Blanco v. Toronto District School Board, 2012 HRTO 265

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: February 7, 2012

Citation: 2012 HRTO 265

Indexed as: Blanco v. Toronto District School Board

APPEARANCES

Elmer Jose Blanco, Applicant ) Self-represented

Toronto District School Board, Respondent ) Glorie Alfred, Counsel

1This is an Application filed 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 respondent asking the Tribunal to remove the personal respondent and to dismiss parts of the Application on the basis that they are untimely. It also addresses a further RFOP made by the applicant asking the Tribunal to find that the respondent did not meet its obligations to provide a complete Response and to, accordingly, take a number of steps under its Rules of Procedure.

BACKGROUND

2The 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”). He teaches Transportation Technology. He has taught at Emery for approximately eight years. The Application names Joan Briggs as a personal respondent. Ms. Briggs was, at all material times, a curriculum leader in the Tech Department at Emery.

3The Application alleges discrimination in employment on the basis of race, colour, ancestry, place of origin, citizenship and ethnic origin. The Application principally alleges that Ms. Briggs discriminated against the applicant by excluding him from various Tech Department activities.

4The Application alleges that Ms. Briggs did not properly recognize and acknowledge the applicant’s role in facilitating the donation of a truck to Emery in 2004 and 2005. It alleges that Ms. Briggs excluded the applicant from meetings in the Tech Department related to Emery’s Specialist High Skills Major program during the 2008-2009 school year, specifically from September 2008 to March 2009. The Application alleges that Ms. Briggs did not include the applicant in the “Sampler” program sessions at Centennial College that occurred in May 2010. The Application refers to other meetings held in September 2009 and February 2010 in which the applicant believes he was differentially treated. The Application alleges that the applicant has made a number of informal and formal complaints about how he was treated that were not appropriately addressed by the respondent.

REQUEST TO REMOVE THE PERSONAL RESPONDENT

5Rule 1.7(b) of the Tribunal’s Rules affirms the Tribunal’s power to “add or remove a party”. In Persaud v. Toronto District School Board, 2008 HRTO 31 the Tribunal outlined the following list of “non-exhaustive” factors in considering whether a personal respondent should be removed:

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who [is] sought to be removed?

3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

5. Would any prejudice be caused to any party as a result of removing the personal respondent? (para 5)

6The respondent submits in its RFOP (and in its Response) filed September 16, 2011 that the five factors outlined in Persaud demonstrate that the removal of Ms. Briggs as a personal respondent is warranted. The respondent submits Ms. Briggs was an employee of the respondent who was acting in the course of her employment when she interacted with the applicant and there are no issues or disputes relating to the respondent’s deemed or vicarious liability for Ms. Briggs’ actions while carrying out her employment responsibilities. The respondent submits that this is not a case in which the applicant is seeking a remedy from Ms. Briggs and that it is not a case in which it would be appropriate for the Tribunal to award a remedy against Ms. Briggs if it was to find that there has been a violation of the Code. The respondent submits there is no prejudice to the applicant if Ms. Briggs is removed as a personal respondent given that the respondent has deemed or vicarious liability for her actions.

7The applicant submits in his Reply to the respondent’s RFOP that Ms. Briggs’ actions are a central issue in his Application and that these actions do not comply with the respondent’s expectations for its employees as outlined in its Code of Conduct and its Equity and Human Rights policies. The applicant relies on the Tribunal’s decision in Khaiter v York University, 2009 HRTO 1489 in which the Tribunal denied the respondent’s request to remove two personal respondents. In Khaiter the Tribunal determined that the personal respondents in question played a central role in the employment relationship between the applicant and the institutional respondent and that there was a credible possibility that if the Application was to succeed the Tribunal might find the personal respondents liable for individual remedies.

8I am satisfied that the five factors noted in Persaud favour the removal of Ms. Briggs as a personal respondent. In my view there is no compelling reason for the named personal respondent to remain as a party. While it is true that Ms Briggs’ alleged actions are central to the applicant’s case, the respondent recognizes and accepts its deemed or vicarious liability for Ms. Briggs’ alleged actions. There is no persuasive information before me to indicate Ms. Briggs was acting outside the course of her employment such that it would be appropriate to potentially award remedies specifically against her. Finally, in my view, there is no basis to conclude that there would be any prejudice caused to the applicant as a result of removing Ms. Briggs. Accordingly, I order Ms Briggs be removed as a respondent from this Application and that the style of cause be amended accordingly.

REQUEST TO REMOVE UNTIMELY ALLEGATIONS

9The Application was filed on May 11, 2011. The respondent submits in its RFOP (and its Response) that the Tribunal should strike all allegations occurring prior to May 11, 2010 in accordance with the one year time limit for filing applications set out in section 34(1) of the Code. Section 34(1) and (2) of the Code state:

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.

10The respondent submits that the Application cannot proceed with its allegations related to the incidents in 2004 and 2005 involving the donation of a truck to Emery and its further allegations that the applicant was excluded by Ms. Briggs from meetings in the Tech Department during the period September 2008 until March 2009 as these incidents occurred more than one year before the filing of the Application. The respondent submits that these incidents cannot be considered as part of a series of incidents that would make them timely within the meaning of section 34(1)(b) of the Code. The respondent accepts that the allegations that occur after May 2009 that include allegations of being excluded from the “Sampler” program sessions at Centennial College in May 2010 are properly before the Tribunal.

11The respondent further submits that the applicant has not shown that the delay in filing his Application in relation to the allegations prior to May 2010 has been incurred in good faith which would allow the Tribunal to exercise its discretion to consider these allegations pursuant to section 34(2) of the Code.

