Alexander v. Toronto District School Board, 2014 HRTO 1060

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Samuel Alexander Applicant

-and-

Toronto District School Board, Tania Bloomfield, Jonathan Cohen, Davina Blenman, Zoraida Van Ael, Nina Sengupta, Christine MacDonell and Sarah Hicks Respondents

DECISION

Adjudicator: Leslie Reaume Date: July 21, 2014 Citation: 2014 HRTO 1060 Indexed as: Alexander v. Toronto District School Board

APPEARANCES

Samuel Alexander, Applicant Self-represented

Toronto District School Board, Respondent Grant Bowers and Gail Geronimo, Counsel

Tania Bloomfield, Jonathan Cohen, Davina Blenman, Zoraida Van Ael, Nina Sengupta, Christine MacDonell and Sarah Hicks, Respondents Susan Ursel, Counsel

Introduction

1This Application was filed on November 18, 2009, under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and alleges discrimination and reprisal in employment on the basis of race, colour, ancestry, place of origin and ethnic origin. The applicant self-identifies as a person of South Asian – East Indian ancestry and Malayalee ethnicity. The applicant referred throughout his testimony to the intersection of these grounds as his “identity” and therefore, I have done the same.

2The Application named seven individual respondents (the “IR’s”) who are teachers employed by Toronto District School Board (“TDSB”). The TDSB was subsequently added as a respondent on consent of the parties.

3The applicant is a secondary school teacher. He started work in September 2008 in the English Department of West Hill Collegiate Institute (“West Hill”) as a teacher and Curriculum Leader. The parties agree that West Hill is one of the most culturally and ethnically diverse schools in the TDSB.

4The Curriculum Leader is responsible for ensuring that the curriculum developed by the Ministry of Education is followed by teachers in the English department. Additional responsibilities of the role include maintaining the departmental budget, ordering text books and facilitating meetings. The Curriculum leader is not engaged in supervision or discipline of the teachers. When the applicant started his assignment in September 2008 he was new to West Hill and to the role of Curriculum Leader.

5The IR’s are the applicant’s former English department colleagues. They are also members of District 12 of the Ontario Secondary School Teacher’s Federation (“OSSTF”).

6The narrative of the Application summarizes the applicant’s allegations:

Since I began work in September 2008 as Curriculum Leader, English at West Hill Collegiate Institute, the Respondents named in this Application have, by constantly assuming less of my dignities and capacities, verbally attacked, socially undermined, gossiped about, created a poisoned work atmosphere for and filed at least three reprisal documents each against me. In actively doing so throughout the academic year, they have repeatedly sought to cast aspersions about and to question my competence with regard to my understanding and use of: (a) methodology (b) assessment (c) curriculum (d) professionalism, and (e) leadership as well as with reference to my: (f) intelligence (g) comprehension (h) communication, and (i) character

7The applicant goes on to allege that his identity was a factor in the treatment he believes that he experienced:

…the respondents named herein have, despite my being far more qualified than all of them and much more experienced than most of them, repeatedly discriminated against me in my employment based on preconceived notions and negative attitudes about my Ancestry, my Place of Origin, my Race, my Colour and/or my Ethnicity.

8The internal and external processes which have arisen as a result of the interactions between the applicant and the IR’s include a complaint by the IR’s under the TDSB Workplace Harassment Policy which was investigated; a document referred to throughout this proceeding as a “non-confidence” letter signed by the IR’s describing their concerns about the applicant; a complaint under the TDSB Workplace Harassment Policy by the Applicant which was not accepted for filing by the TDSB Human Rights Office; and a complaint by the Applicant against the IR’s with the Ontario College of Teachers. This Application to the Tribunal is the latest in the series.

9All of the respondents deny the allegations against them. They find the applicant’s perceptions about the workplace and their conduct to be incredulous. They have argued since the commencement of this Application that the applicant’s materials are vague and replete with generalizations. Even where the applicant refers to a specific incident that actually did occur (a departmental meeting for example), the respondents argue that the applicant’s perceptions about the incident are wholly unreliable.

10The IR’s argue that this Application, along with the applicant’s attempt to file under the TDSB Workplace Harassment Policy and his complaint to the Ontario College of Teachers, is an act of reprisal against the IR’s for their complaints about the applicant. The IR’s take the position that they pursued those complaints because of their perception that the applicant had engaged in harassment and abusive conduct toward them. It is not disputed that the applicant declared a number of times, in writing, that he intended to pursue the IR’s to the “full extent of the law”.

11The applicant filed a substantial number of documents replying to the issues raised in a TDSB workplace harassment complaint filed by the IR’s against him, as well as in the context of his own TDSB and Ontario College of Teachers complaints about the IR’s. The respondents argue that the applicant articulates, for the first time in this Application, the allegation that the grounds of ancestry, place of origin, race, colour and ethnicity are at the root of his experiences. Fundamentally, the respondents take the position that this is a workplace dispute which is not linked to the Code in any way and that the applicant is using this forum to continue a campaign of harassment against the IR’s.

12At an earlier stage in the proceeding, the Tribunal held a summary hearing and dismissed the reprisal allegations arising prior to April 2009, but permitted the other allegations to proceed (2012 HRTO 1105). At that stage the Tribunal did not hear evidence, but assumed the allegations to be true and measured them against the standard of “no reasonable prospect of success”. It remains open to the hearing adjudicator who actually hears the evidence to determine, at any stage in the hearing, what evidence is required to properly dispose of the Application.

Decision

13I issued a number of directions in the pre-hearing phase which are described below. The applicant testified in accordance with my directions. Having considered his testimony and the facts which are not in dispute, I have determined that this Application should be dismissed at this stage in the proceeding without considering further evidence. The applicant is unable to establish a link between the incidents he described in his testimony and his identity, which is an essential element in proving discrimination.

14The applicant appears to feel genuinely aggrieved by what he perceives to have occurred at West Hill. However, his human rights allegations are based entirely on his own assumptions and speculations. For example, the incident which appears to have touched off this entire dispute is the first departmental meeting of October 24, 2008, where the applicant alleges that he was “attacked” by his colleagues. He further alleges that the “attack” was based on his identity and that the IR’s conspired before the meeting to undermine him. It is a fact that there was a meeting on October 24, 2008. However, the applicant’s own description of those events does not support a finding that he was “attacked”, nor is there support whatsoever for the allegation that there was a coordinated effort by the IR’s to undermine him at this meeting because of his identity. These are speculations and assumptions on the applicant’s part which cannot form the basis of a reasoned decision by this Tribunal that the applicant was a victim of discrimination.

15The applicant stated a number of times that he wanted to believe his experiences were not attributable to discrimination but would need evidence to be convinced of that fact. This is precisely why the Application cannot succeed. The burden is on the applicant to prove his allegations. Having listened carefully to the applicant and considered the facts which are not in dispute as well as the relevant documents, I find that the applicant is unable to point to evidence, as opposed to his own perceptions and assumptions, which would support the allegations of discrimination that he has made against his former colleagues and the TDSB.

Facts

Facts Which Are Not in Dispute

16There are a number of facts and a basic chronology to this conflict which do not appear to be disputed. While the applicant did not organize the documents he intended to rely on during his testimony, he repeatedly indicated that documents supporting his testimony could be found “in the Tribunal file”. He referred specifically to those documents which were attached to the Responses filed by the TDSB and the IR’s. As a result, I have relied on some of those documents, particularly those which the applicant referred to in his testimony or which were authored or received by him. I have not relied on other documents which would require authentication by another witness, such as the content of the notes prepared by Principal Hodgins during the course of her investigation into the various allegations between the IR’s and the applicant.

17Following the chronology, I have set out the applicant’s testimony.

Chronology

18The applicant competed for and obtained the position of CL at West Hill following the death of the former CL, a person who had held that role for a number of years.

19In June 2008, in advance of the start of his appointment as the CL, the applicant met with members of the English Department. He sent a letter following that meeting which states, in part:

Coming in to meet everybody “On the Hill” yesterday and sharing in (y)our collective/departmental camaraderie as well as to enjoy the obvious and infectious affection everybody has for each other was a wonderfully rewarding experience for me to behold.

20There were also some email exchanges between the applicant and Mr. Cohen which appear to be directed at giving the applicant some background about the department before he started work.

