Viloria v. Dufferin-Peel Catholic District School Board, 2011 HRTO 2076

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Herman Viloria

Applicant

-and-

Dufferin-Peel Catholic District School Board, Ralph Borrelli and John Kostoff

Respondents

DECISION

Adjudicator: Naomi Overend

Date: November 16, 2011

Citation: 2011 HRTO 2076

Indexed as: Viloria v. Dufferin-Peel Catholic District School Board

AppearanceS

) Herman Viloria, Applicant ) Brian Noble, Counsel

Dufferin-Peel Catholic District School Board, ) Eric Roher and Melanie Warner,

Ralph Borrelli and John Kostoff, Respondents ) Counsel

1The applicant filed this Application alleging discrimination in employment on the basis of race, ethnic origin, age and reprisal, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2Pursuant to a Case Assessment Direction dated May 10, 2011, the Tribunal directed, on its own initiative, that a summary hearing be convened pursuant to Rule 19A of the Tribunal’s Rules of Procedure to determine whether the Application should be dismissed, in whole or in part, on the basis that there was no reasonable prospect that the Application or part of the Application will succeed.

3In its Case Assessment Direction, the Tribunal directed that the summary hearing would proceed by way of teleconference. Pursuant to Rule 19A.2, the Tribunal directed that the parties be prepared to address the following issue:

The Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). To succeed in an Application, an applicant must be able to prove, on a balance of probabilities, a link between a respondent’s alleged actions and a Code ground. Having reviewed the Application and Response, it appears that the applicant may be unable to prove such a link.

The reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one’s own Code rights. See Noble v. York University, 2010 HRTO 878 at para. 31. To proceed with the Application, there must be a reasonable basis to believe that the applicant could establish a reprisal.

4It also advised the parties, that the Tribunal would hear submissions on the respondents’ Request for Order During Proceedings (Form 10) (on delay and the naming of individual respondents) during that teleconference.

FACTUAL BACKGROUND

5The applicant is a secondary school principal with the respondent Board. He has held the job since 2002. John Kostoff (“Kostoff”), one of the individual respondents, is the Director, while Ralph Borrelli, the other named individual respondent, is the Associate Director of Instructional Services of the respondent Board.

6In 2005 the applicant was named as a respondent in a Complaint to the Ontario Human Rights Commission made on behalf of a student at his school (“the OHRC Complaint”). The OHRC Complaint was referred to the Tribunal and eventually settled.

7The applicant alleges that, while the respondent Board initially supported him, “it became apparent behind closed doors, the Board’s strategy was to shift all blame to me on the unfounded ground that I had allegedly breached investigation protocol.” The Application goes into some detail about the alleged incidents from which the applicant inferred this was taking place. These alleged incidents can be summarized as follows:

a. In October 2007 the respondent Board delayed investigating the applicant’s report to it that a teacher had publicly gone on a tirade against him.

b. In August 2008, he was given a lower final rating on his performance appraisal because the Complaint might go to the Tribunal and the Board was concerned about how it would look if he was given an exceptional rating.

c. In January 2009, Kostoff asked him for an update on the OHRC Complaint. Following the update, the applicant alleges that Kostoff said to him “something to the effect of I don’t know when you plan to retire but you should be worried.” The applicant also alleges that Kostoff said to him that if the Trustees determined that the OHRC Complaint was his fault, the applicant would be responsible for paying any damages.

d. In May 2009, after the OHRC Complaint was settled, Kostoff advised the applicant he had to write a cheque to settle the matter, and that he would be talking to the applicant about how this was “going to be split.” Shortly thereafter, the applicant received a “coaching and counselling” letter concerning his role in the matters giving rise to the Complaint.

e. In November 2009, at a meeting attended by other principals, Kostoff singled out the applicant’s school with respect to its performance. The applicant believed that Kostoff’s criticisms were based on incorrect information.

f. In April and May 2010, Borrelli “vented his anger” at the applicant over the applicant’s perceived engineering of a parent delegation to the Board over an issue concerning the running of the student cafeteria. The applicant also alleges Borrelli accused him of failing to report important information on a survey to be used in getting private companies to bid on the cafeteria contract, even though this information was not available at the time.

g. On July 15, 2010, Kostoff and Borrelli “went on a verbal assault” against the applicant for breaching the Board’s graduation protocol concerning the inviting of municipal politicians. Again, the applicant believes the respondents’ information on the ceremony was incorrect.

