Alexander v. Toronto District School Board, 2012 HRTO 1105

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Samuel Alexander Applicant

-and-

Toronto District School Board, Tania Bloomfield, Jonathan Cohen, Davina Blenman, Zoraida Van Ael, Nina Sengupta, Christina MacDonell and Sarah Hicks Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson Decision Date: June 5, 2012 Citation: 2012 HRTO 1105 Indexed as: Alexander v. Toronto District School Board

APPEARANCES

Samuel Alexander, Applicant Clayton Ruby and Gerald Chan, Counsel

Toronto District School Board, Respondent Grant Bowers, Counsel

Tania Bloomfield, Jonathan Cohen, Davina Blenman, Zoraida Van Ael, Nina Sengupta, Christina MacDonell and Sarah Hicks, Respondents Maurice Green, Counsel

Introduction

1This Application was filed on November 18, 2009, under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"), and alleges discrimination in employment on the basis of race, colour, ancestry, place of origin and ethnic origin, and reprisal. The Application named seven individual respondents (the "IRs"). This Interim Decision follows a summary hearing.

The applicant's allegations

2The applicant indicates in his Application that he is of "South Asian – East Indian" ancestry and Malayalee ethnicity. He also indicates that the IRs are all fellow English department employees at West Hill Collegiate Institute ("WHCI"), a secondary-school of the Toronto District School Board (the "TDSB").

3Attached to the Application is a lengthy narrative setting out the applicant's allegations. At the outset of his narrative, the applicant alleges that since he began work in September 2008 as a Curriculum Leader ("CL") in the English department at WHCI, the IRs have, by constantly assuming less of his dignities and capacities, verbally attacked, socially undermined, gossiped about, created a poisoned work atmosphere for, and filed at least three reprisal documents each against him. He alleges that, in actively doing so throughout the academic year, they have repeatedly sought to cast aspersions about him and question his competence. He alleges that the IRs have repeatedly discriminated against him in his employment based on preconceived notions and negative attitudes about his ancestry, place of origin, race, colour and/or ethnicity.

4More particularly, the applicant includes the following allegations in his narrative:

1. In or around early October 2008, Ms. Van Ael yelled at him as he approached her during a lunch break to bring to her attention an upcoming professional development opportunity.

2. Since most of the department had been together for many years and knew each other's inclinations and philosophies, he wanted the team to know the vision that had earned him the job and, with a view to informing peers ahead of time, he sent out his first memo on October 15, 2008, after it had been approved by Ms. Hodgins, Principal, and Mr. Lopes, Vice-Principal. Sometime between October 15 and 23, 2008, he mentioned to Mr. Lopes that he was told by a senior English teacher that some in the department felt that the memo had been sent off in haste because it contained grammar errors. Despite knowing that there were not any grammar errors, he read the memo again and also asked Mr. Lopes to read it one more time. On hearing back from Mr. Lopes that there were not any errors he returned to the teacher and told her that he had found no errors.

3. By a few days prior to October 24, 2008, he had heard that Ms. Bloomfield had made negative comments to some other staff members about his personality, his hairstyle and his attire.

4. The IRs planned, coordinated and executed a prejudicial and discriminatory verbal assault on him during the first department meeting on October 24, 2008. Ms. Van Ael, along with Mr. Cohen and Ms. Bloomfield, began and led the rounds of verbal assaults and mocking laughter at him. The IRs, speaking from condescending premises and with judgmental tones, repeatedly questioned his competence and ridiculed his teaching methods and assignments even though they did not know what he was doing in his classes. Both Ms. Bloomfield and Mr. Cohen also repeatedly raised their voices at him in anger and derision, contending that they had been told that the students in his Grade 12 class were very anxious about the "chaos" in his class and that the two of them felt he was squandering all the hard work they had put into preparing them for university. The IRs laughed at him and mocked the capacity of the students, a majority of whom are ethnically and/or culturally similar to him.

5. Immediately after the October 24, 2008 meeting, he informed Ms. Hodgins that he had been "lynched" and she responded to the effect, "Oh well, we'll just have to move on."