21On October 15, 2008, the applicant sent out a letter to his colleagues outlining issues he wished to address at the upcoming departmental meeting of October 24, 2008. The memo describes, among other things, the applicant’s enthusiasm for public education, his views on the rights of students and the responsibilities of teachers and his pedagogical vision. Early in the memo the applicant makes the following statement which he later described in his testimony as a subtle reproach to a teacher who was allegedly mocking the work of some of the students:

I personally come to the table with great joy in where we have finally arrived at within the arena of public education in Ontario. Not everything is perfect, and perhaps it shouldn’t be…but there is a great deal that has come together – and in the right ways too – in recent years. So much, that I cannot remember the last time I have complaint or been unkind/mocking about student work…or even needed to chastise a student about his/her work, because it is no longer necessary. What could be better?

22On October 21, 2008, the applicant sent out a memo asking for input into the agenda for the departmental meeting.

23On October 24, 2008, the applicant chaired the departmental meeting. It is at this meeting that the applicant alleges he was the victim of a planned and coordinated “attack” by his colleagues.

24On November 17, 2008, the applicant distributed a policy written by the OSSTF highlighting a number of portions of the document which relate to the role of the CL and the responsibilities of members generally.

25On December 15, 2008, Mr. Cohen sent an email to the applicant indicating that it had come to his attention that the ENG4U exam may not have been marked in a consistent manner. He asked the applicant to provide him with copies of his exams, as the other English teachers had done, in order to determine whether the concerns of the students were valid.

26On December 17, 2008, Principal Hodgins received a memo from Mr. Cohen which suggests that there may be a problem with the exam. He makes reference to the departmental practice of collecting exams after they have been marked and keeping them together in the event that an issue arises which needs to be addressed. He indicates that all of the exams have been collected with the exception of the applicant’s, and he describes the applicant as “utterly unresponsive” to the request.

27The applicant did eventually provide his exams and no discrepancies in marking were found.

28On January 14, 2009, an English department meeting was held and the applicant distributed a 6-page letter dated January 12, 2009, addressed to “Team English”. The letter announces a number of unilateral changes that the applicant intends to implement. The last directive is then followed by the applicant’s allegations about the conduct of the IR’s toward him since he commenced his appointment as CL:

All intra-departmental requests/directives about anything – grade-level trips, or team-level (eg: exams, deadlines, etc.) need to come to and from me. It isn’t anybody else’s place to issue them. There are no surrogates in my leadership style. Respecting internal chain of command is an important lesson we want our students to honour within our classrooms; same principle. Not hard to get. Disrespecting employer-assigned internal chain of command will be considered “insubordination” – behaviour students get punished for.

…there will be no more inelegant mutinies – not ever again, under my leadership. I am the Curriculum Leader of this department, and am here to be a hands-on one. The plan was always to stay low until the first reporting cycle, and observe. (I do not like what I see, and neither do the students.)

Since being appointed to this position, I have been yelled at, misrepresented, mischaracterised, insubordinated, been spoken down to and put in the position of dealing with not only my own professionalism being questioned but also of having my students’ calibre impugned. Yes, I have offered my peers the same courtesy and kindness that I offer my students, because that is who I am, and because I am absolutely secure about my pedagogy and the numbers it generates.

However, I will not tolerate any more inelegant behaviour towards me…or, for that matter, disrespectful language about students either…from anybody on the team. It is, in fact, shameful – and a damning verdict on the way this department has done business so far – that I should even have to point that out. I would have thought “good teaching practice” would imply more time spent on improving one’s own teaching and student success numbers, and not on plotting how to bring a colleague down. Any hint of unprofessionalism – in volume, tone, mockery, insecure self-righteousness, suggested implication, etc. – from anybody, and due process will follow. We are all entitled to a safe work environment, especially the students.

Lastly, while this may not be a change I am introducing, it is quite likely a change in the way things have been done within the English department at West Hill C.I. until now. I will be filing formal complaints against two members of the team, on grounds of persistent, malicious and unprofessional behaviour – and am awaiting advice on how the process unfolds.

Without further ado, as Meryl Streep’s mother-character in “River Wild” says when she hits the white water rapids, “Vacation’s over!” – in more ways than one. From my vantage point, in the waters, I can see quite a few interesting waves forming…with notions like Transparency, Accountability, and Integrity bubbling through. I also see other people’s children crowding around – some splashing in the water but far too many hovering at the edge, wanting very much to wade in and get wet, unsure of what to expect and utterly afraid to take a chance. I am here to help them walk on waters…choppy or otherwise. You may want to consider joining me.

Cheers,

Samuel Alexander

29On January 16, 2009, the respondent Ms. Van Ael filed a personal workplace harassment complaint against the applicant. The complaint alleges that the letter of January 12, 2009, delivered by the applicant at the January 14, 2009 meeting, was insulting, intimidating and threatening.

30On January 28, 2009, the IR’s filed a TDSB workplace harassment complaint to the TDSB Human Rights Office naming the applicant as the respondent. The IR’s claimed that the letter distributed on January 14, 2009 was unprofessional, abusive, intimidating and threatening. They argued that it raised questions about their integrity, showed contempt for their opinions and implied that they are lacking in intelligence.

31On February 3, 2009, the applicant responded to the claims of workplace harassment in a lengthy letter to the TDSB Human Rights Office. The applicant describes the complaint as:

…a laughably desperate and self-indulgently convoluted litany of melodramatic hyperbole – compounded in no small measure by the self-righteous paranoia, self-absorbing rationalization and intellectual ineptitude usually triggered by guilt…

The applicant counter-claimed that the behaviour of the IR’s toward him was abusive, offensive and unprofessional. The manager of the TDSB Human Rights Office, Patricia Hayes, assigned the complaint to an investigator. At the same time the applicant wrote a memo to the IR’s acknowledging the complaint and promising “as always to be courteous, polite, professional and gracious in word and deed.”

32On February 4, 2009, the IR’s wrote a letter to Principal Hodgins and the applicant indicating the “what follows is a catalogue of reasons we have no confidence in Samuel Alexander’s abilities as Curriculum Leader at West Hill C.I.” This letter has since been referred to by the applicant as the “non-confidence letter.” In the letter, the applicant is accused of having contempt for what the English teachers do.

33The investigation which had been underway into the TDSB complaint of the IR’s was held in abeyance while Principal Hodgins investigated the non-confidence letter.

34Throughout the month of February 2009, the applicant met with Principal Hodgins, sent a letter responding to the non-confidence letter, and Principal Hodgins met with the IR’s.

35On March 2, 2009, Principal Hodgins received a transfer request signed by the IR’s, on the basis of the “unresolved crisis of leadership.”

36On March 25, 2009, the applicant wrote to Ms. Hayes at the TDSB Human Rights Office providing further responses to the complaints made against him by the IR’s.

37On April 2, 2009, the applicant wrote to Ms. Hayes asking for a meeting so that he could be informed of the process which would be used to address the complaint against him. He indicates that he does not believe that the IR’s have a valid complaint against him and he would like to see the complaint resolved as quickly as possible.

38On April 3, 2009, the IR’s sent a petition to Ms. Hodgins stating that there had been no information provided to them regarding the status of their non-confidence letter.

39On April 7, 2009, Principal Hodgins proposed a meeting with the IR’s which was held on April 22, 2009.

40Also on April 7, 2009, the results of the TDSB complaint by the IR’s against the applicant were released. The report makes the following four observations:

• The group of teachers have acted inappropriately and unprofessionally in their approach to Mr. Alexander.
• Mr. Alexander has been less than diplomatic in his communication with the teachers in the department.
• The principal would have been prudent to include a representative of the teachers in the selection process for the Curriculum Leader.
• Harassment has not occurred to date, but the situation could, and likely will, deteriorate rapidly without an intervention.

And the following recommendations:

• The group of teachers must be confronted with their inappropriate behaviour and advised that further similar behaviour would likely be viewed as harassment and perhaps discrimination. Their actions were not professional.
• Mr. Alexander should be advised to give more thought to his communication with the teachers. His goals are not the issue, it is his approach to achieving the goals which would benefit from refinement.
• The principal should clearly define the roles of the Curriculum Leader and individual teachers in the department. This would be best done in consultation with all parties and the agreement of all parties is necessary. Perhaps an experienced educational consultant could be engaged.
• Mr. Alexander would benefit from coaching in the areas of leading a team, introducing and managing change and principled negotiation.
• Mediation would be advisable to prevent further deterioration in the relationship.

41On April 15, 2009, the applicant sent an email to Ms. Hayes thanking her for the letter confirming the “dismissal of the workplace harassment case” against him. He states that he is in the process of determining whether he will “move against the complainants”. Ms. Hayes responds the same day cautioning the applicant that a complaint on his part could be seen as reprisal against the teachers who filed the complaint against him. She attempts to clarify that the recommendation of the Human Rights Office is for team building within the department with the support of outside resources. The applicant responds the same day indicating that he is not engaging in reprisal but that he is interested in accountability.