8Not unexpectedly, the respondents have a different view of events. For the purposes of this summary hearing, it is not necessary or appropriate to sort out whose version might be correct.

9It is important, however, to understand that the respondents take the position that their investigation revealed that the applicant had failed to follow Board protocol when he investigated the incident with the student that led to the OHRC Complaint. As a result, they provided the applicant with the above-mentioned “coaching and counselling” letter in order to assist him understand where he had failed to follow the protocol.

10In his Reply, the applicant states that it is significant that he received this letter 22 days after the OHRC Complaint was settled. He states that the respondents (Kostoff and the Board) were fully aware of these “alleged deficiencies” “more than a year prior to the issuance of the Letter when the Respondents fully supported the Applicant’s conduct.” It would appear that the applicant is relying on the Board’s submissions to the OHRC in November 2007 (in which it took the position that the applicant had acted appropriately) when he states that it “fully supported” his conduct.

11The applicant submits in his Reply that the Board’s change in position is an indication that the “Respondents’ actions constituted discrimination and reprisal.”

DECISION

12The Application does not have a reasonable prospect of success and is dismissed. Accordingly, it is not necessary to determine whether this Application was filed outside the one-year time limitation or whether the individual respondents should be removed as parties to this proceeding.

ANALYSIS

13The issue that Rule 19A directs the Tribunal to determine is whether the Application has no reasonable prospect of success. In the first case decided under the new procedure, Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal provided the following guidance:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

Reprisal

14With respect to the allegation of reprisal, section 8 of the Code states:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal.

15To successfully make out a claim of reprisal, the applicant must demonstrate that he experienced reprisal for:

• claiming or enforcing a right under the Code;

• instituting or participating in proceedings under the Code; or

• refusing to infringe the right of another person.

16The applicant submits that he has been reprised against for “participating” in a proceeding under the Code and, therefore, that his Application falls under s. 8. That is, the applicant takes the position that being named a respondent in a complaint (under the old system of enforcement) or an application (under the current system) constitutes “participation.”

17With respect, I disagree. Section 8 is included in Part I of the Code, which is titled “Freedom from Discrimination.” The rights under Part I, including s. 8, are there to ensure “equal treatment” “without discrimination.” The protection against reprisal is there to ensure that persons can assert their right to equal treatment without discrimination without fear of adverse consequences (as well as to protect those who refuse to infringe another person’s rights).

18To extend the right to enforce those rights without reprisal to respondents would be inconsistent with the underlying purpose of the protections enshrined in s. 8. The applicant’s case illustrates this point. In the OHRC Complaint, the applicant is alleged to have violated a student’s right to freedom from discrimination in the provision of services on the basis of race when he suspended him without making proper inquiries about what this student may or may not have done.

19It is not necessary (or appropriate) for me to determine whether or not this student’s rights were, in fact, violated. Suffice to say, once the OHRC Complaint was settled, the respondent Board sent the coaching and counselling letter to the applicant in which it sets out a number of problems that it believed it identified with the applicant’s (a) investigation, (b) determination of responsibility, (c) failure to consult with his Superintendent (prior to imposing the suspension), (d) analysis applied, and (e) failure to consider the mitigating circumstances. The letter ended with the notation that the Board expected that the deficiencies noted in the letter would not reoccur.

