Lloyd v. Wellington Catholic District School Board, 2011 HRTO 1922

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jesse Lloyd

Applicant

-and-

Wellington Catholic District School Board

Respondent

DECISION

Adjudicator: Geneviève Debané

Date: October 25, 2011

Citation: 2011 HRTO 1922

Indexed as: Lloyd v. Wellington Catholic District School Board

1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on March 28, 2011 alleging discrimination in employment on the basis of creed (“the March 2011 Application”). Within the body of his Application, the applicant alleges that section 13, which deals with an “announced intention to discriminate”, applies in the circumstances of his case.

2In Lloyd v. Wellington Catholic District School Board, 2011 HRTO 238 (“the February 2011 Decision”), the Tribunal dismissed another Application filed by the applicant dated June 8, 2009 (“the June 2009 Application”), in which he alleged discrimination in employment on the basis of creed against same respondent, because the on-line application form asked for, amongst other things, a pastoral letter. The June 2009 Application was dismissed for delay as it was filed outside the one year limitation period established by section 34(1) of the Code.

3On April 18, 2011, the Tribunal issued an Interim Decision 2011 HRTO 752 directing the parties to provide submissions on whether the applicant should be able to proceed with his March 2011 Application and whether the principles of res judicata and/or issue estoppel and/or delay apply. The respondent was advised that it did not need to file a Response to the Application at this time.

4On May 21, 2011, the respondent provided detailed submissions and case law in support of its position that the March 2011 Application should not proceed based on the doctrines of issue estoppel, res judicata and delay. The respondent submits that there are no new facts and that the applicant is attempting to reframe the same legal issue in order to relitigate the same matter.

5The respondent also asserts that the parties did address and make submissions on section 13 of the Code during the course of the conference call scheduled with respect to the June 2009 Application Further, the February 2011 Decision addresses the continuing nature of the alleged breach of the Code.

6On September 3, 2011, the applicant sent an email and letter to the Tribunal waiving his right to an oral hearing. The applicant states that he does not have legal training and is unsure whether he should have filed the March 2011 Application instead of appealing the February 2011 Decision. The applicant maintains that the discriminatory conduct is on-going and that legal technicalities should not prevent the Tribunal from hearing this case.

7In the March 2011 Application the applicant still takes issue with the questions asked by the respondent in its on-line employment application form. In the body of the Application he states:

I would like to note that I have previously submitted a complaint to the Human Rights Tribunal regarding the same issue but regarding different facts. It was File No. 2009-02596. I had applied to a teaching position with WCDSB in 2006. In 2009, I filed a complaint with the Human Rights Tribunal (HRTO). In my complaint, I referred to this job application as the “event” where discrimination became evident. The HRTO dismissed my complaint to the HRTO. It was only during a conference call on the issue that I became aware of Section 13. (1) regarding display of discrimination before the public. I am now filing my complaint in the (hopefully) correct manner which will get to the heart of the issue.

ANALYSIS AND FINDINGS

8At paras. 2 and 3 of the February 2011 Decision, the Tribunal summarized the issues raised in the June 2009 Application as follows:

The respondent is a publicly funded separate school board that operates 19 schools in Guelph and the rest of Wellington County. The applicant is a teacher who applied for a position with the respondent and claims discrimination on the basis of creed. In his Application to the Tribunal, he objects to the respondent’s practice of asking for a pastoral letter of reference from prospective teachers. He also objects to being asked (in the respondent’s online application form) whether he was a practicing Roman Catholic and whether he took the Roman Catholic Religion Education course at a faculty of education. […]

9Prior to dismissing the June 2009 Application a conference call was held so that the parties could make submissions on the issue of the Tribunal’s jurisdiction to accept the June 2009 Application because the allegations of discrimination were beyond the one-year time limit specified by section 34 of the Code. In the February 2011 Decision the Tribunal summarizes the applicant’s submission that the effect of the discrimination is on-going at paragraph 7:

The applicant concedes that there was a delay in his filing of the application, but asks the Tribunal to proceed because the questions and requirements that sparked his initial objection are still in place. If he were to apply now for a position with the respondent, the applicant would still be asked whether he was a practicing Roman Catholic and to provide a pastoral letter of reference – facts that are not denied by the respondent. The applicant argues that the alleged violation of the Code recurs every time he views a job posted by the respondent, and that it would be pointless to keep applying when he cannot provide the desired answer to the question of whether he is a practicing Roman Catholic.