6. On October 30, 2008, three of his students approached him and apologized for having spoken to Ms. Bloomfield, and clarified she had approached them and sought information about him.

7. Over the course of the 2008-09 academic year, Ms. Van Ael repeatedly made negative assumptions about him, angrily asked him to resign, called him uncomplimentary names, declared even in the presence of Ms. Hodgins that she would rather see him gone, and filed three or more documents of reprisal against him.

8. On two occasions later in the year, he stumbled into conversations between Ms. Hicks and Ms. Van Ael, with Ms. Hicks making comments about the names of students from cultural/ethnic backgrounds similar to his. He also heard Ms. Bloomfield read out loud, within the department, and mock work written by students "from backgrounds where the mother tongue is not English."

9. In early October 2008, a student's parent informed him that she wanted her daughter to be moved from his class as her daughter, having made her own enquiries with some of the other English teachers, was given the impression that he was not delivering the curriculum the way it needed to be.

10. In December 2008, he was informed by some staff members that Ms. Bloomfield had repeatedly approached office staff handling Term 1 mark entry and asked whether he had entered his Grade 12 marks. Another "white" English teacher had also not entered her marks and Ms. Bloomfield was not interested in whether this teacher had entered her marks.

11. In December 2008, Mr. Cohen sent him two memos questioning both his professionalism and intelligence, and instructed him to deposit his exams. Mr. Cohen's intention, as stated in the memo, was that only the applicant's papers would need to be re-assessed for "fairness" and Mr. Cohen would be doing the "determining." He asked Ms. Hodgins what she was going to do about Mr. Cohen's memos and her response was "Nothing."

12. On January 12, 2009, he sent out a memo to the department containing clear, specific and public mention of repeated verbal assaults, patronization, and intimidation being inflicted upon him by members of the department and his intention to file complaints against two members on grounds of persistent and malicious unprofessional behaviour.

13. During a second department meeting on January 14, 2009, he was personally attacked by Ms. Van Ael and Mr. Cohen.

14. By January 28, 2009, the date of the first of two reprisal petitions filed against him, there was no official action from Ms. Hodgins about a written public allegation from him that he was being repeatedly harassed by his peers at WHCI.

15. In a February 4, 2009 non-confidence motion against him, the IRs made the following claim about his October 15, 2008 memo: "we found this letter completely incoherent, for reasons beyond the many, many errors in grammar, punctuation and sentence structure." He asserts that seven Canadian-educated English teachers officially signed a prejudicial claim that there were errors to cause personal and professional harm to a new department head who, they knew, was born, raised and educated in a non-Western country. He describes this accusation as a professional and personal attack, targeting his ancestry, place of origin, race, colour and/or ethnicity.

16. On April 16, 2009, he informed five of the IRs that he was going to file a human rights complaint against them.

17. Following an initial conference on April 29, 2009 with the manager of the "TDSB-WHO", he submitted a draft workplace harassment complaint on May 20, 2009. He received an email on May 28, 2009, rationalizing the IRs behaviour, and stating that even though the teachers were "attacking" him, his 35 complaints against them "do not yet constitute harassment". A letter stating that the file had been closed arrived later.

18. On June 4, 2009, he filed a complaint with the Ontario College of Teachers, and informed the IRs. This complaint does not deal with discrimination or harassment but focuses on standards of professionalism and professional misconduct.

19. At a brief morning meeting with Ms. Hodgins on June 10, 2009, when he went in to report Ms. Van Ael's mocking of him as he walked into the department, Ms. Hodgins told him that she was going to back the IRs. At a second meeting in the afternoon, he told Ms. Hodgins that his Grade 12 students had told him that Ms. Bloomfield had once again approached some of them and asked that they start a petition again him. He also informed and invited Don McLean, Superintendent, to investigate this on June 15, 2009.

20. On June 25, 2009, the IRs filed notices of adverse reports against him with Mr. McLean, claiming that the working relationship within the department had broken down.

