HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Stephanie Lanoue
Applicant
-and-
Peel District School Board and Jane Tindall
Respondents
DECISION
Adjudicator: Leslie Reaume
Indexed as: Lanoue v. Peel District School Board
Appearances
Stephanie Lanoue, Applicant ) Self-represented )
Peel District School Board ) Roy Filion, Counsel and Jane Tindall. Respondents )
INTRODUCTION
1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) alleging discrimination on the basis of race, colour, ancestry, ethnic origin, disability, and age.
2By Case Assessment Direction dated July 8, 2011, the Tribunal, on its own initiative, directed that the matter be scheduled for a Summary Hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure. The applicant was directed to address two issues: the timeliness of some of the allegations; and the link between the alleged actions of the respondents and a ground under the Code.
ANALYSIS
Summary Hearings
3The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure. The issue in a summary hearing is whether the Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.
4In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8-10, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:
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.
In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.
5As the Tribunal noted in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17:
The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one’s Code rights.
6With respect to the issues of timeliness, sections 34 (1) and (2) of the Code read as follows:
(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.
7Pursuant to s. 34(1)(b) of the Code, an application is considered timely if it is made within one year following the last incident in a “series of incidents’. Accordingly, if earlier allegations raised in a new application can be regarded as forming a “series of incidents” that extends to and includes the timely allegations, then the entire application would be regarded as timely within the meaning of s. 34(1)(b) of the Code.
8In Baisa v. Skills for Change, 2010 HRTO 162 at para 22, the Tribunal stated that “in order to constitute a “series of incidents” within the meaning of s. 34(1) of the Code, there must at least be some connection or nexus between the incidents that are alleged to form the series, and a series cannot be comprised of incidents relating to discrete and separate issues.”
Timeliness
9The applicant was employed as a teacher with the respondent Peel District School Board. She alleges discrimination in relation to events which began in March 2008. She alleges that those events resulted in her decision to retire effective October 21, 2009. Approximately six months after her retirement, the applicant attempted to secure a recommendation for the Occasional Teacher List from the personal respondent, Ms. Tindall. The personal respondent was the principal of the school where the applicant last worked before her retirement. She refused to provide the reference and the applicant attributes this decision to discrimination.
10The Application is dated February 2, 2011. The respondents argue that, at best, the applicant had until one year from the date of her retirement to file an application with the Tribunal with respect to the events preceding her retirement. The respondents further argue that although the allegations related to the post-retirement request for a recommendation are technically within time, they should be dismissed on the basis that there is no reasonable prospect of success.
11The allegations which go back to March 2008 relate to the applicant’s return to work from hip surgery. The applicant connects a series of pre-retirement incidents with the post-retirement request for a recommendation from the personal respondent and argues that together her allegations constitute a “series of events” for the purpose of determining the limitation period.
12I have summarized the applicant’s allegations here and in the following paragraphs:
a. There was a dispute with the personal respondent about the day on which the applicant would return to work from leave in March 2008. The personal respondent “rebuked” her for being late on her first day back to work;
b. The applicant called in unable to attend school because of inclement weather. The personal respondent told her that she personally makes the decision whether someone is paid for the day in those circumstances, which the applicant interpreted as a threat;
c. The applicant generally found the personal respondent unsupportive, for example, when she needed extra staff members to help with difficult students it was not forthcoming;
d. When the applicant was sent the choice of classroom placement for September 2008 she made three choices, none of which involved special needs children. She was then assigned the role of Special Needs Behavioural Teacher rather than her first preference which was to teach kindergarten;
e. On the fourth day of the school year in September 2008, the personal respondent asked to see the applicant’s lesson plans and expressed dissatisfaction with her;
f. A child ran away early in September and the applicant found this extremely upsetting;
g. On September 16, 2008 the applicant told the personal respondent that she was concerned about her assignment because she was returning from double hip replacement surgery and some of the children she was teaching were violent; and
h. There was a dispute about the applicant going to the dentist on the same day as a staff meeting.
13The applicant spoke with her union representative and her doctor, and was off work from Sept 19, 2008 until October 10, 2008. She was then on long-term disability and not scheduled to return until September 2009. The applicant engaged her union representative to assist her in planning a return to work in accordance with her new restrictions (three days teaching per week). The applicant also requested a transfer to another school.
14It appears that the requests for a three-day work week and a transfer were initially refused by the Superintendent, who then asked to meet with the applicant and her union representative to work out an accommodation plan. A meeting took place after which the applicant returned to work three days her first week of teaching and then inquired about her request for a transfer. She was advised to give the Superintendent a list of schools where she would prefer to teach. For reasons she did not explain, the applicant found this request unusual. She states in her Application, “I later realized that my request for a reduced contract and/or transfer was not going to be granted” and that she felt that it was in her best interests to resign. The applicant’s retirement was effective October 21, 2009.
15In November 2009 the applicant started volunteering at another school. In January 2010 she discussed the possibility of supply teaching with the principal of that school and was informed that she needed to complete some forms and undergo a criminal record check. In April 2010 she inquired about the status of her application for supply teaching and was told that she needed a recommendation from her former principal, the personal respondent.
16On April 22, 2010 the applicant met with the personal respondent who told her she would not provide the recommendation for the following reasons:
a. she never had the opportunity to assess me;
b. she didn’t think I had good classroom management;
c. my lesson plans were unacceptable and inadequate;
d. the Board is utilizing the services of supply teachers regularly because of teachers receiving time off for special training;
e. if I was a supply teacher I could teach ANYWHERE;
f. no evidence of guided reading.
