Adolfo Makuntima v. Toronto Catholic District School Board and Olimpia Crosby, 2011 HRTO 1565

Human Rights Tribunal of Ontario

B E T W E E N:

Adolfo Makuntima

Applicant

-and-

Toronto Catholic District School Board and Olimpia Crosby

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee Date: August 19, 2011 Citation: 2011 HRTO 1565 Indexed as: Makuntima v. Toronto Catholic District School Board

WRITTEN SUBMISSIONS BY

Adolfo Makuntima, Applicant ) Grace A. Permaul, Counsel

1The purpose of this Interim Decision is to decide whether the Tribunal should dismiss the Application on a preliminary basis because it is outside the Tribunal’s jurisdiction.

2The applicant, who identifies as Black and from Africa, is a teacher at a school within the Toronto Catholic District School Board. He identified Olimpia Crosby as the principal of the school.

3On March 7, 2011, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondents discriminated against him with respect to employment because of his race, colour and ethnic origin.

4In section 8 of the Application (“What Happened”) and section A13 of Form 1-A of the Application (“Explain why you believe you were discriminated against because of your race, colour… or ethnic origin”), the applicant alleged that the respondents mistreated him, but did not connect the mistreatment to his race, colour and ethnic origin.

5On May 24, 2011, the Tribunal’s Registrar issued the applicant a Notice of Intent to Dismiss, which informed him that the Application appears to be outside of the Tribunal’s jurisdiction because the Application and the narrative setting out the incidents of alleged discrimination fail to identify any specific acts of discrimination within the meaning of the Code. The Tribunal invited the applicant to provide written submissions to explain how the respondents are alleged to have breached the Code.

6On July 4, 2011, the applicant’s counsel filed submissions which stated that the respondents subjected the applicant to harsh and severe treatment that his non-racialized colleagues were not subjected to. The applicant’s counsel also named a witness, who, she stated, will support the applicant’s allegation that the mistreatment was related to his race, colour and ethnic origin.

7Rule 13.1 of the Tribunal’s Rules of Procedure provides that the Tribunal may dismiss an application that is outside the jurisdiction of the Tribunal. Rule 13.2 further states that where it appears to the Tribunal that an application is outside its jurisdiction, it shall, prior to sending the application to the respondent, issue a Notice of Intent to Dismiss the Application. The Notice is only sent to the applicant, and requires him or her to file written submissions. Under the Tribunal’s jurisprudence, an application will only be dismissed at this preliminary stage if it is “plain and obvious” on the face of the application that it does not fall within its jurisdiction: Masood v. Bruce Power, 2008 HRTO 381, Morin v. Alliance de la fonction publique du Canada, 2008 HRTO 58, and Hotte v. Ontario (Finance), 2008 HRTO 63.

8In my view, given that the applicant’s submissions connect his alleged mistreatment to his race, colour and ethnic origin, it is not plain and obvious that the Application is outside the Tribunal’s jurisdiction.

9The Tribunal shall serve the Application, the applicant’s written submissions and a copy of this Interim Decision on the respondents.

10In her submissions, the applicant’s counsel requested that the Tribunal not disclose the name of the witness to the respondents at this time in order to protect the witness. The request is denied. The applicant’s counsel named the witness and discussed her proposed evidence in six paragraphs of her submissions, and it was clearly material to both her submissions and this Interim Decision. I would add that the witness is protected by section 8 of the Code, which states that every person has a right to participate in proceedings under this Act without reprisal or threat of reprisal for so doing.

11I am not seized of this matter