42On April 16, 2009, the applicant writes an email to Ms. Hayes indicating that he has put five of the IR’s on notice that he is filing a complaint with the Human Rights Office against them. The letter sets out the basis for the applicant’s complaint:

…you have deliberately engaged in sustaining a climate of prejudice against me as well as that you have willingly and relentlessly participated in a series of questionable, illegitimate and damaging actions aimed at both undermining as well as harming my personal and professional dignity.

Allow me also to state here that, given the not-really-necessary-but-long-enough period (7.5 months!!!) that I have patiently and kindly offered you repeated opportunities of time and space to re-examine your actions as well as to re-evaluate your motivations (unfortunately, to no avail), I intend to pursue these complaints to their fullest legal extents and I will consider any attempt to seek/offer mediation or any other such conciliatory action in your interests by yourselves and/or anybody else working on your behalf…as both a deliberate disregard of my rights to fair justice and honourable treatment as well as a further act of intimidation and harassment.

Thank you for your signed statements of non-confidence and alleged workplace harassment. They will be part of the evidence submitted in support of my petition.

43On April 17, 2009, the applicant received an email from Ms. Hayes asking whether the applicant intended to file a workplace harassment complaint or a human rights complaint. The applicant replied the same day indicating that he feels he has grounds for both. Ms. Hayes replied back the same day advising the applicant that he will need to identify the prohibited grounds engaged by his complaint and asking him not to share his submission with staff until he has met with the Human Rights Office.

44On April 20, 2009, the applicant sent an email with the subject line “Update on impending HR complaint” to the five IR’s as well as Principal Hodgins and Ms. Hayes, which states: “In the interests of clarity, please be informed that your rights to be apprised of and provided with a copy of the complaint I will be filing against you will be honoured, in accordance with the provisions that govern such action.”

45On May 3, 2009, the applicant emailed Ms. Hayes the background information to his TDSB complaint.

46On May 6, 2009, the applicant sent Ms. Hayes his TDSB complaint. It is referred to by the applicant as a TDSB workplace harassment complaint and not specifically a human rights complaint. In it he describes a number of incidents leading up to the filing of his complaint along with his perceptions and assumptions about the IR’s. He describes, for example, his observations of Mr. Cohen and Ms. Bloomfield in the period leading up to the meeting of October 24, 2008:

The week after the first Parent-Teacher Evening in October 2008, the newly-put-up quotation on the school’s roadside notice board, read: “Examine what is said, not him who speaks it.” Arriving in the department office on morning, the day of its being put up (or perhaps the day after), I heard Tania Bloomfield, loudly as always, making the point that the quotation was grammatically wrong, and that it reflected very poorly on the school. I also heard Jonathan Cohen, as he tends to do when she speaks, muttering words of agreement. Interestingly enough too, nobody in the department contradicted them.

Their technical argument – which she ridiculously and repeatedly pursued all the way to the main office – was that it should have been “Examine…he” (an argument that, notwithstanding the chuckles it has generated behind their backs outside the hallowed environs of the English office, raises serious questions about the assessments the two of them carry out, the marks they hand out and the post-secondary options being closed/opened to students in their classrooms). Probably also explains why they only mentioned Diamantes and Limericks in their non-confidence motion against me, ignoring Prepositional Phrase and Infinitive Phrase Poems altogether.

A few days prior to October 24, 2008, I had been told by another senior English teacher that it was felt by some in the department that I might have fired off my October 15, 2008 memo in haste as it contained grammar errors (“many, many errors in grammar, punctuation and sentence structure” was the phrasing used in the months-later February 4, 2009 (illegitimate) non-confidence motion). I am still waiting for the list of supposed errors in said memo to come my way from the non-confidence motioners; I had requested Principal Hodgins to ask them to supply me one. Let me tell you why: Ms. Hayes, it has none; an elliptical omission, yes; grammar errors, none.

I wonder why Tania Bloomfield and Jonathan Cohen repeatedly feel the need to raise their voices in order to make a – any – point with me? (Or, do I?) Bravado? Nah, maybe just faux-leather. Though, the notion that I need to have their confidence is, I confess, tickling, remotely,…and charming too. (My suggestion is they work on earning their students’ instead.)

47The letter also makes reference to some interactions with individual IR’s. For example, the applicant writes about the following interaction with Sarah Hicks:

On March 10, 2009, after the second set of morning exams had finished, as I was walking through the school office, I was approached by Sarah Hicks, who was herself on her way out. As our paths crossed, she turned to me and said, “Next time, if you do not mind, could you not let the 2Ps go until after the 1.5 hrs is done?” I told her I had only been following school rules, and at this point the conversation was taken over by two staff members assigned to make announcements that day, who clarified to her what I had done was the right thing.

Sarah Hicks continued on, without a word of remorse or apology for the negative presumption and consequent request that she had just made. “If” Sarah Hicks was a woman of “good conscience” as she claims to be in the no-confidence motion against me, she would have recognized, respected and risen to her obligation to first get the facts right before she makes judgments about other people (something she openly does quite often and with a presumptuous sense of entitlement).

48The applicant also describes the meeting of October 24, 2008:

During the October 24, 2008 meeting, as the hour-long attack on me was being carried out and I was repeatedly being put in the position of explaining concepts and practices that teachers of “good conscience” ought to already have had in place in their classrooms, but specifically after Sarah Hicks (who does not co-teach any grades with me) put forth, “But you teach haiku! They do that in grade six!!”, I explained how and what I have my students do with haiku. At which point Davina Blenmen, who to her credit did not say much that day and who did ask for as well as express satisfaction with my clarification about “Get-It-All-Wrong” chapter quizzes later on that afternoon, said, “But doesn’t content matter?” Notwithstanding that it was a needlessly negative presumption as well as an artless unawareness of sound pedagogy, one would think it (content) ought to have mattered before Ms. Blenman put her signature to the non-confidence motion, wouldn’t one?

49The applicant describes the group of teachers as “engaged in a series of escalating acts of reprisal, assault and intimidation” for which he is seeking serious disciplinary actions against them.

50The applicant also sets out 35 points describing his complaints about the IR’s. For the most part, the allegations relate to general observations, assumptions or speculations on the part of the applicant rather than specific incidents. What follows is a sample of those statements:

• by purposely and purposefully participating in the planning (October 15-24, 2008) as well as leading the execution (October 24, 2008) of a predetermined and sustained (verbal) assault on a peer, just seven weeks into his term as the new Curriculum Leader,
• by deliberately hiding/masking and not owning up to anything they have done – and continue to do – to me and to my professional reputation (October 24, 2008 – date) within the workplace (in public, and behind my back; both individually and collectively),
• by failing to honor due process recommendations and procedures in the filing of complaints, thereby causing themselves further embarrassment and, consequently, escalating and/or failing to re-examine/check their own ruinous resolve to seek punitive harm to a peer’s professional role of responsibility,
• by confirming their own personal intransigence and their own pedagogical intractability and, thereby, exposing their own culpability in the persistence of not only mediocrity in student success but also of resolution in this crisis,
• by consciously creating and operating within the department through a “We (don’t) like you,” (Sarah Hicks) clique culture that is organized around historical friendship and not the principles necessary for an essential to respectful professional discourse,
• by failing to exercise obligatory “good conscience” and “critical thinking” in the vetting of their own complaints and petitions against me, and subsequently and self-righteously projecting their anger/ disappointment/shame over the dismissal of these complaints at me,
• by repeatedly expecting me to explain to them concepts and trends in educational pedagogy that they ought to – as teachers of self-declard “good conscience” – already be familiar with and successfully practicing in their classrooms,

51The applicant initially indicated to Ms. Hayes that he felt he had grounds for both a workplace harassment complaint and a human rights complaint. He was advised by Ms. Hayes that he would be required to identify the prohibited grounds under the Code engaged by his complaint. When he filed his complaint on May 6, 2009, he referred to it as a Work Place Harassment Complaint and not a Human Rights Complaint. While he mentions the Code in general terms, he does not specifically address how any of the prohibited grounds under the Code are connected to his allegations. What he does allege is that the conduct of the IR’s is driven by jealousy toward him because of his superior pedagogical skills and results in student success, as well as historical friendships and a “shared involvement in a common guilt” which have caused the IR’s to resist any changes to the status quo.

