Khatkur v. Peel District School Board, 2012 HRTO 472

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ranjit Khatkur Applicant

-and-

Peel District School Board, Scott Moreash and Stacy Wilson Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: March 6, 2012

Citation: 2012 HRTO 472

Indexed as: Khatkur v. Peel District School Board

APPEARANCES:

Ranjit Khatkur, Applicant ) Dijana Simonovic and ) Richard Miller, Counsel

Peel District School Board, ) Scott Moreash and Stacy Wilson, ) Roy Filion, Counsel Respondents )

1This is an Application filed on July 24, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). Mediation of the Application in September 2010 and following did not result in a settlement and the parties agreed to schedule a preliminary hearing to provide submissions on several requests made by the respondents. This Interim Decision addresses those requests.

2Although the respondents had raised an issue under section 45.1 of the Code in their Response, it was not pursued at the preliminary hearing and it is not necessary for me to deal with it here.

3The applicant was self-represented at the time she filed her Application and it was difficult to understand from a reading of her narrative the precise nature of some of the allegations. I directed her to provide a written statement of particulars prior to the preliminary hearing, which has done through counsel, and my description of the allegations is thus based on the Application as clarified through the additional particulars.

BACKGROUND

4The 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.

5The applicant has been a Vice-Principal since September 1998. The applicant states that the promotional process at the Board requires that a Vice-Principal wishing to apply for a Principal position fulfill three steps before being able to make an application for such a position: 1) he or she must obtain experience at two schools as a Vice-Principal, 2) obtain the support of the Principal and/or the Superintendent responsible for their current school, and 3) undergo a performance evaluation. The applicant states that her inability to obtain the support of a Principal or Superintendent has precluded her from making an application for any position as a Principal. Her inability to obtain this support is linked to her race as well as her activities in support of racialized groups. She alleges that it is also a “by-product of broader systemic barriers preventing racialized staff from achieving administrative roles” within the Board.

6The central allegation in this Application is therefore that the applicant was prevented from proceeding through the promotion process because of discriminatory refusals by Principals or Superintendents to give her the necessary support.

7In her particulars, she alleges that in 2000, her then Principal discouraged her from requesting a transfer to another school in order to gain the second school experience required for the Principal promotion process, and that she was treated differently from non-racialized colleagues in this regard. She alleges that in 2002, upon her transfer to a new school, the Principal at the new school (Allison Clinton) refused to mentor and support her for the Principal promotion process when asked to do so. She alleges that the Principal that followed Allison Clinton in January 2003, Cindy Horvath, also did not support her candidacy to be promoted to Principal.

8The applicant states that in 2004, she requested that she be given “exceptional case status” and allowed to go through the Principal process. Her request was denied and she was advised by the Board’s Human Resources Superintendent that the Board would ensure that the Principal of any school at which she was placed was aware of her interest for promotion and provide her with mentoring. The applicant states that she never received this promised support.

9In June 2004, the applicant filed an internal human rights complaint against Principals Clinton and Horvath through the Board’s internal process, alleging discrimination on the grounds of race and colour, commencing in May 2002. Many of the incidents documented in her complaint are also part of this Application. Among other things, the complaint of June 2004 refers to the lack of support from these Principals for her promotion. The applicant withdrew this complaint on July 19, 2004, which she states was as a result of being advised that it was a late complaint against one individual and would not be investigated and as well, because the other individual was ill. The applicant was advised that she could file a complaint with the Ontario Human Rights Commission about these matters, and did not.

10The applicant went on a pre-arranged self-funded leave for the school year 2004-2005, returning as a Vice-Principal in a new school in September 2005.

11Before the applicant returned from leave, there was an incident which resulted in a letter of reprimand to her in July 2005, which she believes was a reprisal for having filed the internal human rights complaint.

12The applicant alleges that in 2005-6, the Superintendent responsible for the school in which she was placed denied her request for support to enter the Principal promotion process. She also alleges that the Principal at her school, Robin Bradley, failed to support her, including delaying her performance evaluation, in contrast to the situation of a white Vice-Principal colleague, Lawrence De Maeyer.

13Principal Bradley was succeeded by a new Principal in the 2008-2009 school year and the applicant alleges that the new Principal, Stacy Wilson, also failed to support her in the promotion process, for discriminatory reasons.

