HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Godfred Kwaku Hiamey

Applicant

-and-

Conseil scolaire de district Catholique Centre-Sud and Association des enseignantes et des enseignants franco-ontariens

Respondents

A N D B E T W E E N:

Godfred Kwaku Hiamey

Applicant

-and-

Nelligan O’Brien Payne LLP and Julie Skinner

Respondents

A N D B E T W E E N:

Godfred Kwaku Hiamey

Applicant

-and-

Ontario College of Teachers and

Association des enseignantes et des enseignants franco-ontariens

Respondents

A N D B E T W E E N:

Godfred Kwaku Hiamey

Applicant

-and-

Conseil scolaire de district Catholique Centre-Sud and

Association des enseignantes et des enseignants franco-ontariens

Respondents

A N D B E T W E E N:

Godfred Kwaku Hiamey

Applicant

-and-

Sack Goldblatt Mitchell LLP and

Association des enseignantes et des enseignants franco-ontariens

Respondents

Decision

Adjudicator: Geneviève Debané

Date: February 22, 2012

Citation: 2012 HRTO 301

Indexed As: Hiamey v. Conseil scolaire de district Catholique Centre-Sud

APPEARANCES

Godfred Kwaku Hiamey, Applicant ) Self-represented

Conseil scolaire de district ) Christian Paquette, Counsel Catholique Centre-Sud, Respondent )

Association des enseignantes et ) des enseignants franco-ontariens and ) Lise Leduc, Counsel Sack Goldblatt Mitchell LLP, Respondents )

Nelligan O’Brien Payne LLP ) Sean McGee, Counsel and Julie Skinner, Respondents )

Ontario College of Teachers, Respondent ) Lai-King Hum, Counsel

1The applicant was formerly employed by the Conseil scolaire de district Catholique Centre-sud (the “Board” or “respondent employer”) as a teacher. He was dismissed from employment on June 29, 2009, following three unsatisfactory performance appraisals conducted pursuant to Part X.2 of the Education Act, R.S.O. 1990, c. E.2, as amended (“Education Act”). After his dismissal, on July 3, 2009, the Board filed a complaint with the respondent the Ontario College of Teachers (“College”) as required by s. 277.40 of the Education Act (the “College complaint”), which is being processed by the College. The applicant’s bargaining agent was the Association des enseignantes et des enseignants franco-ontariens (the "Association" or the “respondent union”). The Association filed a grievance regarding the applicant’s dismissal which was referred to arbitration but withdrawn before the arbitration hearing for the stated reason that there was a minimal chance of success. The Association retained Lise Leduc, a lawyer at the respondent Sack Goldblatt Mitchell LLP (“Sack Goldblatt”), to represent it in that grievance proceeding. The Association also retained the respondent Nelligan O’Brien Payne LLP (“Nelligan O’Brien”) to represent the applicant before the College, and the personal respondent Julie Skinner was the lawyer assigned to the file.

2The applicant filed Application 2010-07687-I with the Tribunal on December 20, 2010, against the Board and the Association alleging discrimination in employment and contracts on the basis of race, colour and reprisal. The applicant filed a subsequent Application bearing File No. 2011-08382-I with the Tribunal on February 25, 2011, against the Board and the Association, alleging discrimination in employment and contracts on the basis of race, colour and reprisal.

3The applicant filed Application 2011-08117-I with the Tribunal on February 15, 2011, against Nelligan O’Brien and Julie Skinner, alleging discrimination in employment and contract on the basis of reprisal.

4The applicant filed Application 2011-08381-I with the Tribunal on February 25, 2011, against the College, alleging discrimination in employment and contracts on the basis of race, colour and reprisal.

5The applicant filed Application 2011-08383-I with the Tribunal on February 25, 2011, against Sack Goldblatt and the Association, alleging discrimination in employment and contract on the basis of race, colour and reprisal.

6In a Case Assessment Direction dated April 13, 2011, the Tribunal stated that the respondents did not need to file Responses to the Application and directed at paragraph 10:

The Registrar will schedule a half-day joint Summary Hearing by teleconference in all these Applications. The applicant will make argument first, explaining why the Applications should not be dismissed as having no reasonable prospect of success. The applicant shall be prepared to make submissions on the following issues, among others: (i) whether the Applications or parts of Applications that involve events that occurred more than one year ago should be dismissed because they are beyond the time limits in s. 34; and (ii) how there is a reasonable prospect that he could establish a link between the grounds he alleges or an assertion of human rights and the alleged actions of the respondents.

