Bruce v. Greater Essex County District School Board, 2012 HRTO 66

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kenneth Bruce

Applicant

-and-

Greater Essex County District School Board and Robert Colak

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: January 12, 2012

Citation: 2012 HRTO 66

Indexed as: Bruce v. Greater Essex County District School Board

1The applicant filed an Application on March 19, 2009 (the “s.34 Application”), under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). It alleges reprisal contrary to the Code on the basis of incidents in February 2009, which were related to Applications he previously filed in 2008 (the “2008 Applications”), alleging discrimination in employment. This Decision deals with a Request that this Application be dismissed because it has no reasonable prospect of success. A summary hearing was held pursuant to Rule 19.1 of the Tribunal’s Rules of Procedure by teleconference.

Background

2The applicant has been in an ongoing dispute with the Greater Essex County District School Board respondent (“the respondent Board”) since 2003. The applicant filed an application pursuant to section 53(3) of the Code in 2008 (the 2008 Application) alleging discrimination in employment on the basis of sex, by the respondent Board, as well as one individual, who plays a small part in what follows. During the course of the 2008 Application, it became necessary for the applicant to deliver the 2008 Application to the individual respondent. The respondent Board, pursuant to a direction from the Tribunal, advised that the individual respondent in the 2008 Application could be found at one of its schools – Western Secondary School.

3The s.34 Application alleges that when the applicant and his representative attended at Western Secondary School to deliver the 2008 Application to the individual respondent, the envelope containing the material was not accepted by school staff who said that the individual to whom it was addressed was not there. It is agreed that the applicant and his representative did not identify themselves and did not say what was in the envelope. The applicant also alleges that subsequent to the attempt to deliver the materials, Mr. Colak, the principal of Western Secondary School, executed a “trespass letter” and "had delivered, by Sgt. Paul Smith of the Amherstburg Police Service, a letter dated February 2, 2009." The applicant alleges that this trespass letter was a reprisal under the Code - for his having started or taken part in a human rights proceeding - the 2008 Application. The trespass letter is signed by Mr. Colak, the principal of Western Secondary School, and advises the applicant that he was no longer permitted on the School’s property. The applicant further alleges that Sergeant Smith, while at the applicant’s home, called the applicant at work to warn him not to return to the school, and not to contact the school or the teacher who was the personal respondent in the 2008 Application.

4Section 8 of the Code provides as follows:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

5In order to succeed in a claim of reprisal under the Code, the applicant would have to establish that the respondent did something with the intention of retaliating against him for claiming or enforcing his rights under the Code; instituting or participating in proceedings under the Code; or refusing to infringe another person’s rights under the Code: Noble v. York University, 2010 HRTO 878.

6The parties provided detailed written submissions in advance of the summary hearing at which time I heard their oral submissions which covered much, if not all, of the same ground. Although little in the way of further particulars was provided at the hearing, the applicant clarified his position that he was relying on essentially four broad allegations, each of which constituted a reprisal in his view. These are as follows:

a. the refusal to accept, and the return of, the envelope containing the Application the applicant was attempting to deliver to an individual respondent in another Tribunal proceeding;

b. the issuance of a trespass letter by Mr. Colak;

c. the delivery of that trespass letter by the police officer; and,

d. the utterances of the police officer when delivering the trespass letter.

ANALYSIS AND FINDINGS

7The nature of a summary hearing and the test to be met by the applicant were set out in 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.

8The Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. In this case the applicant must point to evidence that is reasonably available to him that could establish on a balance of probabilities that the respondents in conducting themselves as they did intended to reprise against him for his seeking to enforce his rights under the Code in the 2008 Application.

9I find that the allegations of reprisal in paragraphs 6(a), (c) and (d) have no reasonable prospect of success. I am not prepared to conclude at this stage that the allegation in paragraph 6(b) has no reasonable prospect of success. My reasons for this conclusion follow.

10With respect to the allegation concerning the refusal of school staff to accept the envelope from the applicant and his representative, I find that the applicant has not pointed to any evidence that he has or which is reasonably available to him to establish that school staff had any reason to know that the applicant was an applicant in a human rights proceeding or that he was attempting to deliver documents to an identified respondent pursuant to a direction from the Tribunal to deliver documents to her. In the absence of any such evidence, there is no reasonable prospect that the applicant can prove that the respondent Board or any of its employees did any of these things with the intention of retaliating against the applicant for claiming or enforcing his rights under the Code; or, instituting or participating in proceedings under the Code. Accordingly, this aspect of the Application, as set out above in paragraph 6(a) must be dismissed.

11As regards the allegations of what the police officer did in delivering the trespass letter, the applicant states that the police officer was acting as an agent of the respondent Board and therefore, the respondent Board is responsible for the police action. I find that the applicant was unable to point to any evidence that he has or is reasonably available to him to establish that there was an agency relationship between the respondent Board and the police officer, including the manner in which they chose to deliver the trespass letter in the course of what is described by the police as an investigation. Neither the Ahmherstburg Police Service nor the identified police officer are parties to this Application. I find for these reasons that these aspects of the Application, as identified above in paragraphs 6(c), and (d), have no reasonable prospect of success and should be dismissed.

12The remaining allegation is that the respondent Board, by its employee Mr. Colak, issued a trespass letter in reprisal for the applicant having filed an application against the Board and/or one of the teachers in Mr. Colak’s school. The applicant has no direct evidence that would establish that the respondent Board intended to reprise against him. However, the applicant states that an inference can be drawn from all of the surrounding circumstances that the letter was issued in part for this purpose. The respondent disagrees and offers a non-discriminatory explanation for Mr. Colak’s action in issuing the trespass letter.

13At this stage, it is not appropriate to make any findings with respect to the applicant’s allegations. It is sufficient to say at this point that the applicant has satisfied me that he may be able to establish a link between the events alleged to have occurred and his claim of reprisal. Therefore, I cannot find that there is no reasonable prospect that this aspect of the Application will succeed. The Application is not dismissed and will continue in the Tribunal process.

14The Registrar will schedule a one day hearing to hear the remaining merits of this Application.

15I am not seized.