52On May 7, 2009, the applicant wrote to Ms. Hayes enclosing a chronology which he indicated had assisted him in preparing his TDSB complaint. The applicant also indicates that he would like to provide the IR’s with a copy of the complaint. Ms. Hayes writes back to the applicant advising him again, that he is not to inform the IR’s of his allegations until the Human Rights Office determines whether his allegations fall under the TDSB Workplace Harassment Policy.

53On May 11, the applicant sent to Ms. Hayes a revised version of his May 6, 2009 complaint.

54On May 14, 2009, Mr. Cohen wrote to Ms. Hayes asking for an update on the status of the complaint that the applicant had advised them he would be filing. Ms. Hayes wrote back indicating that the IR’s would receive a copy of the complaint if the Human Rights Office determines there is merit to the complaint.

55On May 28, 2009, the applicant received an email from Ms. Hayes advising that the Human Rights Office would not accept his complaint and reiterated the need for immediate intervention by the administration.

56On May 29, 2009, the applicant wrote to Ms. Hayes and Principal Hodgins responding to the decision not to accept his complaint. He indicates that it will take him a few days to decide what to do next. He states:

…but in the meanwhile, to remind all concerned of my statement to the respondents on April 16, 2009: “…I intend to pursue these complaints to their fullest legal extents and will consider any attempt to seek/offer mediation or any other such conciliatory action in your interests…by yourselves and/or anybody else working on your behalf…as both a deliberate disregard of my rights to fair justice and honourable treatment as well as a further act of intimidation and harassment.

Therefore, please refrain from contacting me in any way about any kind of team-building charade…

57In that letter he offers his own insight into why he has been treated in the manner he has alleged:

Thank you also for adding insult to the injury by suggesting that I need training, in-depth or otherwise: it amazes me how much patronizing this Country is capable of. Ms. Hayes, my Grade Nine Applieds understand my instructions and produce work others do not deem them capable of. Ms. Hayes, as Ms. Hodgins herself knows, there are far more students being successful in English since I arrived at West Hill C.I. in September 2008 than has been the norm here for years because I am curriculum-smart and pedagogy-savvy, and because the standards of engagement are higher. Ms. Hayes, Ms. Hodgins herself knows but may not admit, this department has seen more clarity of vision and polite leadership since I have joined it than it has in all the years of her having been here. Ms. Hayes, I am not being attacked because I seek to challenge the status quo; I am being attacked because that is how the status quo has operated (which is why Ms. Hodgins may not have taken them on before) and I have, very simply, exposed – with written evidence – the callous lack of respect, the absolute lack of personal and professional integrity and, in the case of the leaders of this status quo, the utter incompetence, that has been the operational norm here…

The time for Professional Grace is over. In choosing to draw the curtain on my complaint, you have also shut the door and locked the latch. I will not come knocking again. I will however remember your advice to me the next time I hear/read a story about some woman being attacked by somebody she knows despite having already contacted the authorities, because I know what that feels like. Principal Hodgins has made sure I do.

58The applicant does not describe a link between the conduct of the IR’s and the prohibited grounds set out in his Application to this Tribunal, as a possible explanation for the conduct he alleges he has experienced.

59On June 9, 2009, the applicant emailed TDSB Superintendent Don McLean and Principal Hodgins to advise them that he will be notifying the eight IR’s (and one other teacher who is not an IR in Application before this Tribunal) that he has filed a complaint against them at the Ontario College of Teachers as a result of the “non-confidence letter” and the TDSB complaint filed against him. He encloses a copy of his own TDSB complaint against the IR’s which he describes to Superintendent McLean and Principal Hodgins as “substantiated even as it was stalled”. He indicates that he intends to “pursue this complaint about the respondents (most certainly with regard to the self-appointed leadership of this group) to its fullest legal, consequential and compensatory extents.” He reiterates that he will not engage in conciliation discussions.

60In the complaint to the College, the applicant indicates that the complaint is about professional misconduct and “self-declared, self-incriminating Incompetence”. He is seeking to have the licences of five teachers revoked and three others subject to terms and conditions. He also describes his own TDSB Workplace Harassment Complaint as substantiated.

61The complaint to the College alleges professional misconduct and incompetence but not discrimination. In the complaint the applicant states:

I submit to the College that all of the above-named teachers – displaying utter peer-disregard and incredibly self-righteous pique as well as riding on uncritically-thought-through personal chutzpah and a resolved willingness/determination to coalesce around a historical friendship in order to use numbers as a means to hide personal guilt and exert social and political pressure – have self-declared themselves “incompetent” by engaging in conduct that has self-demonstrated: (i) their resolute intent and unbecoming capacity for acting on a guilt-ridden desire to deny actions they knowingly participated in, that were obviously harmful and hurtful to the personal and professional dignity of a peer…..”

62The applicant goes on to list several other accusations against the IR’s including their intention to harm him, their inability to tell the truth and their lack of fitness in carrying out their own professional responsibilities.

63Between June 10, 2009 and June 23, 2009, there were a number of meetings. The applicant met with Ms. Hodgins to complain about an incident with Ms. Van Ael in which she is alleged to have mocked him upon entering the English department office with the statement “grand entrance”. He also met with Principal Hodgins alleging that certain unnamed students had told him that an English teacher had been encouraging the grade 11 students to take up a petition against him. The applicant also provided Superintendent McLean with further materials including new allegations against Principal Hodgins.

64Superintendent McLean conducted an investigation. The applicant declined the opportunity to have a union representative with him. Superintendent McLean met with the applicant and the IR’s as part of his investigation. Notes were taken which were subsequently provided to the applicant for comment. The applicant provided his comments on the notes indicating at the outset that he was concerned that Superintendent McLean was aligned with the IR’s. The applicant confirms in the notes his belief that a poisoned work environment existed in the English department long before his arrival.

65The notes indicate that the applicant was asked by Superintendent McLean why he told the College that his TDSB complaint was substantiated when it was not. The applicant responded in writing as follows:

I cannot argue with what Patricia Hayes told Don (McLean); I wasn’t party to that conversation – though having closed a file I had not officially opened, that is exactly what one would expect her to say, (wouldn’t one)

See email evidence, from Patricia Hayes (“does not yet constitute harassment”…”showing their displeasure by attacking you” – “yet is not a negative, it suggests degree, and with confirming implications). In my OCT petition, I state “(convolutedly?) substantiated, and I call it a submission. The OCT and I have already had a conversation about this and both sides understand that workplace harassment is not the OCT’s jurisdiction.

66I note here that the applicant also addressed this issue in his testimony and repeatedly referred to his workplace harassment complaint as a “draft” and a process which he had not officially pursued as opposed to a complaint which was rejected by the Human Rights Office as not falling within the TDSB harassment guidelines.

67On June 23, 2009, the applicant provided Superintendent McLean with a copy of the chronology that he had prepared to support his TDSB complaint.

68On September 2, 2009, the applicant was relieved of his duties at West Hill and placed on home assignment with pay pending the outcome of Superintendent McLean’s investigation.

69An undated Investigation Report prepared by Superintendent McLean concluded that the applicant should be removed from his position as CL and placed in another teaching position with the TDSB.

70The applicant filed his Application with this Tribunal in November, 2009. Subsequent to the filing of his complaint, he informed the Tribunal that he was precluded from applying for the CL position at West Hill when it was advertised.

71On February 2, 2010, the applicant assumed a teaching position at York Mills Collegiate Institute. He won a competition for the position of Curriculum Leader at Garneau Collegiate, effective September 2010.

The Applicant’s Testimony

72The applicant testified in relation to his allegations. He made reference to some but not all of the facts set out above. While the respondents urged me to consider only those facts arising from the applicant’s testimony, I have determined that it is more prudent to consider the applicant’s case at its highest, including those facts which are not disputed.

73In my view, this approach is particularly important here, where the applicant referred throughout his testimony to the documents which could be found in the Tribunal’s file, specifically those attached to the Response of the TDSB. The applicant’s failure to organize and produce those documents during his testimony made it more difficult to understand his narrative since he was often speculating or generalizing about the content of the document he was referring to. However, throughout his testimony, the applicant was provided with opportunities for breaks to review documents and notes to ensure that his testimony was as complete as possible. He was permitted opportunities to revisit areas of his testimony where he was able to recall details at a later point. All of this was directed at ensuring that the applicant had a full opportunity to tell me his story in the manner which was most comfortable and effective for him.

Departmental Meeting: October 24, 2008

74The applicant testified that the memo dated October 15, 2008, which was circulated in advance of the meeting, was intended to give his colleagues a sense of his vision and leadership style. He testified that he had heard one of the IR’s mocking the work of students and attempted to address it indirectly in the memo with the language I set out at an earlier stage in this Decision.