21. There has been no investigation conducted or action taken about the circumstances that led to the October 24, 2008 attack or the February 4, 2009 allegation.

5In his Application, the applicant also indicates that in late August 2009, he was asked to remain on home assignment while an investigation was under way. The applicant indicates that, on January 12, 2010, he was told that he would not be allowed to re-apply for the CL post, and that he was being transferred to a different school, where he began on January 28, 2010. He alleges that he has been denied an equal opportunity to reapply for a post he was qualified to apply for because he claimed his right to due process. He also asserts that he believes that adverse notices filed against him by other members of his team are reprisal documents.

Respondents' positions

6The TDSB, which was not named as a respondent in the Application, filed a Request to Intervene, dated March 5, 2010. On March 26, 2010, the IRs filed a Response to the Application, denying any contravention of the Code, and naming the TDSB as an additional respondent to the Application. With their Response, the IRs also filed a Request for an Order During Proceedings ("Request"), seeking particulars, production and that the Application be dismissed on the basis that no prima facie case had been pled.

7On May 21, 2010, the TDSB filed a Response to the Application, denying the allegations, and submitting that the applicant has failed to establish a prima facie case. It appears that the matter proceeded to mediation on March 25, 2011, but was not resolved.

8On April 8, 2011, the IRs filed, jointly, with the consent and support of the TDSB, a Request for Summary Hearing. In their Request for Summary Hearing, the respondents submit that the material facts pled do not give rise to a reasonable prospect that the IRs violated the Code. They also submit that the Application does not disclose a prima facie case, and that the true nature of the Application is one of a personality conflict without any nexus to a Code ground. They submit that, on the face of the pleadings, the applicant's race is raised only tangentially and is not connected to the allegations made against the IRs, and that the assertions of discrimination are bald in nature without the necessary factual underpinnings to support such a claim.

SUMMARY HEARING

9Rule 19A.1 of the Tribunal's Rules of Procedure states as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

10In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments about summary hearings, at paras. 8-10:

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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

11In a Case Assessment Direction dated May 11, 2011, the Tribunal granted the respondents' Request for Summary Hearing, noting that the applicant consented to a summary hearing. The Tribunal's Case Assessment Direction asked the applicant to address the arguments made in the Request for Summary Hearing, make submissions on the issue of whether the Application has no reasonable prospect of success, and, in particular, explain how he intends to prove that the allegations he makes are connected to a prohibited ground of discrimination.

Allegations based on race, colour, ancestry, place of origin and ethnic origin

12At the summary hearing, the applicant emphasized that the threshold for establishing a prima facie case of discrimination is not high. He submitted that discrimination is often not overt, the employer may have knowledge of facts or possess evidence of discrimination that is not accessible to an employee, and that in many, if not most, cases the burden will shift to the respondent to provide a non-discriminatory reason for its actions: See Jagait v. IN TECH Risk Management, 2009 HRTO 779, at para. 19.

13The applicant also referred to the Tribunal's Interim Decision in Kostrikov v. York Condominium Corp. #201, 2011 HRTO 974. In Kostrikov, the Tribunal observed that the Application itself provided very little information to explain why the applicant believed he was reprised against or treated unequally on the basis of his race and ethnic origin or because he refused a sexual solicitation or advance. At a summary hearing, the applicant explained that he intended to provide evidence at a hearing, including that the chairman of the respondent's Board of Director's ignored his ongoing requests for repairs and extra parking because of his ethnic origin, and that the chairman made a negative remark to him about people of his ethnic origin. Given the applicant's submissions clarifying his allegations, the Tribunal did not dismiss the part of the Application alleging discrimination on the basis of race and ethnic origin as having no reasonable prospect of success. The applicant submits that the same conclusion should be reached in the present case.

14In support of the applicant's claim of discrimination based on prohibited grounds in the Code, the applicant submits that, with the exception of the Ontario Institute for Studies in Education (Bachelor of Education degree), he was educated outside of Canada, and that the IRs were aware that he was raised and educated in a non-Western country. He submits that, while two of the seven IRs are visible minorities, they were educated in Canada.

