Khatkur v. Peel District School Board, 2012 HRTO 2074

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ranjit Khatkur

Applicant

-and-

Peel District School Board

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: October 30, 2012

Citation: 2012 HRTO 2074

Indexed as: Khatkur v. Peel District School Board

APPEARANCES

Ranjit Khatkur, Applicant

Richard Miller, Counsel

Peel District School Board, Respondent

Roy C. Fillion, Counsel

1The purpose of this Interim Decision is to address the applicant’s Request for an Order During Proceedings (the “Request”) to remove the named individual respondents and to require the respondent to produce certain classes of documents. The respondent concurs with the request to remove the individual respondents (albeit with a caveat), but opposes much of the request for production.

2This Request was filed in advance of a hearing which is scheduled to commence December 5, 2012. The parties agreed that the issues could be more efficiently canvassed by oral submissions, and to that end a teleconference hearing was held on October 25, 2012.

decision and analysis

Request to Remove Individual Respondents

3In her original Application, the applicant named her then Superintendent and Principal as individual respondents, as well as the Peel District School Board (the “Board”) as the organizational respondent. She now takes the position that it is unnecessary to name the individual respondents for the following reasons:

• The Board has not taken the position that the individuals named were acting outside their duties as Board employees;
• The Board appears to indicate that it would be liable for the conduct of the individuals;
• There is no concern about the Board’s ability to fulfil any remedial order should one be made; and
• There does not appear to be any aspect of the individual respondents’ conduct for which it would be appropriate to make a specific remedial order against them.

4I concur that, based on the above considerations, it is appropriate to remove Scott Moreash and Stacey Wilson as respondents to this proceeding. The Board is content to have them removed, although it is concerned that, having lost their party status, these individuals may not, as of right, sit through the entire proceedings (i.e., they would now potentially be affected by an order excluding witnesses). This, in turn, would affect their ability to provide advice to counsel. It was agreed that this issue could be addressed at the outset of the hearing on the merits.

Request for Production

5One of the considerations in a request for production is whether the documents are arguably relevant. In a previous Interim Decision, 2012 HRTO 472, Vice-chair Liang provided the following brief summary of this case:

The applicant is a Vice-Principal employed by the respondent the Peel District School Board (the Board), who self-identifies as Punjabi Sikh, or South Asian. The Application alleges discrimination in the failure to promote the applicant to the position of Principal, based on her race, colour, place of origin and ethnic origin (collectively “race”) and association with “racialized, minoritized and/or equity seeking groups”, as well as reprisal.

6In making my finding concerning what documents ought to be produced at this stage, is important to understand that this hearing has been bifurcated into phases, and that Vice-chair Liang ordered that the parties’ obligation to disclose and produce documents under Rules 16 and 17 is limited to those documents which are relevant to the current phase of the hearing (2012 HRTO 772).

Requests 1-3: Vice Principal Evaluations, Draft Evaluations, Other Performance Communications and Communications Relating to Promotions (2004-2008)

7Counsel for the respondent indicated that during the relevant time period, only one Vice Principal evaluation was conducted (for Lawrence DeMaeyer), and it is prepared to release that evaluation subject to conditions to assure that his privacy interests are respected. After some discussion, the parties agreed that the following conditions were sufficient to maintain confidentiality of this record over and above the protection set out in Rule 3.3:

• The applicant shall keep the content of this document in absolute and strict confidence at all times, without time limitation, including after the final disposition or other resolutions of this matter. The applicant will not disclose the content of this document to any third party, person or entity whatsoever.
• The respondent will provide two copies of this document to counsel for the applicant, who will retain possession of these copies at all times and will not make any additional copies except for the purpose of the adjudication or other resolution of this matter. Upon final completion of this proceeding, counsel may retain one copy of the document for the file, but shall destroy and/or return to the respondent all remaining copies.
• In the event that the applicant ends the retainer, counsel shall immediately advise the respondent so that it can make further submissions concerning the protection of privacy of this document.

8The respondent objects to being required to produce the remaining documents because, in its view, the applicant’s requests were vague and the relevance of the sought documents is unclear. It also objects that the requests were made too late, there was never any earlier indication that these documents may have been viewed as relevant, and it is, therefore, unlikely that any documents now exist.

9The respondent takes the position that there are no other documents relating to performance of the Vice Principals during this period because only the one Vice Principal, Lawrence DeMaeyer, went through the performance process. However, counsel for the applicant explained that the documents with respect to his client (which have already been produced) show that before her performance appraisal was formalized, the two Principals involved were consulting with one another as well as with the Superintendent. Based on this material it is his belief that there could be several drafts of the DeMaeyer performance appraisal with comments on them.