75The applicant testified that he had heard that some people thought he had sent out the memo in haste because it contained errors. He also testified that he was the victim of a coordinated “verbal assault” at the meeting of October 24, 2008.

76The applicant testified about his recollections of the meeting. He recalled making reference to the academic reputation that the school had many years ago, which in his view had changed. There was a discussion about student achievement during which the applicant mentioned that the students in his classes were turning in almost perfect work. The applicant testified that Ms. Bloomfield said something to the effect of: “with these students?” The applicant testified that to him that comment implied that there were negative assumptions made about the culturally diverse students, some of whom shared aspects of the applicant’s identity.

77The applicant testified that he did not remember the point at which the “flare-up” occurred, but that all of the IR’s were present and therefore responsible for what he described as the “attack”. At another point in his testimony the applicant recalled that the flare up occurred when Ms. Van Ael asked if there could be some discussion about the memo of October 15, 2008. The applicant testified that Mr. Cohen raised his voice and said that the applicant was ruining the standards of the department. Ms. Bloomfield is alleged to have made a similar comment. Ms. Hicks is alleged to have said, “but you teach Haiku”. The applicant testified that people were throwing allegations at him, there was tension in the room and that voices were raised. The applicant recalled that at one point Ms. Delcol said, “can we just calm down?” and the people in the room relaxed a bit. The applicant testified that a discussion ensued about teaching strategies and the “negative energy” began to dissipate.

78I note that this description of the meeting de-escalating as a result of Ms. Delcol’s intervention is inconsistent with other written materials filed by the applicant. For example, in his TDSB complaint he describes it as “an hour long attack” and in the notes from his meeting with Superintendent McLean, he confirms that he was attacked for a full 1.5 hours by the team.

79The applicant testified that even those IR’s who did not participate in the discussions at the meeting were engaging in discrimination because they sat quietly listening rather than defending him. The applicant testified, for example, that at one point during the discussion of teaching methods, Ms. Blenman noticed that his throat was dry and the applicant interpreted the expression on her face to mean that she knew he was being attacked, but she did nothing to assist him. The applicant also testified that although he could not remember what Ms. McDonnell said at the meeting, he remembered her having a “negative edge” to her voice. The applicant testified that as she was leaving the building at the end of the day, Ms. McDonell told him that she did not want him to think she was a “luddite”.

80Similarly, the applicant could not recall what Ms. Sengupta had said during the meeting. However, the applicant testified that the IR’s all knew that something was going on and that they engaged in the “attack” either by specifically saying something or remaining quiet. At another point the applicant testified that “they all joined in” and that the only person who did not speak out was Ms. Delco.

81The applicant testified that he recalled “all of them” laughing at him throughout the meeting. He testified that every time he talked about his teaching there was mocking laughter on the part of some, and silence on the part of others. The applicant was particularly offended by the fact that no one objected to the alleged comment by Ms. Bloomfield: “with these students?” The applicant testified that Ms. McDonnell was laughing, which surprised him because she came across to the applicant as a very caring person. He testified that it bothered him that she would align herself with an “attack” against the students. The applicant testified that he felt the same way about Ms. Sengupta, who is also alleged to have laughed during the meeting.

82The applicant also testified to having a vague recollection that Mr. Cohen said he had been told by friends in the guidance department that the applicant’s students were complaining about chaos in the applicant’s class. The applicant testified that Ms. Bloomfield “backed him up” but could not recall what she said following these comments by Mr. Cohen.

83The applicant testified that he had a feeling an attack was coming. He had been approached by a teacher, who allegedly told him that people in the department were being “riled” up and that Ms. Bloomfield showed her the memo of October 15, 2008, and asked if she had “any dirt” on the applicant. The applicant testified that this teacher is now retired and unwilling to participate in the hearing as a witness.

84The applicant also testified that in the days following the distribution of the October 15, 2008 memo, the applicant noticed a “funny expression” on the faces of some of teachers. He testified that some would divert their eyes and some would pretend not to see him. The applicant testified that while he noticed these expressions, he did not understand what they meant. On the first day back following the meeting of October 24, 2008, the applicant recalled seeing a different expression on people’s faces, one that he interpreted to mean: “I’m so glad you survived”.

85The applicant testified that leading up to the October 24, 2008 meeting there were other small incidents, questions from students, conversations about the relationship between standards in the department and the success students were enjoying in his classes, all of which, in hindsight, caused the applicant to believe that all kinds of conversations were likely going on about him and/or his teaching methods which were part of the context for the October 24, 2008 meeting.

86The applicant testified about a specific incident involving Ms. Van Ael. The applicant approached Ms. Van Ael during lunch to let her know about a development opportunity. Ms. Van Ael is alleged to have yelled at the applicant in anger asking him not to discuss it with her during lunch. The applicant testified that he apologized and said he would speak with Ms. Van Ael later and that it made sense to him that she needed quiet time at lunch. The applicant testified that Ms. Bloomfield intervened unnecessarily to support Ms. Van Ael by reiterating that it was Ms. Van Ael’s lunch hour. The applicant testified that he went to his desk “reeling” from the experience.

87The applicant testified that he also recalled positive conversations with his colleagues, including one with Ms. Sengupta and one with Ms. McDonnell, who indicated their interest in his ideas and outlook early on in his role as the CL.

Other Incidents

88The applicant testified that prior to the memo of October 15, 2008, Ms. Bloomfield mocked work written by students whose first language is not English. The applicant did not testify to anything more specific. He did testify that it was in response to this experience that he included a veiled reference to mocking the work of students in his memo of October 15, 2008.

89The applicant testified that he experienced “conspiratorial exclusion” when teachers would huddle and then disperse as he approached, the assumption on the applicant’s part being that he was the subject of their discussion. For example, the applicant testified that he heard the name of one of his grade 12 students uttered by a group of teachers who immediately hushed their voices when they saw him approach. A few days later the applicant was having a conversation with the student’s parent who had some concerns about how the applicant was delivering the curriculum. The applicant testified that he put “two and two” together and concluded that the huddled teachers must have been discussing this issue and that this is also an example of discrimination on the basis of the applicant’s identity.

90While the applicant acknowledged that he could not really prove that people were talking about him, he testified that it was more “the vibe” and the expressions on people’s faces that caused him to believe that the conversations were likely about him.

91The applicant testified that he had received information via a student that the English exams were going to be evaluated by Mr. Cohen. The applicant testified that at some point after the exam period a notice went up asking teachers to deposit their exams in a bin. The applicant had not deposited his exams so his name appeared on the notice. The applicant described this as a form of “visual harassment”. He testified that although he made no inquiries about who put the notice up, he was bothered by it because it was insidious and unnecessary. The applicant testified that he then received a note from Mr. Cohen asking him to deposit his exams. The applicant contends that the motivation behind Mr. Cohen’s request must have been discriminatory since it was not Mr. Cohen’s role to make such an inquiry. Rather than discussing the request or raising his perceptions directly with Mr. Cohen, the applicant ignored the request.

92Mr. Cohen apparently escalated his request for the exams to Principal Hodgins. The applicant testified that he went to the principal and asked what she intended to do about his perception that he was being mistreated by Mr. Cohen. The principal is alleged to have responded with “nothing”. The applicant testified that he was stunned at this response and that he felt that people were “re-combining” to attack him by directly questioning his ability to mark the work of his students. The applicant acknowledged that although he was sure that others were behind Mr. Cohen’s email to Principal Hodgins, he was unable to prove that assumption.

93The applicant also testified that Ms. Bloomfield had overstepped her authority by asking whether the applicant had filed his grades. The applicant concluded that this was discriminatory because it was not her role and as far as the applicant was aware, Ms. Bloomfield had not asked about the grades of a white teacher. The applicant had also alleged in his materials that he had heard, a few days before the October 24, 2008 meeting, that Ms. Bloomfield had made negative comments to other staff members about his personality, his hairstyle and his attire. The applicant did not address this issue in his testimony.

94The applicant testified that following the October 24, 2008 departmental meeting he announced to his students that if they had any concerns about his teaching they should speak with him first before they exercised their right to “take it up the ladder”. He testified that he advised his students that if they were talking to other teachers or students about him it could be used against him as part of an attack. He testified that he raised this issue with his students because he wanted to help them avoid being drawn into the conflict he was having with the other teachers.