15The TDSB, on the other hand, questions the source of the evidence that the IRs knew the applicant was born and raised in a different country. With respect to his assertion that he was educated in a different country, the TDSB submits that the applicant received education in both Canada and the U.S. In reply, the applicant submits that Mr. Lopes told the applicant that he told the IRs where the applicant was educated.

16The applicant also submits that, in the summer of 2008, he wrote to his new colleagues and made two modest suggestions. He describes the tone of his letter as very open. On October 15, 2008, he wrote a 3-page letter to members of the English department, and included a course outline that he wanted to discuss at a department meeting. He indicated that, once they began meeting formally, there would be no need for long messages. He describes all of this as "light-hearted".

17In a memo to the English department dated October 21, 2008, regarding an October 24, 2008 department meeting, the applicant invited others to add items to the agenda, and attached another course outline. He describes the tone as positive and open. He alleges, however, as set out in his Application, that he was subjected to a prejudicial and discriminatory verbal assault during the department meeting, and that the IRs repeatedly questioned his competence and ridiculed his teaching methods and assignments. He also alleges that the IRs mocked the capacity of the students, the majority of which are ethnically and/or culturally similar to him.

18The applicant submits that the conduct of the IRs at their first meeting on October 24, 2008, is the crux of his claim. He submits that it is inexplicable that it arose out of the memos that were created for the meeting, and that they ganged up on a visible minority teacher, and mocked the ability of students who are culturally and ethnically diverse. He submits that this suggests discrimination, and that given this behaviour a reasonable person would say "you have 'some explaining to do'": See Potocnik v. Thunder Bay (City), [1996] O.H.R.B.I.D. No. 29.

19The applicant submits that, while the IRs deny that anyone yelled at or mocked him during the meeting, and assert only that questions of clarification were asked about his memo, there is a factual dispute that can only be resolved by a hearing on the merits. He also submits that the Manager of the TDSB's Human Rights Office, in response to a workplace harassment complaint filed by five of the IRs against him, observed that some of the IRs had acted inappropriately and unprofessionally in their approach to the applicant.

20The TDSB submits that the applicant makes a bald assertion that the majority of the students in his class are ethnically and culturally similar to him, and questions what he means by that. With respect to his allegation that, by January 28, 2009, there was no official action from Ms. Hodgins about his allegation that he was being repeatedly harassed by his peers, and his sense that it was because of his identity, the TDSB submits that there is no indication that he told Ms. Hodgins that he believed he was being discriminated against.

21The applicant submits that there are other aspects of the respondents' behaviour that reinforce that discrimination occurred. He refers to a "no confidence" letter written by the IRs, dated February 4, 2009, concerning his ability to be the CL of the English department. In the letter, which is attached to the TDSB's Response, the IRs state that they found the applicant's letter to the English department dated October 15, 2008, to be "completely incoherent, for reasons beyond even the many, many errors of grammar, punctuation, and sentence structure."

22With respect to his October 15, 2008 letter, the applicant submits that he expects to call evidence from three experts in English language, that he named, to testify that there were no errors in, and nothing remotely incoherent about, his letter to the department. He submits that the attack on his English language ability is without merit and more likely attributable to prejudices the IRs hold regarding those who have obtained education in non-Western countries.

23The IRs, on the other hand, submit that they have an expert report outlining grammatical and stylistic errors in the applicant's October 15, 2008 memo, which they provided to the applicant in response to one of his Requests. They also submit that there are standards of English that are supposed to be taught in Ontario, and it does not matter where you come from. In reply, the applicant submits that the expert's opinion is going to be controverted. He also submits that the TDSB has appointed him to be a CL at another school and cannot say that he is not competent.

24The applicant reiterated that, on two occasions, he stumbled into conversations between Ms. Hicks and Ms. Van Ael, with Ms. Hicks making comments about the names of students from cultural/ethnic backgrounds similar to his. He also heard Ms. Bloomfield read out loud and mock work written by students whose first language was not English.

