Correia v. York Catholic District School Board, 2011 HRTO 352

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Oscar Correia Applicant

-and-

York Catholic District School Board Respondent

INTERIM DECISION

Adjudicator: Mark Hart Date: February 17, 2011 Citation: 2011 HRTO 352 Indexed as: Correia v. York Catholic District School Board

Written submissions:

Oscar Correia, Applicant ) Allison Taylor, Counsel York Catholic District School Board, Respondent ) John W. Woon, Counsel

1This Interim Decision addresses issues regarding the relevance and admissibility of certain documents and proposed witness evidence that arose at the first day of hearing in this matter on November 15, 2010. The hearing in this matter is scheduled to continue on April 4 and 5, 2011.

DOCUMENTS

2The applicant seeks to tender into evidence four reports. The first two reports are the 2009 and 2010 reports of DiverseCity Counts, which is a three year research project of the Ryerson University Diversity Institute tracking diversity and leadership in the corporate, public, not-for-profit and education sectors in the GTA. The applicant wishes to rely on these reports, which he submits indicate under-representation in the senior leadership roles in these sectors in the GTA. The applicant seeks to file the full reports but for convenience proposes to utilize at the hearing the summaries of key findings, together with the specific section of each report dealing with education.

3The other two reports that the applicant wishes to tender into evidence are "Diversity of Residents Living in York Region: Ethnic Origin and Visible Minorities", a publication of York Region, which describes the ethnic face of York Region currently, and a document titled "The Changing Face of York Region, a Demographic Profile", also published by York Region, which describes demographic change in York Region. The applicant submits that the issue of the demographic profile of York Region is germane to the issue of visible minority leadership in a school board located in that region.

4The respondent objects to the admissibility of these documents for two reasons. First, it notes that these documents were not disclosed by the applicant or filed with the Tribunal in advance of the commencement of the hearing in accordance with the Tribunal’s Rules of Procedure for Transitional Applications. Second, it takes the position that these reports are irrelevant to the matters at issue in this proceeding, being the two Superintendent competitions in 2006 and 2007, and in reality amount to a disguised attempt to introduce expert evidence which does not meet the requirements for admissibility of such evidence as set out in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9.

5Dealing with the respondent’s latter point first, I do not regard the applicant as attempting to introduce disguised expert evidence by tendering these reports. In discrimination cases, it is not at all unusual for the Tribunal to receive background and contextual evidence relating to the representation of the particular group at issue in the case within the relevant geographic area or sector. The weight to be accorded to such evidence as it pertains to the specific nature of the discrimination alleged in the case is a matter for argument, not a matter going to the admissibility of such evidence.

6My understanding is that the applicant wishes to rely upon the two DiverseCity reports as contextual evidence relating to the representation of persons from racialized groups in leadership positions in various sectors across the GTA, including the education sector. My understanding is that the applicant wishes to rely upon the two York Region reports to demonstrate the demographic profile of that region in the context of the population being served by the respondent Board, in support of his position that this demographic context is or ought to have been a relevant consideration in the Board’s hiring decisions. This proposed evidence, in my view, relates to the issue of whether the applicant’s rights under the Code were infringed by the respondent Board in the manner alleged, and thus does bear on the liability issue being considered at this stage of the proceeding.

7In my view, it is not necessary for the applicant to call a witness in order for these reports to be received into evidence, and I am not requiring him to do so. The two DiverseCity reports were produced under the auspices of an accredited university, and the other two reports were produced by York Region, a government authority. If the respondent wishes to contest the statistics set out in these reports, I am fully prepared to allow it to introduce reports of a similar statistical nature from university, government or other reliable sources.

8With regard to the applicant’s non-compliance with the Tribunal’s Rules, I note Rule 3.6 which states that the Tribunal may relieve against a failure to comply where to do so would be fair and just and would not substantially prejudice a party or unduly delay the proceeding. In my view, it is fair and just for me to receive all relevant evidence and, as the matter is not scheduled to continue until April 4, 2011, I believe that allowing the applicant to tender these documents into evidence while affording the respondent with an opportunity to contest such evidence by tendering similar reports would not cause any substantial prejudice to the respondent and would not delay the proceeding.

9Accordingly, within 10 days of the date of this Interim Decision, the applicant shall deliver to the respondent and file with the Tribunal a copy of the four reports that he intends to rely upon. If the respondent wishes to serve and file any reports in response, it shall do so within a further 30 days.

10The applicant also has indicated that he wishes to tender into evidence the Certificates of Status of the respondent's proposed witnesses Patricia Preston and Susan LaRosa. As the respondent does not object to the tendering of this evidence, these documents are admitted into evidence.

WITNESSES

11The applicant proposes to call two further witnesses in support of his allegations. A third proposed witness, Lola Gray, is no longer available to testify for personal reasons.

12With regard to Bill Walsh, the applicant states that he is prepared to omit any evidence from Mr. Walsh which involves Mr. Mackey and to limit Mr. Walsh's evidence to his personal interactions with Ms. LaRosa and the applicant himself. The respondent takes the position that Mr. Walsh has no relevant evidence to provide in relation to the two Superintendent competitions at issue in this proceeding. I agree.