14The applicant went on a medical leave as of December 2008.

15The above is a summary of the essential allegations but the Application provides a detailed and lengthy narrative describing events over many years which are said to relate to the discriminatory failure to promote the applicant. For instance, it refers to a specific Principal’s disapproval of the applicant’s involvement in a South Asian student mentorship program sometime before 2002, to having been told by the same Principal in 2003 that she was unprofessional in her dealings with another Principal, to having been excluded from a staff development event in the school year 2003-4 and an event to say farewell to a Principal, and to having an unfavourable office location. These incidents were referred to in the internal human rights complaint made by the applicant in June 2004. The applicant also refers to a number of events following her return from leave in September 2005, including a Principal’s lack of support for her activities in connection with South Asian Heritage Month, frivolous concerns being raised with her about her work as Vice-Principal, an unjustified reprimand for leaving the school to attend a conference planning meeting, and an unjustified reprimand for a comment she made in presenting an award to an Indian student.

DELAY

16The respondents request that the allegations about events before July 2004 be dismissed, on the basis that they are untimely. They state that although it is arguable that allegations about subsequent events are also untimely, they are prepared to answer them on their merits.

17The applicant’s position is that the Tribunal can and should make findings of liability and award a remedy regarding the alleged discriminatory events which occurred beginning in 1998, when the applicant first became a Vice-Principal at the Board, up until December 2008 when the applicant went on a sick leave. The applicant states that incidents and events which predate July 2004 are part of a series of incidents within the meaning of section 34(1). She asserts that from 1998 until 2004 and continuing into 2008 when she went on sick leave, she was unable to obtain a recommendation from her Principal or Superintendent in order to proceed into the Principal promotion process.

18The applicant also states that events prior to 1998 can also be considered as context for the events between 1998 and 2008.

19In the alternative, the applicant states that even if she cannot claim a remedy for alleged discrimination before July 2004, she should be permitted to rely on those events as relevant evidence in helping the Tribunal understand whether the incidents which happened after that date were discriminatory.

Series of incidents

20In Keith v. College of Physicians and Surgeons of Ontario, 2010 HRTO 2310, the Tribunal stated that “there must be something about the alleged discriminatory events that makes it just and appropriate for the Tribunal to view them as a series of incidents, with the result of hearing allegations about events that otherwise fall beyond the Code’s time limit.” (para. 48) The Tribunal suggested that it may be fair to view events over time as a series of incidents where they appear to be part of a pattern of conduct, where it is necessary for the Tribunal to inquire into the allegations of discrimination which are otherwise untimely in order to fully understand the nature of the applicant’s claims of discrimination, or where it can be said that the subsequent and timely acts of alleged discrimination shed new light on previous actions that were not seen as discriminatory at the time.

21I find that the allegations of discrimination pre-dating July 2004 are not part of a “series of incidents” which continued into 2008, within the meaning of the Code. There are several factors here which lead me to that conclusion:

• The applicant made a claim about a discriminatory failure to support her promotion by two Principals in 2004, as well as about other alleged incidents of discrimination. She decided to withdraw that complaint, was advised that she could file a complaint with the Ontario Human Rights Commission, and decided not to pursue it. This is thus not a case where subsequent and timely acts of alleged discrimination shed new light on previous actions that were not seen as discriminatory at the time.
• The allegations involve the actions of individual Principals and Superintendents over time, involving the exercise of individual decision-making and discretion. Given this, it is hard to view them as a “pattern of conduct”, simply because all the individuals are employed by the Board. The applicant asserts, however, that the failure to support her was also based on a broader culture at the Board which disadvantaged individuals of her race. Even given this allegation, it is unnecessary to inquire into the untimely allegations, in order to evaluate and make findings about the timely ones. If such broader factors play a role in the decision-making by individuals within the Board, there is no reason this cannot be explored adequately through hearing the evidence about the timely allegations of discrimination.

22The applicant submits that the Tribunal should not encourage applicants in similar circumstances to file premature applications by taking a narrow view of a “series of incidents”. I agree with this. Nor, however, would it be fair for the Tribunal to apply section 34(1) to encourage expansive litigation about an accumulation of events over many years without good reason.

