Monge v. Toronto Catholic District School Board, 2012 HRTO 1176

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Israel Monge Applicant

-and-

Toronto Catholic District School Board Respondent

decision

Adjudicator: Brian Cook Date: June 14, 2012 Citation: 2012 HRTO 1176 Indexed as: Monge v. Toronto Catholic District School Board

APPEARANCES

Israel Monge, Applicant (Self-represented) Toronto Catholic District School Board, Respondent (Sharon Duffy, Counsel)

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in employment based on race and disability.

2In a Case Assessment Direction dated February 7, 2012, the Tribunal directed, on its own initiative, that a summary hearing be scheduled. The summary hearing was conducted by telephone conference call on April 17, 2012.

3In a summary hearing, the issue is whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application, or a part of the Application, will succeed. The summary hearing process is outlined in Rule 19A of the Tribunal’s Rules of Procedure:

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.

4In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paragraphs 8 and 9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

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.

Background

5The applicant has international teaching qualifications but does not have the qualifications for registration with the Ontario College of Teachers. The applicant has worked for the respondent as an International Language Instructor since 1989.

6The respondent uses International Language Instructors to provide language training to students interested in learning other languages on an extra-curricular basis. There are regular permanent International Language Instructors who regularly instruct in specific schools. If these regular Instructors are not available due to illness or some other reason, the respondent utilizes the supply or occasional International Language Instructors list. The assignment may be for one day or up to a full school term depending on the circumstances.

7A supply International Language Instructor may be offered an assignment through a Board-wide computerized system but may also be contacted directly by the regular Instructor or the school principal. The respondent indicates that it discourages the direct contact approach but acknowledges that it does happen. In the Application, the applicant indicated that in the period 1993 to 1995 he was employed as a regular permanent International Language Instructor. He indicated that he stopped work as a regular permanent International Language Instructor in 1995 due to disability related to an earlier motor vehicle accident. He alleged that his request to return to a regular permanent International Language Instructor position was denied and alleged that this was discriminatory.

8The respondent disputes that the applicant was ever a regular permanent International Language Instructor. The respondent says that the applicant has always been a supply or occasional International Language Instructor. A letter from the respondent dated September 26, 2011, which was written at the request of the applicant and was provided with the Response confirms that the applicant has been employed as a Supply International Language Instructor since January 16, 1989.

9The respondent agrees that the applicant worked on a full-time basis in the period from 1993 to 1995. However, this was not permanent full-time employment. Instead, the applicant was working on a full-time basis because he was filling long term temporary vacancies in two schools because the regular permanent instructors were on leave. After 1995 those positions were filled by regular permanent instructors.

10The respondent also provided a letter dated May 26, 1995 with the Response. It indicates that the applicant was not eligible to continue to be on the Supply International Language Instructor list because he had not taken a required course. It appears that the applicant subsequently was put on the list again.

11At the time the applicant filed the Application in September 2011, he indicated that he had been taken off the occasional instructor list earlier in 2011. He indicated that when he asked why this occurred he was told that there were too many instructors on the list. In the Application, he also indicated that he felt that he should have been given full time occasional work like he had in 1993 to 1995.

12The Application alleged that he has not been granted full time work and has been taken off the occasional list because of discrimination on the basis of disability and race.

13At the summary hearing, the applicant was asked to clarify the allegation of discrimination because of race. He said that he did not think that any of the discrimination he alleges occurred because of his race or because he is Spanish. He indicated that he feels that he has been discriminated against because he is no longer getting calls to instruct in Italian. He indicated that while he is not fluent in Italian he is nevertheless qualified to instruct Italian.

14The applicant’s International Language Instructor profile in the Board’s system indicates that he is qualified to provide Spanish instruction. The applicant alleges that he was previously also in the system as qualified to instruct in Italian and that in any event he used to be regularly called to supply instruct in Italian. There is a much greater demand for Italian than Spanish and previously as many as 90% of the assignments were for Italian instruction.

15The respondent asserts that the reason that the applicant is no longer getting calls to instruct in Italian is that there have been complaints from schools about his ability to instruct in Italian. The applicant disputes that there have been complaints.

16At the summary hearing the applicant was also asked to explain the basis for his allegation that he has experienced discrimination on the basis of disability.

17He said that after he took a medical leave in 1995 he recovered and no longer had a disability related to the motor vehicle accident. However, it appeared that people thought that he was still disabled and he believes that this is why he was not offered the full-time assignment that he had before 1995.

18It appears that the applicant was again disabled from working in about 2008 due to a kidney condition.

19The applicant said that in December 2011, he dropped by the office of the administrator in charge of the occasional International Language Instructor list to find out why he was not getting assignments. She asked him why he wanted to be on the list since he was disabled. He told her that he was not disabled.

20The Application was filed in September 2011, which was before this conversation occurred. The Response to the Application was delivered to the applicant in December 2011. The applicant filed a Reply in January 2012 which consisted of various documents including emails and letters. The Reply made no mention of the discussion with the administrator in December 2011 in which she allegedly said that he was not on the list because he was disabled. Instead, the documents concern the applicant’s response to allegations and complaints from specific schools about performance issues.

21The applicant was asked why he did not mention the December 2011 conversation at the time he sent the Reply documents. He said this was because he had already identified disability as a ground of discrimination in the original Application.