13I have reviewed the description filed by the applicant of Mr. Walsh’s proposed evidence. First, it is proposed that Mr. Walsh will testify as to the resistance that he experienced in trying to hire and promote members of racialized groups to positions of responsibility within the Board. It is stated that Mr. Walsh encountered this resistance from “his supervisors”, and Mr. Walsh’s Superintendent is identified as Mr. Mackey. As the applicant has indicated that he does not intend to elicit evidence from Mr. Walsh which involves Mr. Mackey and as no-one else is identified in the description of evidence as Mr. Walsh’s “supervisors”, this proposed evidence either has been withdrawn by the applicant or is not relevant to the matters at issue.

14The description of proposed evidence for Mr. Walsh then goes on to describe an exchange that he is alleged to have had with Mr. Mackey, which clearly has been withdrawn by the applicant. The following two paragraphs of the description of Mr. Walsh’s evidence in reality reflect the applicant’s own evidence, and not the evidence of Mr. Walsh. The final paragraph of the description of Mr. Walsh’s evidence is a conclusory statement that Mr. Walsh’s evidence will demonstrate that Ms. LaRosa had no intention of implementing the Board’s diversity policy. Yet there is no factual basis set out in the description of Mr. Walsh’s proposed evidence that would support such a conclusory statement.

15Accordingly, I find that Mr. Walsh’s proposed evidence either has been withdrawn by the applicant, is irrelevant to the matters at issue in this proceeding, or lacks a factual foundation. As a result, I decline to hear from Mr. Walsh as a witness in this proceeding.

16The next witness the applicant proposes to call is Mario Sacco. With respect to Mr. Sacco, the applicant states that he is prepared to limit Mr. Sacco's evidence to his personal interactions with the applicant and Ms. LaRosa, i.e. omitting discussions with respect to Mr. McCarthy and focusing on the refusal to promote the applicant and the reprisal issue. The respondent objects to Mr. Sacco’s proposed evidence as irrelevant and contrary to my prior decision regarding the scope of the matters at issue in this proceeding. Once again, I agree.

17The description of proposed evidence for Mr. Sacco first relates a conversation he is alleged to have had with Ms. La Rosa in the context of the applicant’s failure to be placed on the elementary school principal’s short list. I already have ruled that the failure to be placed on this list is not a matter at issue in this proceeding. In this context, Mr. Sacco is stated to have told Ms. LaRosa that he had talked the applicant out of going to make a complaint to the Ontario Human Rights Commission and to have assured Ms. LaRosa that he would mentor the applicant to work collaboratively within the system instead of going to complain to the Commission. In response, it is stated that Ms. LaRosa said, “We’ll see”. The next paragraph records Mr. Sacco’s personal reaction to Ms. LaRosa’s statement.

18Even were I to accept this proposed evidence as true, I do not see how it assists me in this matter. Ms. LaRosa’s comment was made in a context other than the Superintendent competitions, and does not indicate anything to me about whether Ms. LaRosa participated in discrimination or reprisal against the applicant in relation to those competitions. I do not see this proposed evidence as relevant to the matters at issue in this proceeding.

19The next paragraph of Mr. Sacco’s description of evidence relates to an alleged discussion with Mr. McCarthy, which has been withdrawn by the applicant. The following paragraph sets out Mr. Sacco’s opinion that the applicant was capable of assuming a Superintendent position given his experience with the applicant. In this regard, I note that Mr. Sacco was a principal and the applicant worked for him as a vice-principal. There is no indication in the description of evidence that Mr. Sacco had worked as a Superintendent or had participated in a hiring process for a Superintendent position. In my view, Mr. Sacco’s opinion as to the applicant’s ability to assume a Superintendent position is not helpful to me.

20Finally, Mr. Sacco’s description of evidence contains a conclusory statement about Ms. LaRosa’s alleged nonchalant attitude towards inequality and her casual approach towards moving the applicant’s career forward, and further states that Mr. Sacco will confirm that the respondent Board’s directing mind was a racist one. Once again, no factual foundation is provided in the description of evidence to support such conclusory statements.

21Accordingly, I find that Mr. Sacco’s proposed evidence either has been withdrawn by the applicant, is irrelevant to the matters at issue in this proceeding, or lacks a factual foundation. As a result, I decline to hear from Mr. Sacco as a witness in this proceeding.

22The respondent has indicated that it no longer intends to call Heather Cullen as a witness, on the basis of my ruling at the hearing on November 15, 2010 that I would not hear evidence about the applicant’s performance as Superintendent at the Waterloo Catholic District School Board of which the hiring panels were not aware and did not consider as part of their decisions not to hire the applicant as a Superintendent for the respondent Board.

23The hearing will resume on April 4, 2011 with the evidence of the respondent’s witnesses. It is my expectation that the evidence of the respondent’s witnesses, including cross-examination, will be completed by mid-day on April 5, 2011 and all parties should be prepared to proceed with final submissions that afternoon.