23I therefore find that the allegations about events before July 2004 are untimely and cannot proceed. I find that she could have made a complaint about those events at the time, and did not. There is some suggestion that the applicant chose not to because she believed that things would improve, although this is at odds with the fact she believed herself to be subjected to a reprisal in June 2005. In any event, apart from making the argument that she views the entirety of the events as a series of incidents, she does not provide an explanation for why she could not have filed her claim about pre-July 2004 events until this Application in July 2009.

24The applicant has submitted that even if the Tribunal finds the allegations that pre-date July 2004 to be untimely, it should nevertheless hear evidence about those events to provide context for her claim of discrimination following that date.

25I do not preclude the possibility that evidence about an event before July 2004 may be necessary background for the evidence about a specific incident following that date. To some extent, this will be a matter that can be addressed during the course of the evidence. Where broader contextual evidence does not have a specific linkage to a timely allegation, I make a proposal below about how the Tribunal will deal with that evidence.

CLAIMS OF SYSTEMIC DISCRIMINATION

26The respondent asks that the applicant’s claims of “systemic discrimination” be dismissed because no prima facie case has been established on the pleadings. In Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025, the Tribunal discussed its approach to considering such a request, referring to the following discussion in Jagait v. IN TECH Risk Management, 2009 HRTO 779:

[18] The onus is on the applicant to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant's favour in the absence of an answer from the respondent: see Ontario Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC), at para. 28. Upon establishing a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that its actions were not discriminatory.

[19] It is well-established that the threshold for establishing a prima facie case of discrimination is not high, discrimination is often not overt, the employer may have knowledge of facts or possess evidence of discrimination that is not accessible to an employee whose employment is terminated, and that in many, if not most, cases the burden will shift to the respondent to provide a non-discriminatory reason for its actions. On the other hand, where the applicant has failed to establish a prima facie case, it is neither legally correct nor, in my view, fair, just and expeditious to shift the burden to the respondent to provide a non-discriminatory reason for its actions. [emphasis added]

27In Jagait, the Tribunal considered whether to dismiss the Application after hearing testimony from the applicant. In other cases, as with Arias, the Tribunal may consider the question at a preliminary stage, before the applicant has presented evidence, and in such a case, it will be sufficient if the applicant raises allegations that, if accepted to be true, would be enough to establish a violation of the Code.

28Since Arias and Jagait, the Tribunal’s Rules have been amended to provide for summary hearings. Where the Tribunal directs a summary hearing, the issue is whether an application should be dismissed on the basis that there is no reasonable prospect that the Application will succeed: see Rule 19A. In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal described the issues in a summary hearing as follows:

[8] 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.

[9] 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.

29Clearly, the analysis described in Arias and Jagait overlaps with that discussed in Dabic. In the case before me, there is no difference between my assessment of whether any part of this Application should be dismissed because it fails to set out a prima facie case of systemic discrimination, and my assessment of whether any part should be dismissed because there is no reasonable prospect of success. I am being asked to consider whether the applicant has raised allegations that, if accepted to be true, would be a sufficient basis for a finding of a violation of the Code. The respondents’ essential submission is that the applicant’s allegations establish no causal connection between the promotion process at the Board and the alleged underrepresentation of South Asians and members of other racialized minorities, including herself.

30Given the recent amendments to the Tribunal’s processes and the many subsequent decisions in which the Tribunal has applied the analysis in Dabic, above, I will consider the respondents’ request within the framework of “reasonable prospect of success.”

31The Application refers to systemic discrimination throughout. From a reading of it, it was difficult to discern the purpose of some of these allegations, and whether they were intended to support the applicant’s claim of a discriminatory failure to promote, or whether they were intended to advance a claim of discrimination based on the experiences of other individuals. Also, some of the specific conduct alleged to be discriminatory was not always apparent. I thus directed the applicant to answer some specific questions in order to clarify her allegations.

32As clarified in the applicant’s written submissions, the “systemic claim” consists of three components:

• The claim that the Board’s rule requiring a Vice-Principal to get the recommendation of a Principal or Superintendent prior to being able to apply for a Principal position is discriminatory in that it has resulted in gross under-representation of South Asians and other racialized minorities in the Principal positions within the Board.
• The Board has been aware of an institutional problem with the promotional process since 2001 and yet took no action and the problem and the underrepresentation still remain.
• There is an organizational culture within the Board which does not support equity and anti-oppression work of staff and students, which makes it difficult for South Asians and other racialized minorities to succeed relative to their white colleagues.

