Sutherland v. District School Board Ontario North East, 2011 HRTO 241

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Theresa Sutherland

Applicant

-and-

District School Board Ontario North East

Respondent

-and-

Wahgoshig First Nation

Intervenor

AND B E T W E E N:

Diane Plourde

Applicant

-and-

District School Board Ontario North East

Respondent

-and-

Wahgoshig First Nation

Intervenor

interim DECISION

Adjudicator: David Muir

Date: February 2, 2011

Citation: 2011 HRTO 241

Indexed as: Sutherland v. District School Board Ontario North East

1These Applications were filed in June 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”).

2This Interim Decision makes final determinations on a Request for Order During Proceeding (Request) filed by the respondent seeking the dismissal of aspects of these Applications that it states are alternatively out of time, or are an improper expansion of the scope of the human rights complaints (the “complaint(s)”) underlying them.

3In Interim Decision 2010 HRTO 2270 I dealt with aspects of the Request related to the scope of the Applications and the timeliness of some of the allegations made in the complaints and the Statement of Additional Facts filed by the applicants. The lack of particulars for several of the alleged incidents made definitive determinations impossible and I directed that the applicants further particularize their allegations in order that final determinations could be made. The applicants have complied with my Directions.

4The complaints underlying these Applications were filed with the Ontario Human Rights Commission (the Commission) in May 2008. The applicants each self identify as members of First Nations. The complaints are similar in that they each contain allegations that the applicants were removed from their positions as educational assistants for discriminatory reasons in November 2007. The complaints also each contain allegations that the applicants were improperly assigned duties outside of their job descriptions because of their race and ethnic origin

5The applicants also state in their complaints that their removal from their positions took place in a poisoned work environment and, although this is more clearly articulated in the complaint underlying TR-0864-09, each contains specific examples of such incidents which it is claimed created such an environment.

6As noted above the complaints underlying these Applications were filed with the Commission in May 2008. The complaints relate primarily to the applicants’ terminations which occurred in November 2007. In 2010 HRTO 2270 I determined that allegations said to have occurred prior to May 2007 were out of time unless they could be seen as a series of incidents within the meaning of section 34(1). In general terms the allegations in issue all related to the general allegation of the applicants that their terminations occurred in a poisoned work environment. The allegations in question all related to what was experienced by the applicants as differential treatment of aboriginal students in the school in which the applicants worked.

7Section 34 provides as follows:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

8My general conclusions concerning the intent and effect of section 34 are set out here for convenience:

The language “series of incidents” recognizes that it is in the nature of human rights claims that it will often not be possible to identify discriminatory conduct based on one incident. The language in section 34(1) provides for the flexibility to accommodate that reality but at the same time requires that the claim be brought forward reasonably quickly once the discriminatory conduct can be identified.

The Tribunal has also determined that the logic of the section suggests that the gap between incidents in a putative “series” may be as much as a year, but rarely longer than that. Depending on the nature of the allegations it might be shorter. The common sense meaning of a “series of incidents” suggests a number of related or similar events occurring in temporal order or succession. It is not clear to me that incidents occurring 12 months or more apart can be said to be occurrences in temporal order or succession except in unusual circumstances. This is no less so when the claim is that the incidents created a hostile or poisoned environment.

9In applying these principles to the issues and allegations raised by the applicants I found that not all of the allegations made in the complaints and Statement of Additional Facts were a series of incidents within the meaning of section 34(1). I concluded that the allegations which were said to have occurred in 2000/2001 and 2003/2004 respectively were out of time in that they were unconnected to the other allegations in the complaints or in the Statement of Additional Facts. I made these findings based on the timing of the alleged incidents not the substance of them. A number of alleged incidents occurring in the Fall of 2007 were found to be capable of being included in a series of incidents and were therefore timely.

10The earlier Interim Decision left the following allegations to be considered:

a. The applicant in TR-0637-09 alleges that in 2005 an aboriginal student lost his father suddenly. The applicant alleges that he was told by a teacher to remove a bandana he was wearing in his father’s memory. The applicant alleges that when other students at the school have experienced a tragedy the school has provided counseling to assist the students.

b. The applicant TR-0637-09 alleges that during the school year 2005/2006 while on a field trip Mr. Van Cleef in response to some noise making by the aboriginal students said to them “what do you think this is, a pow-wow” (…)

11In the applicants’ Statement of Additional Facts they allege that they witnessed differential treatment of aboriginal students in relation to the presence or perceived presence of head lice.

a. The applicants alleged that in multiple years the applicants witnessed that the Aboriginal students would be checked for head lice before other students.

b. The applicant in TR-0864-09 alleges that in the 2006/2007 school year that an aboriginal student with lice whose parents could not be reached to pick her up was treated differently than a non-aboriginal student in the same circumstances. The applicant alleges that the non-Aboriginal student was allowed to return to class while the non-aboriginal student was required to stay out in the hall.

12The applicants have provided particulars in compliance with my Directions. They provide the following material detail for the purposes of this preliminary determination:

a. The incidents described in paragraph 10(a) above occurred in April 2007, not 2005, some 5 months prior to the applicants’ termination.

b. The allegations set out in paragraph 10(b) above took place between May 1 and 5, 2005.

c. The allegations made in paragraph 11(a) occurred regularly throughout the applicants’ employment by the respondents. The applicants also refer to an example of differential treatment which came to light in 2009.

d. The allegations made in paragraph 11(b) occurred in either the Fall or Spring of 2006/2007 school year. It appears that the applicant have identified another specific example of this alleged pattern of differential treatment in the same school year and have provided particulars of it.

13I find that the alleged incident set out in 10(a) and 12(a) is capable of being considered one of a series of incidents in support of the general allegation that the applicants experienced a poisoned working environment. I am not satisfied that the allegation described in 10(b) and 12(b) is. It is unconnected in time with the next particularized allegation which is said to have occurred, at the earliest, in the Fall of 2006.

14As regards the remaining allegations, 11(a) and (b); 12(c) and (d), they all relate to what is alleged to have been a pattern of differential treatment of aboriginal students in the application of the school’s lice abatement policy or practice. The applicants allege that they witnessed the differential application of the school’s practice throughout their employment. The applicants cite two specific examples of the differential treatment of aboriginal students in this regard both said to have occurred in the 2006/2007 school year. I find that these allegations are capable of being understood as incidents in a series of incidents in support of the general allegation that the applicants experienced a poisoned work environment. The Tribunal will hear the applicants’ evidence with respect to alleged differential treatment of aboriginal students as particularized beginning in the Fall of 2006. Another incident offered as an example is said to have occurred in 2009. This allegation post-dates the applicants’ termination and the complaint and is an allegation that the Tribunal is not able to deal with.

15I am not seized.