22At the summary hearing, the applicant indicated that it appears to him that there was a change in his status with the respondent in about January 2012, and he wonders if this change occurred because he filed the Application. If this were true, the change could be due to reprisal, which would be contrary to section 8 of the Code, which provides that every person has the right to claim and enforce the person’s rights under the Code without reprisal.

23The respondent agrees that there was a change in the applicant’s status in about January 2012, but asserts that this had nothing to do with the Application. The respondent asserts that the applicant’s profile in the system was updated to clarify that he was qualified to instruct in Spanish but not qualified to instruct in Italian and that this occurred because of complaints from schools. I note that the documents sent by the applicant with his Reply seem to confirm that there were complaints although they also indicate that the applicant believes that the complaints were not justified.

Analysis and Conclusions

24The Tribunal does not have the authority to provide remedies for unfair treatment generally and does not have a general power to decide whether the respondent treated the applicant fairly and appropriately. The Tribunal only has jurisdiction if there is an allegation that the unfair treatment resulted because of a Code-protected ground. An Application within the Tribunal’s jurisdiction can only succeed if the applicant can prove a connection between the alleged unfair treatment and a Code-protected ground. Proving this connection requires something more than the applicant’s belief that the Code-protected ground must be the reason for the unfair treatment.

25In addition, section 34 of the Code 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.

26An Application must be filed within one year of the alleged discrimination or within one year of the last incident if there were a series of incidents. The Tribunal may allow a person to bring an Application that was not filed in time if there is a good faith explanation for the delay and if no substantial prejudice will result to the respondent.

Allegations of discrimination due to race

27While the Application indicated that race was a basis for the discrimination, at the summary hearing the applicant agreed that neither the fact that he is Spanish nor his race have anything to do with the unfair treatment he allegedly received. Whether or not the applicant is qualified to instruct in Italian is not something that this Tribunal has the jurisdiction to decide.

28Given the applicant’s concession with respect to his claim based on race, there is no reasonable prospect that the applicant could successfully establish that he experienced discrimination on the basis of race.

Allegations of discrimination due to disability

29The applicant appears to allege discrimination on the basis of disability in regard to two distinct periods.

30First, he alleges that he was not permitted to return to work as an International Language Instructor on a full-time basis in 1995 because of disability. This aspect of the applicant’s allegations are complicated by the fact that the applicant has suggested that in the period from 1993 to 1995 he was employed as a permanent full-time International Language Instructor. However, the respondent has confirmed that the applicant has always been employed only as an occasional or supply International Language Instructor. The respondent has provided documents to support this and the applicant has not provided any basis to suggest that the documents are not correct.

31Even if the applicant was denied a full-time position in 1995 because of disability as he alleges, the Application in respect of those allegations was clearly not filed within one year of their occurrence. Nor has the applicant provided a good faith explanation for the delay in filing an Application.

32Although the applicant suggests that there was continuing discrimination after 1995 because he was continually not provided with full-time work, there does not seem to be any basis to suggest that in the years after 1995 this could have had anything to do with disability. In fact the applicant indicated that after 1995 disability never came up as a factor as he did not have any disability until he developed kidney problems in about 2008.

33I find that there is no reasonable prospect that the applicant could successfully establish discrimination due to disability in respect of why he was not given work on a full-time basis subsequent to 1995. In addition, it is clear that the Application was not filed in time with respect to those allegations.

34At the summary hearing, the applicant indicated that there may have been a recent incident of alleged discrimination related to disability in December 2011, when he spoke to the administrator about why he was not getting more supply work. As noted, he alleges that she asked him why he wanted to work since he was disabled. The applicant explained that he does not know why the administrator would have said this since he is not now disabled and since nothing had been mentioned about disability for many years.

35Pursuant to section 10(2) of the Code, the right to equal treatment because of disability includes the right to equal treatment without discrimination because a person has or has had a disability or is believed to have had a disability.

36If the applicant was denied access to work because he was believed to have a disability, this could constitute discrimination contrary to section 10(2) of the Code.

37The applicant’s suggestion is that the reason that the respondent reduced his workload in late 2011 was that the respondent presumed he had a disability and that therefore he was not capable of working more hours. The applicant offers no explanation for why this would only arise in late 2011 after many years during which nothing about an actual or presumed disability was mentioned.

38I find there is no reasonable prospect that the applicant could successfully establish that the reason that he has not been assigned as much work as previously is because of a disability or presumed disability. In addition to the fact that the alleged comment or question about disability seems to have arisen with no plausible context, there is a complete explanation for the change in the amount of work the applicant was offered, which is that his profile was changed to provide that he was qualified to instruct in Spanish, but not in Italian. This is a change that had nothing to do with disability or perceived disability. While the applicant believes that he is qualified to instruct in Italian, this is an issue that has nothing to do with the Code.

39I am also satisfied that there is no basis to amend the Application to include the suggestion of reprisal that the applicant raised at the summary hearing. The reason for this is that the suggestion that there was reprisal arises from the change in the amount of work the applicant was given. As noted, it is apparent that there is a full non-discriminatory explanation for that change and, in my view, no reasonable prospect that the applicant could successfully prove reprisal if the Application were to be amended.

40For all of these reasons, I find that there is no reasonable prospect that the applicant could prove that any of the unfair or improper treatment, comments or decisions that he alleges happened had anything to do with a Code-protected ground. The Application is dismissed on that basis.