Kearney v. Toronto Catholic District School Board, 2012 HRTO 776

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Kearney

Applicant

-and-

Toronto Catholic District School Board and Frank Ferrante

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: April 17, 2012

Citation: 2012 HRTO 776

Indexed as: Kearney v. Toronto Catholic District School Board

APPEARANCES

Michael Kearney, Applicant ) Assisted by Mary O’Neil

Toronto Catholic District School Board ) Sharon Duffy, Counsel

and Frank Ferrante, Respondents )

Canadian Union of ) Ryan Goldvine, Counsel

Public Employees, Affected Party )

1A summary hearing was held on March 26, 2012, to determine whether this Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that it would succeed. The applicant filed his Application alleging discrimination in employment on the basis of age and reprisal, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The Tribunal issued a Case Assessment Direction directing that a summary hearing would be held under Rule 19A of the Tribunal’s Rules of Procedure. Rule 19A.1 reads as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an 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.

3The issue that Rule 19A requires me to determine is whether this Application has no reasonable prospect of success. If a finding is made that this Application has no reasonable prospect of success, then it is dismissed. In the absence of such a finding, this Application will continue to advance through the Tribunal’s process.

4In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal stated:

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.

5The narrative in this Application consists of a number handwritten notes appended to the Application. None of the allegations contained in these notes appear to be related to the Code grounds cited, namely age and reprisal. Instead they seem to be comprised of assertions of unfair treatment and discipline. In answer to the request in the Form 1A, “Explain why you believe you were harassed or discriminated against based on your age,” the applicant states the following:

F.F. told me if I had three letters in my file I would looking at termination. In the previous 20 years I never received a letter. He said that I could work until I couldn’t.

6At the summary hearing, the applicant made the link between the treatment and his age more clearly. He explained that he believed that the recent wave of discipline was related to the fact that he had continued to work after age 65. He said he thought he may have been one of the first employees in the respondent board to take advantage of the abolishment of mandatory retirement.

7The applicant states that the events described in his Application started after he turned 65 on April 25, 2008. Shortly before that, the individual respondent, Frank Ferrante, became his supervisor. The applicant states that his plans to work after his 65^th birthday were known to the respondents.

8The question raised by the applicant’s explanation is, why did he fail to make this link in his Application? This concern was compounded when counsel for the Canadian Union of Public Employees (“CUPE”) indicated that the applicant had filed several grievances during this period and had failed to allege or even mention age discrimination.

9In the normal course of events, I would regard the failure to advance this theory earlier problematic; however, among the documents appended to the Response is a letter from the applicant, dated March 5, 2008, in which he raises this theory. On page 2 of this letter (which is a response to a letter from the respondent school board about his level of absenteeism), the applicant states:

Prior to Frank Ferrante warning me, after my most recent absence from work, that I had been “red-flagged” regarding my attendance it should be noted that I have only been asked twice in the last five years to provide proof of illness via a doctors note. …

I am aware, other that providing a doctor’s note, I am not bound to provide any additional information. However, I have always informed my supervisor(s) of the nature and ongoing treatment for any condition that required time taken off. This causes me to question the underlying reason for raising this issue at this particular time considering the recent elimination of mandatory retirement at sixty-five. [Emphasis added.]

10In light of the above, the applicant has satisfied me that he may be able to make a link between the events alleged to have occurred (which are yet unproven) and the grounds upon which he made the claim. I cannot find, therefore, that there is no reasonable prospect that his Application will succeed.

11As a final note, the applicant brought a Request for an Order During Proceedings to amend his Application to bring an allegation of reprisal concerning an incident that occurred in his workplace on February 24, 2011 between him and a co-worker. I heard oral submissions concerning this request, filed September 1, 2011, and denied (at the summary hearing) the request to amend on the basis that the allegation appeared to be unrelated to a Code violation.