HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nicholas Kisielewicz

Applicant

-and-

Toronto District School Board and Ron Felsen

Respondents

DECISION

Adjudicator: Ken Bhattacharjee

Date: November 22, 2013

Citation: 2013 HRTO 1941

Indexed as: Kisielewicz v. Toronto District School Board

appearances

Nicholas Kisielewicz, Applicant ) Self-represented

Toronto District School Board ) Gail Geronimo, Counsel

and Ron Felsen, Respondents )

INTRODUCTION

1The applicant, who is white, originally from Poland, and 65 years old, is a teacher with the Toronto District School Board (the “TDSB”). He filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondents discriminated against him with respect to employment because of his race, place of origin, and age.

2The purpose of this Decision is to decide whether the Application should be dismissed on a preliminary basis because it has no reasonable prospect of success. The parties attended a summary hearing where they had the opportunity to make oral submissions and present documents and cases, which addressed this issue. At the hearing, I heard oral submissions from the applicant, and dismissed the Application with written reasons to follow. The following are my written reasons.

BACKGROUND

3In the 2012-2013 school year, the applicant taught math and science to grade 11 and 12 students at Northern Secondary School. Ron Felsen was the principal of the school.

4On December 6, 2012, an incident involving the applicant, a Sign Language Facilitator (the “SLF”), a Deaf student, and hearing students occurred in a grade 12 math class, which resulted in the SLF filing a complaint against the applicant with the TDSB’s Human Rights Office (the “HRO”). The HRO then investigated the complaint.

5On May 30, 2013, a superintendent and Mr. Felsen informed the applicant in writing that the TDSB had determined he had violated internal human rights policies and procedures and the Code by harassing the SLF and interfering with the disability-related accommodation needs of the Deaf student. The applicant was disciplined as a result of his alleged misconduct.

6On June 10, 2013, the applicant filed an Application with this Tribunal, which disputed the respondents’ factual account of the incident that had occurred on December 6, 2012, and alleged that the respondents had engaged in “ethnic cleansing”, Mr. Felsen had acted as judge and executioner, the respondents had double standards with respect to conduct in the classroom, the respondents had violated the principle of equality before the law, and Mr. Felsen had often stressed his ethnic background which was different than the applicant’s.

7On July 25, 2013, the Tribunal issued a Case Assessment Direction (“CAD”), which directed that a summary hearing be held by teleconference to decide whether the Application should be dismissed on a preliminary basis because it has no reasonable prospect of success. The CAD stated at paras. 4-5:

The 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 Human Rights Code…. To succeed in an Application, an applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination, an applicant must prove a link between a respondent’s alleged actions and a Code ground. Having reviewed the Application, it appears that the applicant may be unable to prove a link to the ground or grounds alleged.

The Registrar will schedule a half-day summary hearing by teleconference. The applicant will proceed first during this summary hearing. The applicant shall make argument about why the Application should not be dismissed as having no reasonable prospect of success, and point to the evidence on which the applicant will prove a link between the respondents’ actions and the grounds cited….

8The summary hearing took place on November 20, 2013. At the outset of the hearing, I read paras. 4 and 5 of the CAD and reiterated that the parties should follow the Tribunal's directions in those paragraphs in their submissions.

ANALYSIS

9The Application relates to ss. 5 and 9 of the Code, which provide:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

(…)

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

10Rule 19A of the Tribunal’s Rules of Procedure provides for a summary hearing, following which an application may be dismissed, in whole or in part, if the Tribunal finds that there is no reasonable prospect that the application or part of the application will succeed. The approach to deciding whether an application has a reasonable prospect of success following a summary hearing was explained as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 (“Dabic”) at paras. 8-10:

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.

11The 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. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17.

12The focus at the summary hearing was on the second branch of the Dabic test, namely, whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that the respondents discriminated against him because of his race, place of origin, and age when it investigated an internal human rights complaint against him, and disciplined him for alleged misconduct.

13In his submissions, the applicant merely summarized the narrative of his Application, and failed to point to the evidence on which he will prove a link between the respondents’ actions and his race, place of origin, and age. I then read paras. 4 and 5 of the CAD again, and asked him to specifically address how he will prove a link between the respondents’ actions and his race, place of origin, and age. In response, he merely stated that discrimination is the only possible reason to explain the respondents’ actions.

14In my view, the Application does not have a reasonable prospect of success. In his Application, the applicant alleged that the respondents treated him unfairly, and he made vague statements about “ethnic cleansing”, a lack of due process, double standards, a lack of equality before the law, and the stressing of ethnic differences. At the hearing, despite having received the CAD and being prodded by the Tribunal, he was unable to point to the evidence on which he will prove a link between the respondents’ actions and his race, place of origin, and age, and merely stated that discrimination is the only possible reason to explain the respondents’ actions. I therefore find that there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that the respondents discriminated against him because of his race, place of origin, and age when it investigated an internal human rights complaint against him, and disciplined him for alleged misconduct.

ORDER

15The Application is dismissed.