HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jodi-Anne Formosi
Applicant
-and-
Halton Catholic District School Board and Ontario English Catholic Teachers’ Association
Respondents
decision
Adjudicator: Geneviève Debané
Indexed as: Formosi v. Halton Catholic District School Board
1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) which alleges discrimination in employment and membership in a vocational association on the basis of sex and reprisal. The respondents filed separate Responses denying the allegations in the Application.
2In a Case Assessment Direction dated May 12, 2011, the Tribunal granted the respondents’ Requests for Summary Hearing and set out the details and procedure for the hearing.
3A half-day summary hearing by teleconference was held on November 18, 2011 in which all parties participated.
Background
4After reviewing the written and oral submissions of the parties the following are the relevant facts. The applicant is employed with the respondent Halton District Catholic School Board (the “Employer” or “Board”) as a teacher. The applicant’s terms and conditions of employment are governed by a collective agreement between the Board and her bargaining agent the Ontario English Teachers’ Association (the “Association”).
5In or about December 2009, Teacher A who is a male, and subsequently resigned made an internal harassment complaint against Teacher B who is also a male. Teachers A and B are also represented by the Association. The parties agree that the nature of the harassment complaint was not Code related but was made pursuant to the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”) for alleged bullying and harassment. The Board retained the services of a third party investigator who interviewed the applicant in or about April 2009 during which she gave a statement in support of Teacher A.
6On September 7, 2010, Teacher B filed a harassment complaint against both the applicant and Teacher A. All of the parties agree that this harassment complaint is not Code related. The applicant believes that the reason why Teacher B filed this harassment complaint was because information was “leaked” about her statement to the third party investigator.
7On September 8, 2010, one day after she was advised that Teacher B had made his complaint, the applicant filed a harassment complaint against Teacher B. All the parties agree that this harassment complaint was not Code related. In her harassment complaint the applicant lists a number of allegations against Teacher B which date as far back as 1999, including events that occurred on a picket line in 1999, and a complaint made by Teacher B to the Attorney General against the applicant’s father because the applicant had indicated that her father, who is a Justice of the Peace, was representing her in an application at the Ontario Labour Relations Board against Teacher B. It should be noted that the applicant had also filed a complaint against Teacher B on February 17, 1999 which had been investigated by the Employer.
8On September 10, 2010 the applicant and Teacher B were temporarily removed from their positions and the workplace and assigned home duties. The applicant believes that this is a reprisal because she initiated a complaint against Teacher B.
9The applicant takes issue with the Association because she believes that it demonstrated its support of Teacher B when one of its representatives attended a Board meeting with Teacher B at the school during off hours. During the summary hearing the applicant stated that she believes that the fact that Teacher B was permitted to attend a Board meeting is evidence that she was treated differently as a woman. The applicant did not ask the Employer if she could attend this Board meeting.
10The applicant filed a grievance under the Collective Agreement alleging unjust discipline which was referred to arbitration. Teacher B was granted some form of status at the hearing as an interested and/or affected party.
11On December 1, 2010, for the second time criminal charges which the applicant sought to personally have laid against Teacher B, were withdrawn by the Crown.
12The Board’s investigation into the two complaints determined that neither the applicant nor Teacher B, had harassed the other but that there had been tension between them which had to be resolved so that the workplace would not be disrupted.
13On December 20, 2010, the arbitrator seized with the applicant’s unjust discipline grievance sought to settle the dispute between the parties. It appears that the Board may have considered transferring both the applicant and Teacher B to different schools. In order to avoid this, a protocol was developed which involved trying to ensure that the applicant and Teacher B had minimal contact. Teacher B agreed to sign an agreement to that effect. The applicant refused to sign the agreement.
14On January 14, 2011 the Employer wrote to the applicant advising her that even though she had not signed the agreement she had to respect certain conditions, including where she could park her car and that she could not attend one of the buildings in which Teacher B has classes, unless there is an emergency. The applicant was permitted to return to work under these conditions even though she did not sign the agreement.
15The applicant believes that the conditions and restrictions imposed on her by the Board have a negative impact on her ability to work, including that as a student success teacher she should not be restricted from seeking out her students regardless of where they are at the school. The applicant also believes that as the victim of harassment she should not be subject to any restrictions in her movements and that any restrictions constitute a reprisal on her. She does not believe that the restrictions have a similarly negative impact on Teacher B.