33The applicant’s submissions refer to parts of her Application that support the above assertions. For example, the applicant states that there are currently approximately 5 South Asian Principals in the Board, while the South Asian community makes up 25% of the population in the Peel Region. She states that secondary Vice-Principals of racialized minorities are disproportionately represented at the top of the Vice-Principal seniority list, that is, they do not move into Principal positions. The applicant submits that these facts constitute strong circumstantial evidence of the existence of inequitable practices.

34It is the applicant’s intention to call evidence about the potential for “informal processes” to result in discrimination against persons who do not share the same ethnicity as those in charge of decision-making. She states that it is her intention to call evidence showing that racialized staff were excluded from informal, white networks at the Board, that there was no mentorship program, support programs or capacity building in the Board for staff of racialized minorities, while mentorship for white colleagues was forthcoming in bars, cottages and homes.

35The applicant intends to call evidence about how the culture at the Board did not support equity and anti-oppression work of staff and students, and that such activities by her were undervalued and not considered to be “leadership worthy”.

36With respect to the second claim above, the applicant states that the Board produced a report in 2001 of focus group discussions in which staff expressed dissatisfaction with the fairness of the promotions process and the fact that it took no action is evidence of an organizational culture that is unconcerned with systemic barriers within the organization.

37In general, the applicant indicates that she intends to call witnesses to speak to their own experiences of being excluded from informal social networks, and of not being supported in equity and anti-oppression work. She states that this evidence relates to patterns of behaviour, policies or practices that formed part of the social and administrative structure at the Board that created or perpetuated a position of relative disadvantage for racialized persons, which in turn had the effect of preventing her from moving forward in the promotion process.

38It is important to note that what is before me is an individual claim of discrimination under section 34(1), and at its heart the allegation that the reason the applicant never had the opportunity to advance was because she could not obtain the support of a Principal/Superintendent. This is not a claim of systemic discrimination of the type that may be brought by the Commission under section 35 of the Code. The applicant may not advance a claim of systemic discrimination independent of a claim that her own rights have been violated: see Carasco v. University of Windsor, 2012 HRTO 195.

39Having regard to the above, it seems to me that none of the three components of the applicant’s “systemic claim” can proceed independently of the applicant’s allegations of discrimination against herself. Viewed in this light, the “systemic claims” consist of either the contextual evidence which the applicant believes supports her individual claim of discrimination or, with respect to the promotions process, a claim under section 11 of the Code (constructive discrimination).

40Having considered the submissions of the parties, I find it premature to dismiss any part of the Application at this stage. To be clear, I am not dismissing the applicant’s “systemic claims” because I find that they are not “claims” in themselves, but rather, descriptions of the contextual evidence that the applicant will rely on to establish a violation of her own rights under the Code. As such, a determination of whether that evidence is necessary or relevant will come later in the process and not at this preliminary stage. I acknowledge the respondents’ concern that there is some lack of particularity in some of the applicant’s assertions about this contextual evidence, but that is also a matter that can be dealt with during the course of preparation for the hearing, through documentary disclosure and witness statements.

41There is one aspect of the applicant’s “systemic claims” that I will treat as an allegation in itself, and that is her contention that the requirement to obtain support from a Principal or Superintendent as part of the promotion process amounts to constructive discrimination under section 11 of the Code. The applicant alleges that this requirement is a “requirement, qualification or factor” that results in the “exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination” and of whom she is a member within the meaning of that section. I also do not find it appropriate to dismiss this allegation at this stage of the process. The cases the respondents have referred to, such as Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 and McGill University Health Centre, 2007 SCC 4, [2007] S.C.J. No. 4, must be applied with caution here. The analysis in those cases was conducted after the conclusion of the hearing, based on all the evidence, and as part of assessing whether the onus has shifted to a respondent to justify discrimination. Here, I am being asked to dismiss part of the case without having heard any evidence.

