Blanco v. Toronto District School Board, 2012 HRTO 1779

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elmer Jose Blanco Applicant

-and-

Toronto District School Board Respondent

INTERIM DECISION

Adjudicator: Eric Whist Date: September 19, 2012 Citation: 2012 HRTO 1779 Indexed as: Blanco v Toronto District School Board

WRITTEN SUBMISSIONS

Elmer Jose Blanco, Applicant: Self-represented Toronto District School Board, Respondent: Glorie Alfred, Counsel

1This is an Application filed on May 11, 2011 under the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). This Interim Decision addresses a Request for an Order during Proceedings ("RFOP") made by the applicant to amend his Application and to request the production of further documents from the respondent.

BACKGROUND

2The Application alleges discrimination in employment. The applicant is a teacher employed by the respondent. He teaches in the Technological Education, Business and Computer Studies Department (the "Tech Department") at Emery Collegiate Institute ("Emery"). The Application principally alleges that Ms. Briggs, a curriculum leader at Emery, discriminated against the applicant on the basis of race, colour, ancestry, place of origin, citizenship and ethnic origin by excluding him from various Tech Department activities.

3In an Interim Decision dated February 7, 2012, 2012 HRTO 265, the Tribunal removed Ms. Briggs as a personal respondent and dismissed allegations contained in the Application arising from incidents in 2004-2005 on the basis that they were untimely. The Tribunal determined that the Application's allegations that the applicant was excluded from Tech Department activities beginning in September 2008 and continuing until May 2010 constitute a series of incidents pursuant to section 34(1)(b) of the Code that makes all of these alleged incidents timely.

4A hearing has been scheduled in this matter for October 15 and 16, 2012.

REQUEST TO AMEND THE APPLICATION

5The applicant filed his RFOP on August 24, 2012 requesting that the Application be amended to include allegations arising out of actions taken by the respondent in June 2012.

6The applicant submits that in June 2012 the respondent assigned him a split timetable which requires him to teach in two schools (one in the morning, one in the afternoon) and to teach subjects that are unrelated to transportation technology, his area of expertise. The applicant alleges transportation technology classes at Emery have been assigned to two teachers, one who has less seniority and one who is less qualified. The applicant identifies these teachers as white. The applicant submits that these teachers are being preferentially treated. The applicant further alleges that the requirement that he teach in two different schools would cause him undue hardship as the applicant has a physical disability that impairs his mobility for which he has been granted workplace accommodation.

7The applicant alleges that the respondent's actions described above are in reprisal for the applicant's Application before the Tribunal.

8The applicant's request for the production of documents is related to his request to amend his Application. He requests copies of the 2012-2013 timetables for the two teachers who have been given transportation courses at Emery to teach in 2012-2013.

9The respondent opposes the applicant's request to amend his Application and his related request for production. The respondent submits that the applicant has made no link between this allegation of reprisal and any of his previous allegations. The respondent submits the applicant has made no link between the allegations made against Ms. Briggs (who the respondent states is no longer at Emery) between September 2008 and May 2010 and the actions of school administrators in June 2012. The respondent submits there is no plausible or reasonable link between the underlying Application and the new allegation of reprisal which would substantiate a prima facie allegation of reprisal before the Tribunal. This respondent submits that adding this new allegation would not assist the Tribunal in dealing with the allegations that are currently before it.

10The respondent submits that the applicant's request will broaden the scope of the allegations before the Tribunal which would only serve to unnecessarily delay/extend the hearing process as it would require the filing of an additional response, additional documentation, and additional witnesses in response to the new allegations.

DECISION

11In considering requests to amend applications under section 34 of the Code the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend and the prejudice to the respondent (see Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563). The Tribunal is also guided by what would be most fair, just and expeditious in the circumstances.

12The applicant's request to amend the Application is denied. The Application alleges that the applicant was subject to discriminatory treatment between September 2008 and May 2010. The Application is filed on May 11, 2011. The proposed amendment is to include allegations regarding events in June 2012, two years after the events that give rise to the Application and over a year after the Application is filed. The applicant has not indicated why he is of the view that the June 2012 events of concern are related to his earlier allegations and his filing of his Application. I further note that while the applicant has characterized the respondent's actions in June 2012 as acts of reprisal he has also clearly intimated that they are acts of discrimination based on race and disability. In my view these allegations are substantial in nature and would decidedly broaden the scope of the hearing. It is also unlikely, in my view, that addressing these allegations would assist the Tribunal in determining the allegations in the current Application.

13The RFOP is also made less than two months prior to the scheduled hearing. In my view, the time available for the respondent to file an amended Response and to prepare further witnesses and documents in response to these further allegations prejudices the respondent. It may also require that the hearing be adjourned. In my view it would not be fair, just or expeditious to allow the applicant's request.

14Given this decision the applicant's related request for the production of documents is denied.

15It is still open to the applicant to file a separate application in regards to events in June, 2012.