95The applicant testified that he was very insulted by the fact that in his view, his colleagues just pretended nothing had happened after October 24, 2008. The applicant acknowledged that Ms. Sengupta approached him and suggested that he needed to speak with his colleagues. While he acknowledged to Ms. Sengupta that she was correct, he did not know where to start. The applicant testified that he was looking for an acknowledgment on the part of his colleagues that they had treated him inappropriately and were now dragging his students into the conflict. The applicant testified that Ms. Sengupta told him that he needed to put the meeting behind him and move on.

96The applicant testified that he told Principal Hodgins what happened at the meeting of October 24, 2008. He described himself as having been “lynched”. The applicant testified that he was disappointed by Principal Hodgins’ response which allegedly was to tell the applicant that he would need to move on. The applicant testified that it did not hit him until that moment that the principal may have been aware that an attack on him was being planned prior to the October 24, 2008 meeting.

97The applicant testified that if the principal was not prepared to do something about the October 24, 2008 meeting and the email sent by Mr. Cohen about his failure to deposit his exams in the bin, then he would need to take the matter on directly.

98The applicant testified that he wrote and presented a memo dated January 12, 2009 at a meeting on January 14, 2009. The applicant described the memo as having “more swagger to it” and bolder than the “let’s work together” memo of October 15, 2008. The applicant testified that in this memo he was putting the issue of how he had been treated on the table and that he was going to start “proceedings” against two members of the department although he did not name those people directly. The applicant characterized both the letter of January 12, 2009 and the meeting of January 14, 2009 where it was delivered as an “opportunity for reflection” for the IR’s. The applicant admitted that he had not attempted to address his concerns arising from the meeting of October 24, 2008 with any of the IR’s before issuing the memo of January 12, 2009.

99Meetings took place in January 2009. The applicant was told that his colleagues were considering filing a complaint against him as a result of the January 12, 2009 memo. The applicant testified that he considered the filing of both the TDSB complaint and the non-confidence letter to be acts of discrimination and reprisal against him. In the non-confidence letter the IR’s allege, among other things, that the memo of October 15, 2008 was “completely incoherent, for reasons beyond the many, many errors of grammar, punctuation and sentence structure.” The applicant testified that he was deeply offended at the suggestion that he had made errors of any kind in the memo of October 15, 2008. The applicant testified that his identity made him an easy target.

100The applicant testified that he met with the principal on February 12, 2009, and told her that he wanted a list of the errors he was alleged to have made in the October 15, 2008 memo. He applicant testified that to this day he has never received a list of errors he had requested.

101The applicant testified that Ms. McDonnell told him that he needed to speak with his colleagues but he responded by telling her that they had started a proceeding and now he would have to wait to see what happened.

102The applicant testified that once he filed his complaint with the College, things got worse. He testified that Ms. Van Ael mocked him and said something to the effect of “here comes the great one”. In his written documents this incident is described using the words “grand entrance.”

103He also testified that he had heard that one of the IR’s was trying to get students to sign a petition against him. This is one of the reasons the applicant wished to call some of his students to testify on his behalf. In his view, their testimony would establish that one of the IR’s was “recruiting an army against him”. Although he acknowledges that he was in a position of power in relation to his former students, the applicant testified that it was important to respect the fact that they are wise and mature and unafraid to be cross-examined.

104When the applicant was asked to describe the connection between the events in October, 2008 and his identity, he testified that but for his identity, there was a good possibility that positive rather than negative presumptions would have been made about his competency. He also testified that it was the ease with which people gave themselves permission to raise their voices, to be short with him or to yell at him. But for his identity, the applicant believes he would have been treated with more respect.

105The applicant maintained both in his written materials and in his testimony, that despite the treatment he is alleged to have endured, he has been courteous, generous, gracious and approachable toward the IR’s throughout.

Pre-Hearing Background

106As I previously indicated, this Application was the subject of a summary hearing which resulted in the dismissal of the applicant’s reprisal allegations arising prior to April 2009. The remaining allegations were left to be adjudicated on the basis of evidence.

107In the pre-hearing phase I issued an Interim Decision (2013 HRTO 259) in an attempt to resolve the legitimate concerns on the part of the respondents that the applicant’s allegations could not be properly adjudicated because they lacked sufficient particulars.

108On March 1, 2013, I issued a Case Assessment Direction addressing the respondents’ concern that the applicant had failed to comply with the Interim Decision. For example, in his response to the Interim Decision, the applicant provided some further detail but then repeatedly stated that “specific details are already available in the documents provided to all parties by the TDSB in May 2010”. I determined that it was apparent from reviewing the correspondence and the considerable material which had been filed that it would not assist the parties for me to continue to provide pre-hearing directions in writing. Instead, I issued a direction that the Tribunal would hear the applicant’s evidence in chief, the respondents would not be required to prepare for cross-examination, and further instructions would be issued following the applicant’s testimony. Disclosure had already taken place by the time of the applicant’s testimony.

109It was necessary for me to act to bring a sense of proportionality to this proceeding. The applicant filed numerous documents, only a small number of which were relevant to his allegations of discrimination. The applicant filed academic qualifications and reports for three proposed expert witnesses. The role of the experts would be to support the applicant’s contention that he had been unfairly accused of making errors in the memo of October 15, 2008.

110In addition to the expert witnesses and his anticipated cross-examination of all of the IR’s as well as any agents or employees of the TDSB, the applicant filed a list of witnesses he intended to call, including:

• Former Principals and Vice-Principals of West Hill;
• TDSB Superintendent;
• TDSB Human Rights Office Manager;
• TDSB Administrative Liaison;
• Former TDSB Superintendent;
• Former TDSB Employee Services Secondary Staffing Manager;
• OSSTF Executive officer and representative;
• Victoria Park Collegiate Institute Vice-Principal;
• Don Mills Collegiate Institute Vice-Principal;
• Former West Hill OSSTF Branch President;
• West Hill English/Drama Teacher;
• Former West Hill Media Studies Teacher;
• West Hill History Teacher;
• Former Ontario College of Teachers Registrar.

111The applicant reserved the right to ask the Tribunal to direct the TDSB to produce any or all of a list of approximately 70 teachers and support staff from West Hill as well as a list of 142 students and their parents. The applicant notes that the students would be asked to testify about the applicant’s standards of English and pedagogy and about their own experiences “at the hands of the English department” at West Hill.

112With respect to documents, the applicant filed a significant number of documents during the pre-hearing phase and indicated that there were voluminous “public domain” documents which he could produce if required to do so. He also indicated his intention to rely on the documents filed by the respondents.

113In the Application, the applicant describes the remedy he is seeking: $14,000 in general damages against each IR individually on the basis that they waged a “persistently prejudicial and discriminatory campaign”. The applicant remains dissatisfied with the fact that the IR’s did not apologize to him after the meeting of October 24, 2008. He also indicates that he will forgo the damages he is seeking if each respondent provides him with a list of perceived errors in the October 15, 2008 memo, including a “substantiated and rules-based rationale” which is acceptable to the applicant.

114A hearing took place on April 16, 2013. In accordance with the directions set out in the CAD, the applicant testified in chief and answered my questions; the respondents were not required to prepare for or conduct a cross-examination. My goal was to permit the applicant an opportunity to tell his story from his own perspective and in the order which made the most sense to him, before considering the next steps in the hearing process.

115At the conclusion of the applicant’s testimony, I determined that I would hear submissions from the parties on whether the applicant’s testimony supported his allegations of discrimination. Fundamentally I was concerned that during his testimony, the applicant appeared to be describing impressions and assumptions he had developed about the conduct of the individual respondents, as opposed to evidence of acts on their part which might lead to a finding of discrimination.

116I issued a CAD dated May 8, 2013, setting out the information the parties would require in order to prepare for their submissions. The parties were permitted an opportunity to file written submissions in advance of their oral submissions. The respondents filed submissions in support of dismissing the Application.

117The oral submissions were deferred until the fall of 2013 to accommodate the applicant, who was engaged in the care of an elder family member over the summer.

118Two days before the date for oral submissions, the applicant wrote to the Tribunal with questions about the disposition of his reprisal allegations. The day before the hearing the applicant emailed the Tribunal to advise that he would not be in attendance and would be filing a Request to defer the hearing. The applicant was advised that the hearing would proceed as scheduled and that the Tribunal would deal with any issues he wished to raise prior to the commencement of oral submissions.

119The applicant appeared on the hearing date and made submissions in support of his request for an adjournment and deferral. The respondents received the applicant’s written request (Form 10) approximately 15 minutes before the hearing. Both requests were denied.

120One of the applicant’s concerns related to the TDSB filing authorities they intended to rely on. The respondent TDSB agreed not to rely on the cases filed on short notice and as a result, there was no prejudice to the applicant.