16The Association believed that the agreement was a fair compromise and withdrew the applicant’s grievance on January 18, 2011, since the applicant had been returned to work by the employer.
17On February 10, 2011, the applicant filed a complaint with the Ontario Labour Relations Board alleging that she had suffered a reprisal pursuant to section 50 of the OHSA. In this same complaint she alleges a breach of the Association’s representational duties pursuant to section 74 of the Labour Relations Act, S.O. 1995, c. 1, Sched. A. The applicant has withdrawn this complaint.
18The applicant stated during the conference call that she believes that she was treated differently because she is a woman, including the fact that not all of her witnesses where interviewed by the Board. Further, she only made the connection that this treatment was discriminatory and linked to her sex when the Union withdrew her grievance. The applicant acknowledges that since she has returned to work there have been no further negative interactions with Teacher B.
Decision
19Having reviewed both the written and oral submissions of the parties and case law, I find that this Application has no reasonable prospect of success and should be dismissed for the reasons that follow.
20The Tribunal explains the nature of the test for summary hearing in the decision of Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:
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.
21It is clear that there is a long history between the applicant and Teacher B, which has spanned more than a decade. The applicant acknowledges that the issues with Teacher B are not Code related and the applicant has not suggested any evidence which would support differential treatment on the basis of her sex.
22The applicant has not pointed to any evidence that establishes, or from which an inference could be drawn, that not all of her witnesses were contacted because she was a woman. The applicant provided no basis for refuting the Board’s explanation that a number of her witnesses were not contacted because they had no information with respect to any current allegations made. For example, two of the witnesses that she believes should have been interviewed were her father, with respect to allegations that occurred over a decade ago, a department head who had left the school in 2005 and another teacher who left the school in 2007. The Board points out that none of these witnesses had information which were proximate to the applicant’s complaint. Further, the Board had investigated a complaint the applicant had made against Teacher B in 1999 which raised some of the same issues, and had just retained a third party investigator which had, to some extent, already investigated Teacher B’s conduct and interviewed the applicant.
23With respect to Teacher B attending a Board meeting during his suspension, I note that the applicant never made any inquiries about whether or not she could attend the meeting. The applicant has proposed no evidence which could reasonably lead to a conclusion that she was treated differently on the basis of her sex.
24With respect to the imposition of conditions by the Board on the applicant any negative impact or perceived inequity in the division of the use of the school property, cannot reasonably be related to her sex. If there is any difference between her and Teacher B, it’s because the conditions imposed on the applicant have a different impact on her because of the nature of the work that she performs and the location of her work. Though parties also spent some time on the call to establish the exact nature of the restrictions imposed by the Board it is not necessary nor appropriate for the Tribunal to determine the issue of the proper interpretation of these restrictions.
25With respect to the allegations made against the Union, the applicant concedes that the Union has filed a number of grievances on her behalf in the past. It may be that a representative of the Association attended a Board meeting with Teacher B. It may also be the case that the Association supported Teacher B over the applicant. However, the applicant has not pointed to any evidence that would establish that this perceived lack of support was denied to her because of her sex. There is no evidence that would establish a discriminatory motive behind the Association’s withdrawal of her grievance.
26In the decision of Noble v. York University 2010 HRTO 878, the Tribunal describes the legal elements of establishing a claim of reprisal under the Code at paragraph 3 and 4:
Thus, in a complaint or application alleging reprisal, the following elements must be established:
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.
In addition, the following principles are relevant:
a. There is no strict requirement that the complainant has filed a complaint or application under the Code, and
b. There is no requirement that the Tribunal find the respondent did in fact violate the complainant’s substantive rights to be free from discrimination.
27Applying the principles in Noble, the applicant has not satisfied at least the second element of reprisal since she has no evidence to support that she claimed, or attempted to enforce a right under the Code. In fact, the parties were in agreement that none of the workplace harassment complaints filed by any teacher were Code related.
28Since the Application has no reasonable prospect of success, the Application is dismissed against both the respondents.
Dated at Toronto, this 1st day of February, 2012.
“signed by”
Geneviève Debané
Vice-chair