7Subsequently, the applicant wrote to the Tribunal advising that he believed that Sack Goldblatt should not be permitted to act for the Association because they were in a conflict of interest because they had represented him during the grievance procedure. In a Case Assessment Direction Dated July 6, 2011, the Tribunal advised the parties that this issue would be dealt with during the course of the conference call.

8Prior to the conference call, which was held on September 22, 2011, the applicant filed numerous and detailed submissions. All of the parties through their respective counsel participated during the conference call.

9This Decision addresses the following issues:

a. The applicant’s request to remove Lise Leduc and Sack Goldblatt as counsel for the Association;

b. An objection raised by the applicant during the conference call that the Tribunal not consider the submissions made by the Board’s counsel;

c. Whether the Applications or parts of Applications that involve events that occurred more than one year ago should be dismissed because they are beyond the time limits in s. 34 (the “delay issue”); and

d. Is there is a reasonable prospect that the applicant that could successfully establish a link between the grounds he alleges or an assertion of human rights and the alleged actions of the respondents

The removal of Sack Goldblatt as counsel

10The applicant takes the position that Ms. Leduc and Sack Goldblatt were retained to represent the applicant with respect to two grievances filed by the Association on his behalf and were therefore acting as his counsel. In correspondence to the Tribunal dated September 20, 2011, the applicant states that the grievances belonged to him and not the Association. As such, he submits, Ms. Leduc is in a conflict of interest and cannot act for the Association. The applicant also takes the position that since Sack Goldblatt is also a respondent in the Applications, it cannot represent the Association. The applicant submits that their proper role in these applications is that of a respondent and not that of counsel.

11Ms. Leduc submitted in writing and during the conference call that she was never retained to act for the applicant but was acting for the Association. In correspondence to the Tribunal dated September 16, 2011, Ms. Leduc relies on the decision Hansen v. Toronto (City) (“Hansen”), 2010 HRTO 13, and the cases cited therein, for the proposition that carriage of a grievance belongs to the Association and not the individual grievor.

12During the conference call, I issued an oral ruling denying the applicant’s request not to permit Ms. Leduc and Sack Goldblatt to act for the Association and advised that I would provide written reasons for doing so. The applicant advised me that he did not agree with my ruling.

13There was no factual or legal basis provided by the applicant which would cause this Tribunal to depart from the reasoning in Hansen. I agree with and adopt the reasoning in that case. The Tribunal is satisfied that the applicant has no evidence to support that Ms. Leduc and Sack Goldblatt are in a conflict of interest.

The Objection raised by the applicant with respect to the Board’s counsel

14After the Tribunal issued the oral ruling, it proceeded to hear the submissions of the applicant on the delay issue. Mr. Paquette, counsel for the Board, made detailed oral submissions responding to the applicant’s submissions on the delay issue. When the Applicant was given the opportunity to reply to Mr. Paquette’s submission, the Applicant advised the Tribunal that Mr. Paquette did not have any standing to make submissions to the Tribunal, that all his submissions should not be considered by the Tribunal, and he should not be permitted to make any further submissions. When he was asked to clarify the reasons for his objection, the applicant stated that Ms. Vachon from the firm of Heenan Blaikie had been retained on behalf of the Board, and not Mr. Paquette.

15In response to the objection, Mr. Paquette stated that his colleague Ms. Vachon had not been able to participate in the conference call and that he was replacing her. A representative of the Board who participated during the conference call confirmed that Mr. Paquette had been retained by the Board.

16I issued an oral ruling that Mr. Paquette was the Board’s representative and that the Tribunal would consider his submissions. The applicant disagreed and tried to argue further about my ruling. I advised him that I had made a decision and would not hear any more submissions on the issue of Mr. Paquette’s standing. The applicant then asked me if I was making this ruling “because he was black”. I advised the applicant that there was no legal basis for his objection not to accept Mr. Paquette’s submissions and that I would provide written reasons for my ruling but that the hearing had to continue. The applicant then proceeded to reply to Mr. Paquette’s submissions.

17For the following reasons, it was appropriate to allow Mr. Paquette to continue. At the commencement of the conference call, the Tribunal asked each counsel to identify themselves and the party that they were representing. Mr. Paquette identified himself as a lawyer from the firm of Heean Blaikie representing the Board. The applicant did not raise any objection to his participation at that time but waited until Mr. Paquette had finished his submissions before taking the position that he had no standing. If a party objects to the participation of a legal representative during the course of a hearing it should be done at the outset of the hearing. If not, unless circumstances change, the party may have waived their right to challenge the participation of a legal representative.