121With respect to the deferral, the applicant argued that his Application should be deferred because he is experiencing ongoing reprisal at another TDSB school where he is now teaching. The applicant asked for time to consider amending the Application and to have an investigation conducted into whether or not he has been treated fairly in his current workplace. The applicant also indicated that he needed time to organize documents. He also argued that he needed further particulars from the respondents in order to convince himself that he had not been the victim of discrimination. The applicant argued that if he could be convinced that he had not experienced discrimination he would withdraw the Application.

122The applicant also sought deferral of the Application on the basis that all of the parents who are members of parent councils in all of the high schools across the TDSB should be added as respondents to the Application as a result of the applicant being placed on home assignment once again.

123The applicant also disagreed with the conduct of the hearing and my decision to ask for submissions on whether his testimony supported his allegations of discrimination. The applicant argued that it would be unfair to him to preclude him from calling and cross-examining all of the witnesses that had been proposed by him or the respondents. I address that issue in my reasons below.

124In my view, these submissions did not raise legitimate concerns about fairness and transparency in the hearing process. For all of the reasons I have set out above, it was necessary for me to bring a sense of proportionality to this proceeding in accordance with the Tribunal’s mandate for fair, just and expeditious resolutions of human rights applications. The applicant was given every opportunity to properly prepare for both his testimony and the oral submissions on whether the application should be dismissed. The request to defer was based on allegations of discrimination which could form the basis of a separate complaint, provided that an application was filed in a timely fashion. The applicant acknowledged that he was aware of this fact.

125For those reasons, both requests for adjournment and deferral were denied and I proceeded to hear submissions on whether or not the Application should be dismissed.

Arguments on Whether the Application Should be Dismissed

The Applicant’s Arguments

126The applicant argued that despite being very gracious, generous and approachable, he was bullied and harassed, and when he refused to back down, false allegations were made against him by the IR’s. The applicant argued that his colleagues should have been supporting him, not trying to destroy him within weeks of his arrival. The applicant argued that his identity was a factor in these incidents and that the conduct of the IR’s was driven by negative presumptions about his professional and personal capacities which would not have occurred if he did not, in his words, “look different”. The applicant argued that he is entitled to an explanation from the IR’s and an opportunity to challenge their views of him through cross-examination.

127The applicant argued that his testimony and the documents he referred to supported a connection between his identity and the adversity he claims to have experienced. He argued that the fact that he was ultimately moved from West Hill is evidence of discrimination. He also argued that his case would be strengthened by the testimony of the students of the IR’s who are willing to testify against their former teachers; by the cross-examination of TDSB employees and the IR’s themselves who would be exposed as liars; and by the testimony by the three proposed experts who would prove there were no errors in the October 15, 2008 memo.

128The applicant referred to documents about external advice given to the TDSB about prejudicial behaviour on the part of teachers, although he did not have the document in his possession. He also argued that he is willing to produce evidence that directly links what happened to him at West Hill with what is currently happening to him at Garneau - specifically a letter which he wrote to the trustees which he could produce if permitted. He also argued that the link between the adverse treatment he experienced and his identity is established in part by the failure to provide him with a list of errors in the October 15, 2008 memo.

129The applicant also argued that his testimony that he felt like “Little Simba in the Lion King going into the den of a group of growling hyenas” was consistent with others he knows who have described the department as a “den of vipers” and a “snake pit”. In other words, he was not responsible for a poisoned work environment – he contends that a poisoned work environment existed long before he started.

130The parties were directed in advance of their submissions to the Tribunal’s decision in Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777 (“Pellerin”). The applicant is correct in pointing out that the Tribunal in Pellerin determined that the applicant’s case depended principally on the credibility of the individual respondent and therefore heard evidence in chief and permitted cross-examination of that respondent by the applicant. The applicant in this Application argues that he has a right to call further evidence and cross-examine further witnesses.

Submissions of the IR’s

131The IR’s argue that this is a case about issues of professionalism, interpersonal communication and the running of their English department. The IR’s do not challenge the sincerity of the applicant’s feelings. They argue that the applicant’s evidence does not support his perception that discrimination is a factor in explaining his feelings.

132The IR’s argue that there is no reasonable prospect of success for two primary reasons: the first is that the applicant did not recall or did not provide sufficient information about a number of incidents from which any factual findings could actually be drawn; and the second is that even where the applicant could demonstrate an incident with adverse consequences, he was unable to point to evidence beyond his own speculation which would establish that any prohibited ground was a factor in his experience.

133I do not consider it necessary to set out the submissions of the IR’s in detail. I did not note any significant differences in their understanding of the applicant’s testimony as compared to my own.

134The IR’s argue that the applicant’s allegations are disconnected with reality and that he has a consistent tendency to assume that he knows other people’s thoughts, emotions, and motivations without cogent, objective and verifiable evidence. The IR’s argue that the burden is on the applicant to provide credible evidence of events taking place and their link to a prohibited ground under the Code. The IR’s take the position that the applicant has effectively reversed this burden by his position that he is waiting to be convinced that there is some reason other than discrimination for the incidents he describes in his evidence.

135The IR’s also point to problems of vagueness and inconsistency in the applicant’s own testimony and that the applicant himself constantly characterizes this as an issue of professionalism. The IR’s argue that the applicant’s evidence that his colleagues were angry with him does not disclose a Code violation. By his own admission, the applicant sent a memo out January 12, 2009 that was meant to be provocative. The IR’s argue that it should come then as no surprise that the memo had the effect of making people feel that he was attacking them. Fundamentally, the IR’s argue that this conflict is about the applicant’s interpersonal communication style and lack of leadership experience and skill.

136The TDSB and the IR’s both take the position that if the applicant is unable to establish discrimination against the IR’s then he is also unable to establish vicarious liability on the part of the employer TDSB.

137The TDSB did not file written submissions but supported the submissions of the IR’s. The TDSB argues that there is only one, vague allegation directly against the TDSB which relates to the competition for a new CL which the applicant alleges he was precluded from applying to.

Reasons

138I adopt the reasoning from Pellerin with respect to the principle that a hearing should not continue if it cannot succeed. I disagree with the applicant that he has a right to call evidence and cross-examine the witnesses of his choice. Section 43(1) of the Code authorizes the Tribunal to, among other things, define or narrow the issues required to dispose of an application and limit the evidence and submissions of the parties.

139The applicant was advised throughout the hearing that the Tribunal does not have the power to evaluate general claims of unfairness, conflict or even extreme dysfunction in a workplace unless there is evidence that a prohibited ground is a factor in the treatment experienced by the applicant. In this case, the burden is on the applicant to prove, on a balance of probabilities, that his identity was a factor in the conduct of the IR’s. Discrimination or reprisal need not be the only or even the principal factor in a respondent’s actions, but the applicant must show that it was one of the factors.

140At this stage in the proceeding, the burden is on the applicant to demonstrate that there is a prima facie case of discrimination. That burden is met by the applicant where his testimony, the facts which are not in dispute and the documents he relies on establish a credible context for drawing an inference that his identity was a factor in the treatment he experienced.

141The real question here is whether the applicant’s allegations of discrimination and reprisal are credible. As is so often the case, there are no direct allegations of discrimination here, only circumstantial evidence from which, the applicant argues, an inference of discrimination and reprisal may be drawn by properly “connecting the dots”.

142The Supreme Court in Ontario (Human Rights Commission) v. Simpsons Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 described the prima facie case as one which: “covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent-employer”. The Court was referring here not to assumptions, perceptions and speculations about the conduct of a respondent, but to direct or circumstantial evidence, which, if believed, is complete and sufficient to justify a verdict in the complainant’s favour.

143Even if I accept that there is sufficient evidence, at this stage, to find that the applicant was mistreated by the IR’s, what is missing from the applicant’s case is evidence that the applicant’s identity was a factor in that treatment. I make this finding on the basis that the applicant has not established a sufficiently credible context for me to infer that his identity was a factor in the treatment he experienced. I do not accept the applicant’s perceptions, assumptions and speculations and the meaning he attaches to the incidents he alleges that the IR’s were engaged in.

144In considering issues of credibility I was guided by the well-established principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carries conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. [emphasis added]

145I am also mindful of the Ontario Court of Appeal’s comments on credibility and reliability in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (C.A.) at p. 205:

Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.