42Having considered the material before me, including the submissions of the parties, I cannot conclude that there is no reasonable prospect that the applicant can establish that the Board’s promotion process violates her rights under section 11 of the Code. She has asserted that the process of promoting Principals is discriminatory because it allows for subjective criteria to be applied in selecting which candidates to support, resulting in disadvantage to individuals who do not share the same race (using this term to include all the grounds cited by the applicant) as the decision-makers. She relies on her own experience of being denied support by several Principals and Superintendents, which she attributes to factors related to her race. She also relies on her understanding of the disproportionately few South Asians in the position of Principal. It cannot be said that, if all these elements of her case are proven, she would be unable to establish a violation of her rights under sections 5 and/or 11 of the Code.

43Having decided not to dismiss any of the allegations at this early stage I am, however sympathetic to the respondents’ concern, expressed through its oral submissions, about the potential prejudice of having to prepare to respond to a very broad scope of evidence without any assessment of the relevance and necessity for this evidence.

44In a recent decision involving the search for a new Dean at the Faculty of Law, University of Windsor, the Tribunal directed bifurcation of the hearing between liability and remedial issues, and between the evidence relating to the decanal search and evidence relating to allegations of systemic discrimination. I propose to follow a similar structure in this hearing.

45In that decision, Carasco v. University of Windsor, 2011 HRTO 1931, the Tribunal referred to the following comments from in DeFreitas v. OPSEU, 2010 HRTO 618:

… there is always a tension between focussing on evidence that is directly related to the allegations at issue and the scope of relevant evidence regarding the broader institutional context in which these events took place. The danger inherent in simply opening the hearing room doors to hear a broad range of such contextual evidence is that it may cause the hearing to become sidetracked by collateral issues as the respondents necessarily have the right to call evidence to rebut the broader contextual evidence that the applicant seeks to adduce. …

I do not agree that simply bifurcating the hearing of the evidence to first hear all evidence directly relevant to the applicant’s individual allegations prior to hearing any evidence regarding the broader institutional context would result in the individual evidence taking on a different form. The evidence is the evidence and will be received in the same form whether I first hear evidence regarding the individual allegations or whether I hear all evidence at the same time. …. In my view, hearing this individual evidence first will serve to provide me with a better framework to assess the potential relevance of and necessity for the broader institutional evidence. [paras. 13-14]

46In this case, I propose as well that the Tribunal hear the evidence in two phases. The first phase would include the evidence about the applicant’s efforts to obtain the support of Principals and Superintendents from September 2005, when she returned to teaching after her leave, to 2008, and her allegation that the failure or refusal by those individuals to support her promotion was discriminatory. The evidence about whether the applicant’s race, ethnic origin, place of origin or creed were factors in the failure to obtain that support would include whether the applicant is as qualified or more qualified than non-racialized Vice-Principals who have gone on to become Principal during this time, as alleged, whether her qualifications, experience and “additionalities” as a South Asian woman were overlooked for discriminatory reasons, and whether her association with “racialized/minoritized and/or equity seeking groups” was also overlooked for discriminatory reasons. This would also include evidence about the alleged difference in treatment between herself and Lawrence De Maeyer, a white Vice-principal, and evidence in support of the applicant’s contention that the informal social networks within the Board resulted in a discriminatory disadvantage to her in obtaining the support necessary for her promotion.

47To be clear, the first phase of the hearing would be devoted to the decisions by the named Principals and Superintendents not to support the applicant’s candidacy for Principal and the evidence relevant to the applicant’s contention that her race and association with others were factors in the failure to provide that support.

48In the first phase, I also propose that the Tribunal hear evidence about the disciplinary letter of June 2005, said to be a reprisal against the applicant for the filing of the internal human rights complaint.

49After hearing this evidence, I propose that the Tribunal receive submissions from the parties on the relevance and necessity for the broader contextual evidence that the applicant wishes to introduce.

50In DeFreitas, the Tribunal made its procedural direction set out above after receiving detailed witness statements. In Carasco, the direction was made at an earlier stage of the proceedings, and the Tribunal also bifurcated the requirements to disclose and produce documents, witness lists and witness statements pursuant to the Rules of Procedure, stating that it would consider the timing and process for disclosure of systemic evidence at a later point: see para. 17. I propose to adopt the same process here.

51Finally, I also propose to bifurcate the hearing between the issues of liability and remedy.

52I therefore direct the applicant and the respondents to provide their submissions on the proposed manner of hearing the evidence, within two weeks of this Interim Decision, following which the Tribunal will issue further directions.

53I am not seized of this matter.