18In the legal profession, it is not uncommon for lawyers at the same law firm to attend at various stages during the litigation process. Indeed, in some circumstances a party may find out for the first time that a party opposite is represented by counsel at the first day of hearing. Unless it is to prevent an abuse of process, there is no basis to disqualify or prevent a licensed lawyer from acting for a party on the basis that the opposite party was not aware of the specific identity of the lawyer in question. The right of a party to legal representation is a fundamental right protected by section 10 of the Statutory Powers and Proceedings Act, R.S.O. 1990, c. S.22. To have accepted the applicant’s objection to Mr. Paquette’s participation, for the reasons cited, would have resulted in an unlawful denial of the Board’s right to be represented by legal counsel of its choice during the summary hearing.

The Delay Issue

19Only two respondents, the Board and the College, took the position that the Tribunal did not have jurisdiction over the subject-matter of the Application on the basis that the Application was filed more than one year after the last alleged incident of discrimination. This section only deals with the Board’s submissions that the Application as against it is out of time.

20The Tribunal’s power to hear and determine human rights applications is based on the Code. Section 34 states:

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.

21Therefore, the first issue that the Tribunal must determine is the date of the last incident of discrimination.

The Board: What is the last date of alleged Discrimination?

22Though the applicant has indicated in his Applications that the last incident of discrimination occurred on November 30, 2010 (the date he was advised that the Union was withdrawing his grievance), during the conference call the applicant took the position that the last incident of discrimination is ongoing because he continues to be unemployed and the Board is refusing to reinstate him to his former position. He also submitted that the last incident might be the day on which the arbitration hearing was scheduled to be heard. In his written submissions, the applicant took the position that there is collusion between the Board and the Association because, among other reasons, the Association was acting in a manner to advance the best interests of the Board. In his written submissions, the applicant took the position that the last incident of alleged discrimination occurred when the Association advised him that it was withdrawing his grievances, in November, 2010.

23The Board takes the position that the last incident of discrimination occurred on the date of the applicant’s termination from employment in June 2009 and that the acts alleged by the applicant to be ongoing and discriminatory are in fact continuing consequences of his termination from employment.

24I agree with the Board’s position that the last incident of discrimination with respect to the Board’s conduct occurred on June 29, 2009, when the applicant was terminated from his employment. All of the other alleged “incidents” relied upon by the applicant are in fact consequences of the alleged discriminatory decision to terminate the applicant’s employment. This interpretation is consistent with the Divisional Court’s findings in Visic v. Ontario Human Rights Commission, 2008 CanLII 20993.

25The Tribunal must next determine whether the delay was incurred in good faith.

The Board: Was the delay incurred in good faith?

26In his written submissions on the delay issue dated December 14, 2010, the applicant provides the following reasons:

a. He only found out about the Tribunal recently;

b. He believed that the union had the exclusive jurisdiction and thought that it might cease to represent him if he sought legal counsel; and

c. The Association never told him that he could file an application to the Tribunal and that he cannot be blamed for his ignorance.

27The Tribunal has extensive case law which has addressed the issue of whether the delay in filing an application was incurred in good faith. The applicant must provide a reasonable explanation for the delay: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424. The Tribunal has also stated that waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application. See, for example, Abutalib v. Toronto Police Services Board, 2010 HRTO 1697.

28Unionized employees in Ontario currently have access to two concurrent legal proceedings for the adjudication of workplace human rights issues. A union can file a grievance on behalf of a grievor and it is clear that if the grievance is referred to an arbitration hearing, the arbitrator will have the jurisdiction to interpret and apply the Code. However, in an arbitration preceding it is the union who has ultimate carriage of the grievance and it may at any time, subject to its duty of fair representation, pursuant to the Labour Relations Act, 1995, S.O. 1995, c. 1, Schedule A, withdraw, settle or abandon a grievance without the grievor’s consent. As such, a grievor does not have an absolute guarantee that a grievance will result in adjudication before an arbitrator. A unionized employee can also file an application with the Tribunal alleging a breach of the Code and is a party to the Application. In such circumstances, only the applicant employee, and not the union, will have the power to withdraw, abandon or settle the application.

29The Code does not prevent a unionized employee who has filed a grievance from filing an application with the Tribunal. Indeed, if an applicant also has an ongoing grievance with respect to the same subject matter, the Tribunal’s Rules and case law allow for the Application to be deferred pending the conclusion of the grievance proceeding. In such circumstances, an applicant has acted diligently, during the grievance and arbitration proceedings, to preserve his or her rights under the Code, and the respondents are on notice that there is an outstanding human rights Application which has been filed that may be reactivated by either party after the conclusion of the grievance proceeding.