12The applicant opposes the respondent’s request to dismiss a number of his allegations on the basis of delay. The applicant submits in his Reply to the respondent’s RFOP that all of the alleged incidents described in his Application are related and as such they constitute a series of incidents as defined by section 34(1)(b). The applicant submits that all of the incidents are related in that they all involve Ms. Briggs exercising her authority as a curriculum leader, in a discriminatory manner; using her position of responsibility to treat the applicant differently from other members of the Tech Department. The applicant submits that he did attempt to complain about the way he was treated by making informal and formal complaints to the respondent under its internal human rights complaints process but that this process was unduly slow which accounts, in part, for the delay in filing his Application. The applicant submits that his complaints to the respondent were made in good faith and that he has had to now pursue his rights under the Code because of the respondent’s failure to uphold his complaints.

13Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within a one-year time limit. Under section 34, the Tribunal has no jurisdiction to deal with a complaint filed more than a year after the incident, or the last incident in a series of incidents, unless it is satisfied that the circumstances in subsection 34(2) exist.

14The allegations related to the donation of the truck that occurred in 2004 and 2005 are dismissed for delay. These allegations occurred more than six years prior to the filing of the Application and over three years prior to the applicant’s allegations that he was excluded from departmental meetings in 2008-2009. I do not accept that the 2004-2005 related allegations constitute part of a series of incidents that continue until after May 2009 given the significant gap in time between when they occurred and the applicant’s next allegations that relate to events in 2008-2009. I agree with the Tribunal’s decision in Chintaman v. Toronto District School Board, 2009 HRTO 1225 that where a gap of more than one year occurs between alleged incidents of discrimination these incidents cannot generally be said to form a series of incidents under section 34(1)(b).

15I am of the further view that the applicant has not provided a reasonable explanation for the delay in filing an application in relation to his 2004 and 2005 allegations that would indicate that the delay in pursing these allegations was incurred in good faith. The contention that he has pursued his rights under the respondent’s internal complaints processes does not account for the significant delay in pursuing these specific allegations. The applicant has not sufficiently explained why he did not act with greater diligence in relation to events that occurred over six years prior to his Application.

16I am satisfied however, that the applicant’s allegations that he 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) that makes all of these alleged incidents timely. I do find these alleged incidents are similar in character in that they are all based on claims that Ms Briggs excluded the applicant from departmental activities. Importantly, I note that the Application alleges that in addition to Ms. Briggs excluding the applicant from departmental meetings in the period September 2008 to March 2009 she excludes him from a departmental curriculum writing project in September 2009, during the next academic year. The Application also alleges that the applicant complained about Ms. Briggs’ treatment at a meeting which was held with the school principal in February 2010 at which time Ms. Briggs denied that she had discriminated against the applicant. The Application also alleges that in March 2010 Ms. Briggs decided not to advise the applicant of the events that take place at Centennial College in May 2010 as part of the “Sampler” program.

17In my view, the fact that the alleged events of September 2008-March 2009 are followed by further alleged events of the same nature in September 2009 and March 2010 involving the applicant and Ms. Briggs contributes to my finding that there is a series of alleged incidents that begin before May 2010 and are made timely by further incidents of alleged discrimination in May 2010. Accordingly, the Application proceeds in relation to the applicant’s allegations beginning in September 2008.

REQUEST TO APPLY THE TRIBUNAL’S RULES OF PROCEDURE

18The applicant submits in a RFOP filed on November 8, 2011 that the respondent failed to provide a complete Response as required by Rule 8.2 of the Tribunal’s Rules of Procedure. The applicant submits that the respondent’s request for an extension to file its Response (which the Tribunal granted) was used by the respondent not to answer his allegations but to rather focus on why the Application should be dismissed for delay and for the removal of Ms. Briggs as a personal respondent. The applicant is of the view that the respondent acted in bad faith in asking for an extension from the Tribunal and for not fully responding to his allegations. The applicant requests that the Tribunal take steps in response to the respondent’s actions under its Rules of Procedure. He requests that Tribunal take these steps pursuant to Rule 1.1 (The Tribunal will liberally interpret its rules to facilitate an accessible process and to ensure the fair, just and expeditious resolution of the merits of the matters before it) and Rule 1.7(v. 1) (The Tribunal may make such orders or give such directions as are necessary to prevent abuse of its processes…). More specifically, the applicant requests that the Tribunal apply Rule 5.5 which states:

5.5. Where an Application is delivered to a Respondent who does not respond to the Application, the Tribunal may:

a) deem the Respondent to have accepted all of the allegations in the Application;

b) proceed to deal with the Application without further notice to the Respondent;

c) deem the Respondent to have waived all rights with respect to further notice or participation in the proceeding;

d) decide the matter based only on the material before the Tribunal.

The respondent has not filed a Reply to this RFOP.

19The applicant’s request is denied. In my view there is nothing extraordinary about the nature of the respondent’s Response that warrants the type of action being sought by the applicant. The Response does provide a considered answer to the Application. It provides a narrative of events from the respondent’s perspective that includes denials of the allegations. It provides submissions on the issue of delay and and the removal of a personal respondent. The fact that the Response may not provide the information the applicant would like to see does not lead me to find that there has been any abuse of process or that Rule 5.5 should be applied. Rule 5.5 it should be noted, is applied where a respondent has failed to respond to an Application.

20In summary, Ms. Briggs is removed as a personal respondent and the allegations in the Application about events that occurred in 2004 and 2005 are dismissed pursuant to section 34(1) of the Code.