146In Visic v. Elia Associates Professional Corporation, 2011 HRTO 1230, the Tribunal stated, at paragraph 54:

Evaluating the reliability and veracity of a witness’s evidence is a multi-faceted exercise, where a conclusion of credibility develops from various interrelated findings, such as whether, on a balance of probabilities, the evidence was sufficiently probable, logically connected to other points, and/or buttressed by independent evidence; as well as findings with respect to the state of the witness, such as candour or evasiveness, capacity to perceive and remember, and attitude towards the parties. A finding of lack of credibility or reliability with respect to one aspect of a witness’s testimony does not automatically render the entirety of the witness’s evidence as incredible or unreliable. As such, a tribunal is entitled to accept or reject some, all or none of a witness’s evidence: see Loomba v. Home Depot Canada, 2010 HRTO 1434.

147I agree with the respondents that many of the applicant’s allegations remain vague and incapable of adjudication even after his testimony. I have described a number of those incidents earlier in this Decision. For example, the applicant testified that his perception that he was experiencing discrimination developed through experiences like “conspiratorial exclusion”: the looks on peoples’ faces and the “vibe” he experienced when he walked in on other teachers talking. He also had a tendency to attach a more sinister meaning to basic interactions with people with the passage of time. For example, following his interaction with Principal Hodgins, who allegedly suggested that he “would have to move on” from the meeting of October 24, 2008, he began to believe that Principal Hodgins may have known that an attack was being coordinated by his colleagues prior to the meeting.

148The applicant’s testimony, as well as the facts which are not in dispute, and the documents referred to by the applicant, establish that a very serious workplace dispute arose between the applicant and the IR’s which the applicant interpreted as an attack on him personally and professionally. During the course of an investigation by the Human Rights Office, the IR’s were found to have conducted themselves in an inappropriate fashion toward their CL. However, the applicant himself was found to have contributed to the conflict as a result of his communication style and lack of leadership experience.

149I have provided only a small sample of the materials filed by the applicant in the context of the internal processes which followed his letter of January 12, 2009. That letter, the materials filed by the applicant in the context of his response to the complaints of the IR’s, and the ones he initiated himself internally and externally to the Ontario College of Teachers, are all consistent with the finding by the Human Rights Office that the applicant had an important role to play in creating a healthy work environment in the English Department. While the IR’s were found to have engaged in conduct toward the applicant which was not appropriate, the applicant’s descriptions of the IR’s in the various materials he authored are appalling. He is sarcastic and contemptuous in tone and content and his words would reasonably be interpreted by his colleagues as vicious attacks on their personal intelligence as well as their professional competence and integrity.

150The Human Rights Office offered suggestions for intervention and conciliation which the applicant steadfastly refused to participate in. In fact, the applicant acknowledged only that part of the report which relates to the conduct of the IR’s. The applicant also made it clear that he intended to pursue his allegations against the IR’s to the “fullest legal, consequential and compensatory extents”. He also demonstrated a lack of understanding about what constitutes discrimination by repeatedly advising the IR’s, Ms. Hayes and his employer that any attempt at conciliation would be perceived by him as further acts of harassment and discrimination.

151It did not assist me in understanding his experience that the applicant was prone to extreme forms of exaggeration. He described the meeting of October 24, 2008, as a “lynching” and a “swarming” for example. He also gave three different accounts of the timing and escalation of the meeting between his testimony, his TDSB complaint and the notes he confirmed back to Superintendent McLean. When the applicant found his name on a board with others who were asked to deposit their exams, the applicant described this as a form of “visual harassment”. When the Human Rights Office refused to accept his complaint against the IR’s, the applicant compared himself to a woman who is attacked by somebody she knows despite having previously complained to authorities.

152I also found the applicant to be less than candid. It is one thing to refuse to acknowledge the findings of the Human Rights Office about him and to be unhappy about the fact that his own TDSB complaint against the IR’s was rejected. It is quite another to describe himself as a victim whose complaints against the IR’s were substantiated by the TDSB to both Superintendent McLean and to the Ontario College of Teachers. The applicant also repeatedly described the TDSB complaint he attempted to file as a “draft” complaint which he chose not to pursue.

153Most troubling to me was the applicant’s repeated assertion that he was gracious, generous, kind and accessible toward the IR’s while at the same time filing dozens and dozens of pages of material to their employer and their professional College accusing them, among other things, of intellectual and professional mediocrity. I cannot “connect the dots” and draw an inference of discrimination from the incidents the applicant has described in these circumstances. I agree with the respondents that the applicant’s factual allegations are unreliable because they are inextricable from his perceptions, assumptions and speculations. In other words, while I can accept that a meeting was held on October 24, 2008, and can even accept that voices were raised during that discussion and questions were asked about the applicant’s teaching methods, I cannot accept the applicant’s perception that he was “attacked”, “lynched”, or “swarmed” or his perception that his identity was a factor in how he was treated at that meeting.

154I also note that the letter of January 12, 2009 makes reference to the applicant filing a complaint against two unnamed IR’s. It is not until the IR’s combine to file an internal TDSB complaint and the non-confidence letter and the TDSB investigation is completed that the applicant indicates to the IR’s and the Human Rights Office that he will be filing a complaint against all of the IR’s. He was advised by the Human Rights Office to include a description of the prohibited grounds engaged by his allegations in the event that he chose to file a human rights complaint against the IR’s. It is not until the applicant filed the Application with this Tribunal that he alleges discrimination on the basis of the specific prohibited grounds with which he self-identifies. That, combined with his stated intention to pursue the IR’s to the “fullest extent”, may not fully support a finding of bad faith, but it supports the respondent’s position that the applicant will continue to create an endlessly elastic series of allegations until such time as he finds a forum where his perceptions about what happened at West Hill are validated.

155With respect to the applicant’s students and the students of the IR’s, I indicated to the applicant at the conclusion of his testimony that I did not consider it appropriate to hear evidence from them. First, the applicant is in a position of power vis-à-vis his current and former students. The applicant testified that he spoke to his students about the fact that they might inadvertently say something to another teacher which could be used to attack him. He testified that some of his students approached him apologizing for speaking with other teachers about him. The applicant’s explanation for warning his students was to void having them drawn into the conflict. I did not find this explanation credible nor did I consider it of assistance to hear from students who had already been told by the applicant that he was being attacked by other teachers.

156Second, the applicant did not file any proposed witness statements from the students which would assist me in understanding the issues they were expected to testify in relation to and the basis for their knowledge.

157Third, the applicant suggested that his students would testify about what they heard from other students, which would not assist me in evaluating the applicant’s claims. Nor would it assist me in determining the issues within my jurisdiction to hear from them that they considered the applicant to be an effective teacher.

158Fourth, for the reasons that I have set out above, I believe that the applicant’s expectation that his students would testify that one of their former teachers was “recruiting an army” to attack the applicant is based on the same perceptions, assumptions and speculations which I have found to be unreliable.

159For all of those reasons, I am unable to determine that the complainant’s evidence meets the test in the cases I have cited above. In addition, I have concluded that the applicant is unable to point to further evidence which is reasonably available to him which would assist him in making out a prima facie case of discrimination.

160With respect to his allegations of reprisal, the applicant must show that it was the intention of the IR’s to take the actions they did as a reprisal for asserting his Code rights. In this case, the Tribunal has already dismissed the applicant’s reprisal allegations as they relate to the period prior to April, 2009. The Tribunal found that it was not until the applicant sent a letter to the IR’s on April 16, 2009, accusing them of being “deliberately engaged in sustaining a climate of prejudice” against him, that they were informed of his intention to assert a Code-related right. In the end, the applicant’s allegations of discrimination were not articulated until he filed the Application with this Tribunal.

161What the applicant described throughout his materials and his testimony as reprisal are the actions of the IR’s in filing the TDSB complaint and the non-confidence letter against him. The only other activities engaged in by the IR’s after April, 2009 include their involvement in the investigation by Superintendent McLean, a comment by Ms. Van Ael about the applicant making a “grand entrance” into the English department, and a vague allegation which is based entirely on hearsay that one of the IR’s was “recruiting an army” against the applicant by encouraging his students to circulate a petition about him. These allegations are insufficient for a finding of reprisal against the IR’s after April, 2009.

162This Application was not originally filed against the TDSB. The TDSB was made a party on consent for the purpose of considering the question of vicarious liability and dealing with issues of remedy in the event that the IR’s were found to have discriminated against the applicant. During his testimony the applicant referred to reprisals by his employer. I understand these allegations to relate to the failure on the part of the TDSB to permit the applicant to apply for the new CL position at West Hill after he had been relieved of his duties and transferred to another school. The applicant’s allegation that discrimination is the basis for the refusal to permit him to apply to the very job he was removed from is not consistent with the preponderance of evidence.

163For all of those reasons, this Application is dismissed.