10In the February 2011 Decision, the Tribunal did not accept the applicant’s submissions, dismissed the June 2009 Application, and concluded at paragraph 13 and 14:

While in this case, the impugned requirements imposed by the Respondent are ongoing, the courts and this Tribunal have rejected the view that a continuing situation brings the applicant within the one-year limitation period, as the following passage from the Manitoba Court of Appeal in Manitoba v. Manitoba (Human Rights Commission), (1984), 1983 CanLII 2967 (MB CA), 25 Man. R. (2d) 117, 1983 CanLII 4703 (MB CA), 5 C.H.R.R. D/1885, at para. 19, adopted by the Ontario Divisional Court in Visic v. Ontario Human Rights Commission, 2008 CanLII 20993, at para. 45, makes clear:

To be a ‘continuing contravention’, there must be a succession or repetition of separate acts of discrimination of the same character. There must be present acts of discrimination, which could be considered as separate contraventions of the Act, and not merely one act of discrimination, which may have continuing effects or consequences.

The Tribunal has adopted the same reasoning. See for example Mafinezam v. University of Toronto, 2010 HRTO 1495. In that case, the Tribunal made the point that in an ongoing situation there would be effectively be no time limit at all under section 34 if the applicant’s argument were accepted.

11Based on a review of both applications, the Tribunal finds that the issues raised in the March 2011 Application are the same as the issues raised in the June 2009 Application. There are no new facts or alleged discriminatory conduct by the respondent that has occurred since the June 2009 Application. The Tribunal accepts the respondent’s submission that the applicant is attempting to defend the timeliness of his complaint by referring to a different section of the Code, which he concedes he became aware of during the original conference call in the June 2009 Application. In essence, the applicant is offering a different legal theory based on the same facts that were before the Tribunal in the June 2009 Application.

12At paragraph 25 of in the case of Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, the Tribunal states that the preconditions of issue estoppel are:

1. that the same question has been decided;

2. that the judicial decision which is said to create the estoppel was final; and

3. that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estopel is raised or their privies.

13With respect to the first precondition, the question before the Tribunal in the February 2011 Decision was whether the applicant’s allegations of discrimination were filed within one year of the last alleged act of discrimination. In arriving at its decision, the Tribunal considered what were the “incidents” of discrimination at issue in the Application and the continuing nature of these alleged incidents. I find that these are the very same questions presently before the Tribunal.

14The applicant had the opportunity to present his arguments in full during the scheduled conference call with respect to the dismissal of the June 2009 Application for delay. Though the respondent takes the position that section 13 was addressed during the conference call, even if it was not, it was a legal theory available to the applicant at that time.

15Clearly, the Tribunal considered the applicant’s submissions about the continuing nature of the alleged discriminatory conduct and, in particular, his assertion that the “alleged violation of the Code recurs every time he views a job posted by the respondent”. This assertion of a continuing violation, which was dismissed by the Tribunal in the February 2011 Decision, is once again the very same issue being raised in the March 2011 Application with a different legal characterization. The issue of the applicability of section 13 of the Code to the respondent’s online application form, including asking for a pastoral letter of reference from prospective teachers, could have and should have been addressed by the applicant during the conference call. Simply put, the factual basis for the allegations in the March 2011 Application and the June 2009 Application is the same regarding the respondent’s online application form, and during the conference call the applicant had the opportunity to argue all possible legal arguments in support of his position that his allegations of discrimination were timely. The first precondition of issue estoppel refers broadly to the “question” before the decision maker. I find that the question of the timeliness of the applicant’s allegations has been decided in the February 2011 Decision.

16In this case it is clear, since the decision giving rise to the issue estoppel is a Tribunal decision, that the second precondition has been met and that the February 2011 is final. Also, it is clear that the third precondition has been met since the parties are the same.

17Having concluded that the three preconditions of issue estoppel have been met, the Tribunal must determine whether it is appropriate to apply the discretionary doctrine of issue estoppel to find that the March 2011 Application is filed outside of the one-year time period prescribed by the Code.

18The Tribunal’s mandate is to adjudicate applications in a fair and expeditious manner. The applicant in this case had the opportunity to make his case with respect to the timeliness of his allegations during the course of the initial conference call. To permit the applicant to continue with a new application with respect to the same issue would defeat the purposes of the Code and compromise the finality of the Tribunal’s own decisions. In the case of Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, the Supreme Court of Canada states at paragraph 18:

The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular is only entitled to one bite at the cherry.

19Having reviewed the circumstances of this case, I find that it is appropriate to apply the doctrine of issue estoppel and therefore dismiss the March 2011 Application on the basis of delay.

Dated at Toronto, this 25th day of October, 2011.

”signed by”______________

Geneviève Debané

Vice-chair