25The applicant acknowledges that his January 12, 2009 memo to the English department is a bit jarring, but submits that is shows how deeply hurt he was by the attacks on him prior to that date. He states in his memo that he "will not tolerate any more inelegant behaviour towards" him or "disrespectful language about students either".

26The IRs submit that the applicant describes what was said to him, without providing what was actually said, and that this is insufficient to establish a reasonable prospect of success. They also refer to the applicant's statement in his Application that it was his "sense" that he was being repeatedly harassed because of his "cultural/ethnic identity". The IRs submit that an application that relies on perceptions, without solid factual allegations which, if proven, could lead to a finding of discrimination, should not make it past the Rule 19A.1 test. The IRs also submit that the alleged facts relate to personality conflict and differences of opinion, and submit that the Application has nothing to do with Code grounds.

27The TDSB submits that there are some allegations that, if substantiated, might ground a presumption, but in terms of a reasonable possibility of success, there are seven IRs, a Principal, and a Vice-Principal who deny everything that he alleges.

28At this stage of the proceeding, prior to having heard any evidence, it is not appropriate to make findings with respect to the applicant's allegations or the respondents' responses. In light of the applicant's submissions, including with respect to the evidence he proposes to call at a hearing, I do not find that the allegations in the Application of discrimination on the basis of race, colour, ancestry, place of origin and ethnic origin have no reasonable prospect of success. The respondents' request that these allegations be dismissed on the basis that they have no reasonable prospect of success or do not establish a prima facie case is dismissed.

Reprisal allegations

29With respect to reprisal, s. 8 of the Code provides as follows:

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 for doing so.

30The applicant acknowledges that, in Noble v. York University, 2010 HRTO 878, the Tribunal held that the following elements must be established in order to prove reprisal:

a. An action taken against, or threat made to, the complainant;

b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce, a right under the Code; and

c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

The applicant submits that there is a reasonable prospect that he will be able to establish all three of the above elements.

31The applicant submits that, in his January 12, 2009 memo to the English department, he stated that he would be "filing formal complaints against two members of the team, on grounds of persistent, malicious and unprofessional behaviour". He submits that four days after his January 12, 2009 memo, on January 16, 2009, Ms. Van Ael filed a workplace harassment complaint against him, indicating that her complaint was in response to the applicant's January 12, 2009 memo. On January 28, 2009, Ms. Van Ael indicates that she is withdrawing her individual complaint as she is part of a group formal complaint. The applicant submits that the group complaint, filed by five of the IRs, is expressly framed as a response to the applicant's January 12, 2009 memo. Further, on February 4, 2009, the IRs wrote a "no confidence" letter to Ms. Hodgins concerning the applicant's ability to be the CL of the English department.

32The applicant submits that, given the timing of the IRs' complaints, there is a reasonable prospect that the applicant will be able to show that they were a retaliation for the intention he had expressed in his January 12, 2009 memo to file formal complaints. He also submits that it is reasonable to assume that the IRs would have read his January 12, 2009 memo and understood him to be referring to a potential complaint under the Code.

33In the circumstances, I do not agree with the applicant's latter assertion that the IRs would have understood the applicant to be referring to a complaint under the Code, or to any claim of rights under the Code, in his January 12, 2009 memo. As the TDSB submits, the applicant first told five of the IRs that he was going to file a human rights complaint against them on April 16, 2009. Prior to that, he had only said that he was going to file complaints on grounds of "malicious and unprofessional behaviour", after referring to the entitlement to a safe work environment. He does not appear to refer to discrimination within the meaning of the Code in his January 12, 2009 memo. In my view, the applicant does not have a reasonable prospect of establishing an intention on the part of the respondents to retaliate for a claim of rights, or an attempt to enforce rights, under the Code prior to April 16, 2009.

CONCLUSION

34The applicant's allegations that he was subjected to reprisal, concerning the time period prior to April 16, 2009, are dismissed as having no reasonable prospect of success.

35I am not seized.