Khatkur v. Peel District School Board, 2012 HRTO 772

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: April 17, 2012

Citation: 2012 HRTO 772

Indexed as: Khatkur v. Peel District School Board

WRITTEN SUBMISSIONS

Ranjit Khatkur, Applicant ) Richard Miller, Counsel

Peel District School Board, Scott ) Roy Filion, Counsel

Moreash and Stacy Wilson, Respondents )

1In a previous Interim Decision in this matter, 2012 HRTO 472, I proposed that the Tribunal hear the evidence in this Application in two phases. I also proposed to bifurcate the requirements to disclose and produce documents, witness lists and witness statements pursuant to the Rules of Procedure, as well as bifurcate the hearing between the issues of liability and remedy.

2I directed the applicant and respondents to provide their submissions on the proposed manner of proceeding.

3The respondent agrees generally with the Tribunal’s proposal. The applicant agrees with some aspects, but objects to other aspects.

ALLEGATION OF CONTRUCTIVE DISCRIMINATION

4As described in the Interim Decision, the applicant alleges 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 submits that the Tribunal should hear evidence concerning this allegation as part of the first phase of the hearing.

5She submits that part of the evidence with respect to this allegation should be the Board’s statistics relevant to determining whether South Asians and other racialized minorities are under-represented in the Principal positions within the Board. She states that it will not be possible to establish under-representation, and prove discrimination under section 11 of the Code, in this case, without some statistical evidence.

6The applicant also submits that this statistical evidence is circumstantial evidence supporting an inference that she was subjected to discrimination.

7I agree that statistical evidence of the sort described by the applicant may be relevant to the applicant’s case, but not just because of any characterization of it as a claim of “constructive discrimination.” It may well be relevant circumstantial evidence supporting an inference of direct discrimination. But it is not clear to me that there is any prejudice in receiving the relevant statistical evidence in the second phase of the hearing, as part of the broader contextual evidence. As the Tribunal stated in DeFreitas v. Ontario Public Service Employees Union, 2010 HRTO 618:

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. What is different is that I would first hear all of the evidence from all parties directly relating to the applicant’s allegations prior to assessing the relevance of and necessity for the broader institutional evidence. 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.

8In the case at hand, the applicant alleges that the Board’s promotion process is discriminatory because it allows bias based on Code grounds to influence the outcome, and in fact it did influence the outcome in the applicant’s case. Whether characterized as a claim of constructive discrimination or direct discrimination, the first phase of the hearing will examine the applicant’s allegation that her race, colour, place of origin and ethnic origin, as well as association with “racialized, minoritized and/or equity seeking groups” were factors in the respondents’ decision-making with respect to her promotional opportunities.

9However, as I have indicated, relevant statistical evidence will be received as part of the contextual evidence in the second phase of the hearing.

REFUSAL OF “EXCEPTIONAL CASE STATUS”

10The applicant submits that in directing that evidence be heard in the first phase on the applicant’s efforts to obtain the support of Principals and Superintendents from September 2005 to 2008, the Tribunal excluded a specific timely allegation that in September 2004, she requested and was refused “exceptional case status”. She submits that the hearing should include evidence about this allegation of discrimination.

11Upon review of the Application, this event is alleged to have occurred on September 1, 2004. As an allegation of discrimination in the promotion process that was not challenged as untimely, I am inclined to agree with the applicant that this event should form part of the first phase of the hearing. If no objection is received from the respondents, the Tribunal will hear evidence about this allegation in the first phase.

BIFURCATION OF PRODUCTION AND DISCLOSURE

12I have considered the applicant’s request that disclosure of arguably relevant documents should not be bifurcated. The applicant submits, through examples of the types of documents she seeks, that she will be prejudiced in the preparation of her case without access to these documents, both in cross-examination of Board witnesses and in determining which witnesses she may call during the first phase. She also suggests that it may unnecessarily extend the length of the hearing and lead to the recalling of witness to have bifurcated disclosure.

13I am not convinced that the potential negative impact of bifurcated disclosure outweighs the practicality of such an approach. As indicated in the Interim Decision, the Tribunal will receive submissions of the parties at the conclusion of the first phase on the necessity and relevance of the broader contextual evidence. Disclosure for the purpose of the second phase of the hearing will thus be premised on any determinations the Tribunal makes as to the scope of the issues to be canvassed there.

14As to its impact on cross-examination of the Board’s witnesses during the first phase of the hearing, beyond the general statement that information in the documents sought would allow the applicant to challenge some of the Board’s positions, the applicant has not indicated the relevance of those documents to the issues in the first phase. There is no indication or assertion that the documents the applicant seeks were known, authored, used or considered in any way by the Principals and Superintendents involved in making decisions about the applicant’s promotional requests. Their arguable relevance to the first phase is not apparent.

CONCLUSION

15The applicant has raised some other incidental questions about the scope of the evidence during the first phase of the hearing but these can be dealt with by the Vice-chair presiding at the hearing.

16I therefore confirm that the hearing will proceed in two phases in accordance with the proposal put forward in my Interim Decision, with the clarification (and subject to objection from the respondents) that the first phase will include the allegation that the refusal to grant the applicant “exceptional case status” in or about September 2004, in order to enter the promotion process, was discriminatory. Any comments from the respondent on this point must be provided within two weeks of this Interim Decision.

17I also confirm that the requirements under Rules 16 and 17 will be bifurcated between the two phases of evidence and also that the hearing will proceed to hear the case on liability before proceeding with issues of remedy.

18I direct the Registrar to schedule three days of hearing initially.

19I am not seized of this matter.