20To suggest that employers (or other respondents) cannot identify deficiencies and take corrective action without risk of a reprisal application would serve to undermine the Tribunal’s well-developed line of authority that respondents ought to investigate and, if necessary, take action when allegations of discrimination are brought to their attention.

21During his oral submission, I asked the applicant’s counsel whether an employer would be vulnerable to a reprisal complaint if, after investigating a complaint of sexual harassment, it terminated the employment of an individually named respondent (or otherwise disciplined him or her). Counsel agreed that this was the logical extension of his argument and that in such circumstances an employer should not impose any consequences that might be viewed as retaliatory in nature.

22I do not see how this position is consistent with the purposes of the Code. It would be particularly idiosyncratic if only those individuals who happened to be named in a human rights application were afforded this protection (since the protection is only for those who “participate in proceedings under this Act”), as opposed to those who are not named (or where the victim brings an internal complaint).

23Applying the reasoning in Dabic, I find that what the applicant alleges may not reasonably be considered to amount to a Code violation. Accordingly, the applicant has no reasonable prospect of success in establishing discrimination on the basis of reprisal.

Remaining Grounds

24Although it is clear from the Application that the applicant’s primary explanation for the incidents that followed the 2005 OHRC Complaint was that he was being reprised against for having been named as a respondent, he also alleges discrimination on the grounds of race, ethnic origin and age. Specifically, he alleges that the respondents would not have treated him as they did but for the fact that he is “a 67 years old Filipino male” (although his gender is not raised a ground).

25With respect to age, the applicant alleges that because he is 67 the respondents have “engaged in ongoing deceitful tactics and a smearing campaign in attempt to force me into retirement against my will.” The only reference to his age is the comment he alleges Kostoff to have made to him to the effect of “I don’t know when you are planning to retire but you should be worried.” This was allegedly said to him in connection with the threat that he would have to pay any damages arising from the OHRC Complaint if it was determined to be his fault.

26The difficulty with relying on this statement is that it supports his theory that the respondents were upset with him for being at the centre of the OHRC Complaint. It is not so clear that this is an attack on him because of his age, or even that it was a tactic to force him to retire. The applicant was unable to identify any other potential evidence he might call in a hearing on the merits in which there was even the suggestion that the respondents thought he was too old for the job or were pressuring him to retire.

27With respect to the grounds of race and ethnic origin, the applicant advises that he would call evidence that he was the only Filipino school “administrator” (i.e., person at his level or higher) with the Board. Even if established, this single fact would not be a sufficient basis on which the Tribunal could draw an inference that the respondents’ treatment of him was based on his ethnic or racial background.

28The applicant’s case regarding the grounds of age, race and ethnic origin is hampered by his allegation that the respondents’ treatment of him arose because he had been named in the OHRC Complaint. Thus, his primary allegation amounts to a non-discriminatory explanation for his treatment.

29The particulars in his Application suggest that he was a valued and well-treated member of the respondent Board from 1985 until 2005. Indeed, the pattern revealed by his statement of what happened is that until the respondents started having concerns (sometime in August 2008) that the applicant’s conduct with respect to the OHRC Complaint may not have been appropriate (and may even have amounted to discrimination), he experienced no difficulties with the Board or the individual respondents.

30The factual allegations upon which the Application is based, if proven, suggest that the applicant may have been singled out and treated unfairly. However, unfair treatment does not, in itself, constitute a violation of the Code. As this Tribunal points out in Forde v. Avon Maitland District School Boar, 2011 HRTO 1389, at para. 17:

The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code.

31I agree with the respondent’s submission that the applicant’s assertion that his age, race or ethnic origin must have been a factor is nothing more than a bald assertion or, to use the words in Abdul, “mere speculation and accusations.”

32In light of the failure of the applicant to identify evidence he would call (should this matter proceed to a hearing) on which the Tribunal might be able to find discrimination on the prohibited grounds of race, ethnic origin or age, I find that there is no reasonable prospect that this aspect of the Application will succeed.

ORDER

33The Application is dismissed.