10Counsel for the applicant also indicated his client received communications, specifically emails concerning performance issues (e.g., criticism concerning specific matters), that were not part of the formal performance process. The applicant wishes to compare the material she received with the material received by the other Vice Principals.

11Finally, the respondent takes the position that none of the Vice Principals were seeking promotion during the specified time period, and so there would be no documents with respect to these individuals concerning promotion. The applicant submits that the she seeks communications, such as requests to be mentored or placed on certain committees that would relate to the informal promotional process, but which would not require the Vice Principal in question to be actively seeking promotion.

12I understand that there is not likely to be much, if any, information remaining of the nature sought by the applicant, given that the passage of time. I also appreciate the respondent’s representation that two of the Vice Principals were retiring and of the remaining two, only one sought out a performance appraisal. However, the applicant has persuaded me that that the documents sought may be arguably relevant.

13Accordingly, I order the respondent to review its files, including any files kept by the two Principals, still in existence, and the email system, for notes relating to performance and/or promotion of the Vice Principals at Brampton Centennial Secondary School (“BCSS”) during the time period from July 2004-December 2008. The conditions for maintaining confidentiality set out in paragraph 7 above apply to any documents produced.

Requests 4-6

14Counsel for the respondent indicated that a search has been made for these documents and they do not exist. No order is necessary.

Requests 7-9: Completed Application Packages for All Internal Candidates Who Applied to Become a Secondary School Principal and a List of All Individuals Who Were Approved for Promotion to Principal between July 2002 and December 31, 2010

15In this material, the applicant specifically seeks out the application package for Lawrence DeMaeyer submitted when he applied to become a Principal after his departure from BCSS. I concur with counsel for the respondent that this material relates to phase II of the hearing on liability and that would be the appropriate time to consider the appropriateness of this request. The request for the production of this material is denied as premature.

Request 10

16The respondent indicates that has produced all documents related to the applicant’s request to be promoted. Accordingly, no order is necessary with respect to this request.

Request 11: Requests by Vice Principals to Have Requirements and/or Criteria under the Promotion Process Waived from September 1998 to December 2008

17For the reasons discussed with respect to Requests 7-9, this request for production is denied.

Supplemental Requests

18By correspondence dated October 24, 2012, the applicant requested further documents. The respondent agreed it would produce its Transfer Policy and so no order is necessary with respect to that request.

19I agree with the respondent’s submissions that the applicant’s request for the documents relating to Lawrence DeMaeyer’s subsequent employment at Lincoln Alexander Secondary School – specifically those relating to his performance and promotion – are not relevant to the first phase. Inasmuch as the applicant feels that her treatment by her superiors at BCSS was unfair, this can be the subject of cross-examination. The request for these documents at this time is denied.

order

20In sum, I have made the following orders:

1. The named individual respondents, Stacey Wilson and Scott Moreash, shall be removed as parties to this Application and the style of cause amended accordingly.

2. Within 14 days of the date of this Interim Decision, the respondent shall search for and produce evaluations, draft evaluations, other performance communications and communications relating to promotions of BCSS Vice Principals (other than the applicant) for the period from July 1, 2004 to December 31, 2008 subject to the following conditions relating to confidentiality:

a. The applicant shall keep the content of these documents in absolute and strict confidence at all times, without time limitation, including after the final disposition or other resolutions of this matter. The applicant will not disclose the content of these documents to any third party, person or entity whatsoever.

b. The respondent will provide two copies of these documents to counsel for the applicant, who will retain possession of these copies at all times and will not make any additional copies except for the purpose of the adjudication or other resolution of this matter. Upon final completion of this proceeding, counsel may retain one copy of these documents for the file, but shall destroy and/or return to the respondent all remaining copies.

c. In the event that the applicant ends the retainer, counsel shall immediately advise the respondent so that it can make further submissions concerning the protection of privacy of these documents.

3. The applicant’s request for completed application packages for all internal candidates who applied to become a secondary school principal in the Board, and a list of all individuals who were approved for promotion to Principal in the Board, for the time period between July 2002 and December 31, 2010 is denied.

4. The applicant’s request for the production of requests by Vice Principals to have requirements and/or criteria under the Board’s promotion process waived from September 1998 to December 2008 is denied.

5. The applicant’s request for the documents relating to Lawrence DeMaeyer’s subsequent employment at Lincoln Alexander Secondary School – specifically those relating to his performance and promotion – is denied.