17The applicant sets out the following statements in her Application: “from my observation, she seemed quite pleased that she had the opportunity to humiliate me and control whether I worked as a supply teacher with Peel or any other Board ANYWHERE for that matter” and “I was very upset and saw this as the intimidation, degradation and humiliation I was forced to endure when I worked with her in March 2008 – June 2008 and September 2009.” The applicant concludes her narrative with the statement that felt she was discriminated against by the principal and feels that one of the reasons could be related to the colour of her skin.
18The applicant states that she chose to retire in part as a consequence of the discrimination she alleges she experienced. I accept that the applicant perceives a connection between her past experiences with the personal respondent and the post-retirement allegations. But that perception is based on the assumption that the personal respondent engaged in discrimination against the applicant in the past. Those past allegations were not the subject of a timely application to the Tribunal and, in my view, it would be inappropriate to permit the new allegations to breathe new life into the past allegations. I find that they do not form part of a series of events for the purposes of section 34.1(b).
19The applicant also sought to extend the time limit for filing her Application by establishing that the delay was incurred in good faith. In Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, the Tribunal found that the applicant must provide a reasonable explanation for why she did not pursue her Code rights in a timely manner to establish good faith.
20The applicant did not pursue her pre-retirement allegations within one year of March 2008 or the date of her retirement. The applicant indicated that she was aware of her rights but feared reprisal for raising human rights allegations while she was employed. The applicant argued that she did not file after her retirement because she also feared reprisal in relation to her desire to continue teaching post-retirement.
21The interference with the applicant’s ability to teach post-retirement is alleged to have occurred in April, 2010 when she met with the personal respondent: six months before the expiry of the one-year anniversary of her retirement. The explanation that she feared reprisal does not explain why the applicant let the anniversary of her retirement pass without filing an application. When the recommendation was refused, the applicant effectively had nothing further to lose.
22I find that the delay was not incurred in good faith due to the absence of a reasonable explanation. As a result, it is not necessary for me to consider the issue of prejudice. I find, therefore, that the allegations leading up to and including the applicant’s retirement are barred by section 34(1) and 34(2) of the Code.
No Reasonable Prospect of Success
23With respect to the remaining allegation about the refusal to provide a recommendation, the question is whether the applicant has raised a sufficient connection between her experience and the prohibited grounds cited in her Application to permit her Application to proceed.
24The applicant alleges that the personal respondent failed to provide her with a reference because of discrimination against her on the basis of race, colour, ancestry, ethnic origin, disability, and age. The applicant explained that her perceptions of the personal respondent are based on the history of their interactions before the applicant retired.
25In March 2008 the applicant developed a perception that she was being treated unfairly by the personal respondent. As I stated above, those allegations included relatively minor disputes over her attendance (for which there is no evidence she was penalized) and the belief that the personal respondent was generally unsupportive. In the period leading up to September 2008 the applicant perceived that she continued to be treated unfairly by the personal respondent because she received a teaching assignment she felt was unsuitable and the personal respondent criticized her lesson plans. By mid-September 2008 the applicant was on leave and did not return until the following school year. In September 2009 there was an accommodation dialogue in progress with the Superintendent when the applicant chose to resign.
26While she argues that she was singled out by the personal respondent as the only black teacher in the school, the applicant is unable to point to evidence, beyond her own speculation, which is available or would be reasonably available to her to establish a link between the refusal to provide her with a recommendation and her race, colour, ancestry, ethnic origin, disability, and age. At the conclusion of the Summary Hearing the applicant was unable to establish more than the speculation contained in the narrative of her complaint that her experiences could be related to the colour of her skin.
27The Tribunal has long accepted that is often difficult to establish direct evidence given the subtle and nuanced ways in which racial discrimination manifests in our culture. The Tribunal is often called upon to draw reasonable inferences from circumstantial evidence which establishes that race is more likely than not one of the factors associated with the conduct in question. In Phipps vs. Toronto Police Services Board, 2009 HRTO 1604 (“Phipps”), for example, the Tribunal drew the inference of racial discrimination from evidence that Mr. Phipps, who was a black man dressed in his postal uniform, delivering mail door to door, nevertheless aroused the suspicions of a police officer who thought it possible that Mr. Phipps might be wearing the postal uniform as a ruse. Even after speaking with Mr. Phipps himself, and also with a neighbour as well as conducting a criminal records check, none of which raised any concerns, the officer continued his investigation of Mr. Phipps by inquiring about him with a white letter carrier.
28The facts in the Phipps case are not the only kinds of facts which give rise to an inference of discrimination. However, the Phipps case demonstrates the necessity to look beyond the mere speculation of the applicant to the surrounding circumstances of the respondent’s actions. In this case, the applicant is unable to point to any evidence which would be reasonably available to her which would enable the Tribunal to draw the inferences necessary to make a finding of discrimination. The applicant relies on her speculation that the refusal to provide a recommendation was based not on the explanations provided to her by the personal respondent at the time of the refusal, but on her race, colour, ancestry, ethnic origin, disability, and age.
29Accordingly, the allegation relating to the refusal to provide a recommendation is dismissed on the basis of my finding that there is no reasonable prospect of success. The Application is therefore dismissed in its entirety.
Dated at Toronto, this 16th day of April, 2012.
”signed by”______________
Leslie Reaume
Vice-chair