30In this case, the applicant clearly understood and has always asserted, since his termination from employment, that his Code rights had been infringed. In these circumstances I do not accept the applicant’s submission that his lack of awareness of his rights is a good faith explanation for the delay. The Tribunal has repeatedly found that ignorance of the law is not a good faith explanation for the delay: Winston v. University Health Network, 2011 HRTO 1648. The Tribunal finds that the applicant has not established that the delay in filing the Application was incurred in good faith and it is not necessary for me to address the issue of prejudice.

31For these reasons, the Applications against the respondent employer are dismissed for delay.

Reasonable prospect of success

32In the documents and submissions filed with the Tribunal, the applicant asserts that all of the respondents collectively failed to address and correct the alleged discrimination that the applicant encountered with the respondent employer. It is his stated belief that, because they did not address his concerns either as quickly as he would like or “denounce” the discrimination he encountered, this entitled him to file the Applications against them. For example, the applicant stated that he had filed a complaint at the Law Society against Ms. Leduc (because of the conflict of interest issue discussed above), and that if the Law Society did not deal with his complaint shortly and to his satisfaction, that he would be filing a complaint against the Law Society.

33However, the Tribunal must determine if there is a factual underpinning that could successfully support the applicant’s assertion that the respondents violated his Code rights. The Tribunal has stated the issues to be addressed in a summary hearing in the case of Dabic v. Windsor Police Service, 2010 HRTO 1994:

A summary hearing is generally ordered at an early stage in the process. In some cases, the respondent may not have been required to provide a response. In others, the respondent may have responded but disclosure of all arguably relevant documents and the preparation of witness statements, which generally occur following the Notice of Hearing, will not yet have happened.

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.

Applications against the Association

34I note that the Labour Board in a decision dated August 8, 2011, dismissed the applicant’s s. 74 (duty of fair representation) application against the Association under the Labour Relations Act. Since no party took the position during the conference call that I was bound to follow this decision, I will assess the Applications against the Association on their merits.

35The Tribunal has held that it is not discrimination for a union or association to decide not to file or pursue a human rights grievance, unless the reason for doing so was based on one of the grounds in the Code. In Traversy v. Mississauga Firefighters’ Association, 2009 HRTO 996, the Tribunal stated as follows at para. 33:

Assuming that the Code also applies to this aspect of a union’s relationship with the employees it represents, a claim that the union violates the Code must be based on an assertion of differential treatment, and not simply a failure to act. The failure or refusal to take forward a human rights issue, such as accommodation of a disability in the workplace, is not, in and of itself, a breach of the Code. There may be many reasons that have no discriminatory overtones why a union might choose not to pursue a human rights claim on behalf of an employee: see Baylet v. Universal Workers Union, 2009 HRTO 700. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors. See also Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 at paras. 16-18.

36Having reviewed the submissions of the parties and the documents filed by the applicant, this Tribunal finds that there is no reasonable prospect that the applicant can prove that there was a discriminatory reason for the withdrawal of the applicant’s grievance. The Tribunal notes that the Association provided the applicant with fulsome reasons explaining why it was withdrawing the grievance, which included its minimal chance of success, and the applicant’s refusal to cooperate and follow the instructions of the Association. The applicant could not provide any evidence which supports his bald assertion that his race, colour or a reprisal were factors in the union’s decision.

37The Applications as against the respondent Association are dismissed since they have no reasonable prospect of success.

The Application against Sack Goldblatt

38Sack Goldblatt was the law firm retained to represent the Association during the grievance proceedings. The applicant did not identify any discriminatory conduct on behalf of Sack Goldblatt contrary to the Code. He takes issue with the fact that Sack Goldblatt did not continue to represent him during the grievance procedure, since the Association withdrew the grievance.

39Having reviewed the documents and submissions filed by the parties, I find that there is no basis to connect Sack Goldblatt’s actions to the grounds alleged by the applicant. The Tribunal dismisses the Application as against Sack Goldblatt since it has no reasonable prospect of success.

