially based on the fact that her teacher's Certificate allows inferences to be made about her age, that the teacher Certificates of the individuals receiving promotions suggests they are significantly younger than her, and that the Board had vacancies at the time, none of which were offered to her.

90The applicant relies on the Tribunal's decision in Edwards v. Waterloo Region District School Board, 2009 HRTO 215 regarding what constitutes a prima facie case in the context of a hiring or promotion issue, and states that there is a "low threshold".

91In Edwards, a case where the Tribunal was considering a request to dismiss based on the written complaint, the applicant alleged discrimination on the ground of colour in being denied a specific position which was awarded instead to a less qualified white male I find Edwards is distinguishable from the matter before me. Here, the evidence at its highest would show that most of the successful candidates received their qualifications several decades after the applicant. From this, it may also be inferred that many of the successful candidates are younger than the applicant. However, it must be remembered that the applicant also took a 18 year hiatus from the teaching profession. While the applicant met the minimum qualifications for promotion many other individuals were not promoted during this period also met these minimum qualifications.

92The applicant declined to specify which positions she should have been awarded but for her age. She also withdrew from the list before completing the full term within which she might have qualified for promotion. Finally, there was nothing in the applicant's evidence that suggested that the Board's requirement for teachers' Certificates was a pretext for age discrimination.

93Having regard to the above, and apart from the position at Lord Dufferin, I find that the applicant has not provided a complete and sufficient basis upon which to make the factual findings necessary in order to conclude that the failure to promote the applicant to any of these positions infringed her rights under the Code.

94In sum, the Tribunal will re-convene this hearing to receive the respondents' evidence on the allegation that the failure to promote the applicant to the position of Vice-Principal to Lord Dufferin in 2006, and the decision to select the respondent Neville instead, was based at least in part on the applicant's age. The respondents have filed will say statements from the three individual respondents. On my review of these will say statements, the evidence before me and given my findings above, it is only necessary to hear from the respondent Alimi on the decision to select the respondent Neville for the position and the decision not to select the applicant .

95The Tribunal will therefore schedule one day of hearing. If any party has additional documents they wish to rely on in connection with this outstanding issue, it must deliver them to the other parties and file them with the Tribunal no later than 3 weeks prior to the date scheduled for this hearing. If the respondents wish to file an additional will say statement from the respondent Alimi, it must be filed by this same date.

96I am seized.