Ian Mandelzys v. York Region District School Board, 2011 HRTO 1779

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, Helen Fox, and Carol Diamond Respondents

AND BETWEEN:

Ian Mandelzys Applicant

-and-

York Region District School Board, Helen Fox, Carol Diamond, Chris Sarellas and Fraser Scott Respondents

INTERIM DECISION

Adjudicator: Naomi Overend Date: September 29, 2011 Citation: 2011 HRTO 1779 Indexed as: Mandelzys v. York Region District School Board

1The applicant filed three separate Applications under the Human Rights Code, R.S.O 1990, c. H.19, as amended (the "Code"), which were consolidated in a previous Interim Decision (2010 HRTO 566). The first Application, dated June 30, 2009, 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. Applications 2008-00851-I and 2009-04455-I were filed directly with the Tribunal under s. 34 of the current Code on December 1, 2008 and December 30, 2009 respectively.

2The purpose of this Interim Decision is to address the respondents' requests to remove the personal respondents from Applications 2008-00851-I and 2009-04455-I. This issue has already been addressed by the Tribunal with respect to TR-0721. In the previous Interim Decision, Vice-chair Hart made the following observations, which I adopt, with respect to the respondents' request:

11. The 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.

12. In 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.

13. The 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.

14. With 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.

15. On 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.

APPLICATION 2008-00851-I

3The applicant names six individual respondents in this Application. One of these individual respondents Helen Fox, Superintendent of Education, is named in each of the three Applications and was personally and directly involved in the events spanning all three Applications. She was maintained as an individual respondent in the previous Interim Decision concerning TR-0721, and it is appropriate to maintain her as an individual respondent in this and Application 2009-04455-I.

4Carol Diamond was the applicant's principal during the time span covered by this Application. She is identified as being involved in most of the allegations with respect to this Application. For the reasons discussed in the earlier Interim Decision it would not be appropriate to remove her as an individual respondent.

5On the other hand, Ken Shigeishi, who was at the time vice-principal at the school at which the applicant taught, was referenced only once (allegation 36 of 40) and with respect to this particular allegation he and Carol Diamond met with the applicant. There is no indication in the Application that his role is central to the applicant's allegations of discrimination. It would not be appropriate to maintain him as a respondent to this proceeding.

6Likewise, the three individuals working for the respondent Board (Bill Hogarth, Director of Education; Chris Tulley, Coordinating Superintendent of Education, Human Resource Services; and Teresa Estriga, Case Manager, Disability Management Program) are mentioned only in respect of the applicant notifying them of the situation and them not immediately responding. For the reasons discussed in the earlier Interim Decision, it is not appropriate to maintain them as respondents to this proceeding.

APPLICATION 2009-04455-I

7The applicant names nine individual respondents in this file in addition to the organizational respondent. The respondents request that all nine of these individuals be removed. The applicant opposes the removal of any of them.

8As noted by Vice-chair Hart, there is a direct overlap and continuity of events in this Application 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. They are central to allegations 1-9 of this Application and it is appropriate to maintain them as respondents.

9Likewise, Chris Sarellas and Fraser Scott, the applicant's principal and vice-principal at Vaughan Secondary School, are central to his allegations of discrimination once he transferred to that school in January 2009, and it is appropriate to maintain them as respondents.

10However, with respect to the remaining individuals they are either not named individually at all in the allegations or, in the case of Dorothy Cammaert and Leslie Johnstone, named only peripherally in the allegations.

11The applicant's written submissions on the respondents' request to remove the individual respondents indicate that he believes that these individuals either encouraged/condoned discrimination because they were informed about it by the applicant and did nothing; advised Chris Sarellas (one of the principals who he alleges engaged in discrimination); or conspired with Carol Diamond and Helen Fox (another two of the individual respondents) to hide their involvement in the investigation of him. The applicant is not alleging that these people were directly involved in the alleged discrimination against him. His theories with respect to their involvement can best be described as speculative and it is not surprising that they are not set out in the particulars found in his Application.

12Moreover, the applicant's submissions with respect to these individuals seems to suggest that he believes they should be singled out for condemnation, not that he is seeking individual remedies from them. The point of human rights legislation, however, is to compensate the person discriminated against, not punish the perpetrators. It would not be appropriate to maintain these five individuals as respondents to this proceeding for what appear to be punitive reasons.

ORDER

13For all of these reasons, I hereby make the following order:

a) Ken Shigeishi, Bill Hogarth, Chris Tulley and Teresa Estriga are removed as individual respondents to Applications 2008-00851-I, and the title of proceeding is amended accordingly; and

b) Bill Hogarth, Allan Hoyle, Dorothy Cammaert, Chris Tully and Leslie Johnstone are removed as individual respondents to Application 2009-04455-I, and the title of proceeding is amended accordingly.