The Application against Nelligan O’Brien and Julie Skinner

40The applicant has alleged that Nelligan O’Brien and Julie Skinner discriminated against him in their representation of his interests in the complaint filed at the College. The applicant alleges that Ms. Skinner forwarded to him an offer to settle the complaint that it had received from the College. The applicant was unhappy with the offer to settle and filed an Application against Nelligan O’Brien and Julie Skinner. During oral submissions counsel for these respondents stated that Ms. Skinner was simply a messenger and had an obligation pursuant to ethical rules to advise her client, the applicant, that this offer had been proposed by the College.

41There is simply no evidence proposed by the applicant to support that any of the above-noted conduct was connected with a prohibited ground and the Application against Nelligan O’Brien and Julie Skinner is dismissed as having no reasonable prospect of success.

The Application against the College of Teachers

42The applicant has alleged that the College has discriminated against him because it accepted the complaint that was filed by the respondent employer with respect to his termination from employment. The College asserts that there is a statutory reporting mechanism with respect to teachers and that it is compelled by legislation, the Education Act, to receive and deal with these complaints. Further, even accepting the applicant’s submission the Application against it was not filed within one year of the last date of alleged discrimination, since the complaint was received on July 3, 2009.

43Having reviewed the submissions and the documents filed by the parties, it is clear that the College is required under the Education Act to receive the complaint filed by the Board and to follow its regular procedure in dealing with the complaint. In previous decisions, the Tribunal has recognized the College’s mandate to deal with complaints under the Education Act; for example Abi-Mansour v. Ontario College of Teachers, 2011 HRTO 601. I cannot accept that the fact that the College received the Board’s complaint, as mandated by law, is an “incident” as contemplated by the Code. In order to establish an “incident”, the applicant must be able to demonstrate or allege some positive act, conduct and/or omission committed by the College.

44Further, the applicant has not demonstrated that the treatment of his complaint by the College is connected to a Code ground, and therefore the application against the College is dismissed as having no reasonable prospect of success.

The application against the respondent employer

45Even though the Tribunal has dismissed the Applications against the respondent employer on the basis of delay, I find it appropriate in these circumstances to address the issue of whether there is a reasonable prospect of success against the respondent employer.

46The applicant alleges a number of reasons why his termination from employment was unjust, including;

a. The employer did not have just cause to terminate his employment;

b. He was subject to a fixed-term contract during which his employment could not be terminated;

c. Representatives of the respondent employer conspired to have a female teacher file a false complaint of harassment against him; and

d. He was subjected to a number of performance reviews which did not accurately reflect his teaching abilities.

47Though the Tribunal repeatedly asked the applicant to explain a link between the termination of his employment and the Code, the only evidence that the applicant had was that he overheard a representative of the employer telling another teacher that he was sad because he was going to have to let a specific female teacher go in the next year because of lack of work. This, apparently, occurred months prior to his termination from employment. The applicant alleges that it is only when he was terminated from his employment that he realized that representatives of the employer had conspired to create falsehoods in order to justify his termination.

48Having reviewed the materials submitted by the parties, and the applicant’s lengthy submissions, I find that the Applications as against the respondent employer have no reasonable prospect of success. It is clear that the issues in dispute in this case are with respect to the applicant’s performance as a teacher and that the applicant has no reasonable prospective of successfully proving, based on the evidence he relies on, that he was treated by the respondent employer in a manner contrary to the Code.

Return of school property

49At the conclusion of the hearing the respondent employer requested that the Tribunal order the applicant to return to the Board documents that are in his possession that identify confidential student information which was filed with the Tribunal.

50In Felix v. Shoppers Drug Mart, 2010 HRTO 2179, the respondent sought orders prohibiting the applicant from communicating directly with or harassing any employees of the respondent and an order prohibiting the respondent from attending at any locations of the respondent. After reviewing its powers under the Statutory Powers Procedure Act, and the Tribunal’s Rules, the Tribunal concluded at paragraph 14:

The Tribunal has the power to make orders controlling the abuse of its process and ensuring that the Tribunal process is free from abusive comments by any participant. However, the broad orders requested by the respondent that the applicant not communicate with SDM employees and not attend at SDM premises go beyond the Tribunal’s role in controlling its own process and relate to the general interaction between the parties. The Tribunal does not have general injunctive powers. Accordingly, I decline to make the first two orders requested by the respondent.

51I find that the order sought by the respondent employer is in the nature of injunctive relief and goes beyond the Tribunal’s mandate. This is especially so in this case since all of the Applications against the respondents have been dismissed. In these circumstances, the Tribunal declines to make the order sought by the respondent employer.

Order

52All of the Applications are dismissed.

Dated at Toronto, this 22nd day of February, 2012.

”signed by”_____________

Geneviève Debané

Vice-chair