Patterson v. Toronto District School Board, 2014 HRTO 635

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andre Patterson

Applicant

-and-

Toronto District School Board and Donna Quan

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: May 7, 2014

Citation: 2014 HRTO 635

Indexed as: Patterson v. Toronto District School Board

1This interim Decision deals with a Request for Order during Proceeding (Request) filed by the respondents seeking the dismissal of aspects of this Application because they are out of time.

2This case was scheduled to begin on January 20, 21 and 22, 2014. The parties engaged in settlement discussions on the first day of hearing making significant progress but ultimately were unable to agree to resolve this dispute.

3At the outset of the hearing the respondents reiterated their request made in their Response that certain aspects of the Application be dismissed for delay. This issue had not been addressed prior to the hearing in part because, given the very general nature of the allegations made in the Application, it was not clear when certain events were specifically alleged to have occurred.

4The applicant objected to the issue being raised in the manner that it was. I ruled at the hearing that I would have to consider the issue because in my view the question of delay is jurisdictional. It is also fair to note that because of the way in which the Application was drafted some of the issues in the case had come into somewhat clearer focus and the fact that elements of the Application might be out of time became evident. So for example it was only clear at the hearing that one of three candidate selection processes which are at the heart of this Application occurred in 2010 and not in 2009 as described in the Application. I did express some concern with the issue being raised in the manner that it was at the outset of the hearing. However and, in large part because of this, I granted the applicant’s request that the issue be dealt with in writing and that the hearing be adjourned pending the resolution of the issue. I also considered the fact that given the time periods in question the parties and Tribunal faced the prospect of hearing days of evidence which would be entirely wasted in the event that it was ultimately concluded that elements of the narrative were untimely.

5The respondents were directed to deliver and file a Request (Form 10) setting out their position, to which the applicant would reply in due course. I subsequently directed the parties to provide affidavits of the applicant and a respondent witness, Michael Smith, with respect to a conversation the two had at some point in 2009 or 2010.

The allegations in the Application

6I would observe at this point that the Application filed by the applicant includes two separate narratives which are related to his claims of discrimination and reprisal. One is included in response to the query, ‘If you are applying more than year from the last event please explain why’. This narrative includes a general statement of his discrimination claim and a section entitled Historical Context. The second narrative in response to the Query, ‘What happened?’ in Box 8 of the Application contains the allegations with which the Tribunal will primarily deal. In setting out the applicant’s allegations I have only edited them slightly and have used his temporal categorization which are very general and are clearly not accurate in some important respects.

2005-2006

The applicant was transferred to Ryerson Community School. The applicant alleges that he was asked by superiors to find out about the misappropriation of funds from the Atkinson Grant that occurred when Chris Bolton was the Principal of Ryerson Community School

The applicant alleges that Bolton found out about the investigation and his involvement. The respondent Board subsequently dropped the issue

The applicant alleges that despite his hard work and positive changes at this school, Bolton had issues with his leadership

Georgina Balascas, my superintendent encouraged the applicant to transfer out of the school for the 2006-2007 academic year and the applicant was subsequently transferred to Arlington Middle School (AMS)

The applicant alleges that AMS was in crisis, the principal was demoted, parents were not happy with the school, staff were requesting to be transferred out

After the first year the applicant claims the he was able to turn the school around - reduce safe school issues, suspensions, office referrals, student achievement

2007-2008

The applicant alleges that Rauda Dickinson, the applicant Supervisory Officer (SO) encouraged him to apply to become a SO this was also supported by his Trustee, Josh Matlow

The applicant went through "the resume screening, the pre-interview process and the final interview. The interview team including Chair of the Board (John Campbell) and 2 other Trustees; Director Gerry Connolly, Associate Directors Dave Rowan; Penny Mustin; and Chuck Hay, Superintendent of Employee Service

The interview team recommended that the applicant’s name to be added to the Qualified Applicant Pool (“QAP”)

[Although not expressly stated in the Application it is not disputed that the Board of Trustees voted to remove the applicant’s name from the QAP]

The applicant alleges that he received an anonymous call from someone who was present when the Board voted. The applicant alleges he was told by an anonymous trustee that one trustee had an issue with the applicant

The applicant alleges that he was told that he was called a racist and an elitist, and that his name should not be added to the QAP

2007-2008

The applicant alleges that his new Supervisory Officer, Michael Smith, was impressed with his work at Arlington Middle School and had heard from parents and others about the transformation of the school

The applicant alleges that Smith told him that he had heard about what happened during the prior Supervisory Officer Selection Process and he offered to help and mentor me through the process, the next time around

2008-2009

The applicant alleges that Smith encouraged him to go through the SO selection process again

The applicant alleges that in preparing him for the process, he spent 15 min with the applicant on one occasion. The applicant alleges that other candidates were provided mentorship and multiple opportunities for preparation and practice

The first stage of the interview process was the screening – his SO, Michael Smith was included in this screening process. The applicant alleges that his role was to provide him with support during the interview. The applicant alleges that Smith remained quiet during the whole process and did not say anything to support him

Smith told the applicant during their debrief "you didn't have it today"

Smith is also alleged to have said that maybe the applicant needed to work on changing the perception that senior staff had of him. “They think I am "ABM". I asked him what he meant. His response was that I was seen as an "Angry Black Man."

The applicant did not progress further in the selection process (in the 2010 Selection process)

The applicant alleges that in 2009, Smith and other Senior Administrators asked him to use his strong relationship with parents in the community to support the Area Review process which resulted in the closing of Arlington Middle School

Smith is alleged to have told the applicant that this project was a way for senior staff and the Board to recognize his leadership and would help the applicant move forward next time he went through the process. The applicant complied and worked cooperatively with the ARC committee and acted as a liaison with the parents and community members. At the end of the process, Arlington Middle School was recommended to close

2009-2010

The applicant applied for the Central Co-ordinating Principal of Information Communication Technologies and IT Services (CCP)

He alleges that Smith was retiring at that time and he commented to a colleague of the applicant that he was sure that the applicant would not get the position and that Smith would work against him by providing a very poor reference to the interview team. This information was shared with the applicant after Smith retired

Despite this the applicant was promoted to the position. It was a new position in the TDSB. The applicant alleges that he was told that I had the opportunity to work with the new Chief Information Officer (“CIO”) to shape the position and define his role

The new CIO, Marika Bourque, was recruited from outside the respondent Board, The applicant alleges that he was to report directly to her

The department was comprised of a Central Co-ordinating Vice Principal (predominantly in charge of e-Learning), a centrally assigned vice principal, a Program Co-ordinator, 3 Instructional Leaders, an Office Administrator, a Computer Specialist and 10 Instructional Media Specialists

The applicant alleges that their task was to support the effective use of ICT throughout the system and provide e-Learning opportunities for secondary students' district wide

The applicant alleges that Bourque initially convened weekly department meetings with Brian Hill the Central Co-ordinating Vice Principal, Kevin Bradbeer the Program Co-ordinator and the applicant. The applicant alleges that the Centrally Assigned Vice-Principal, Aftab Mirza (a person of colour) was not invited to department meetings, even though he was a vice-principal in the TDSB

The applicant alleges that Bourque told Brian Hill, Kevin Bradbeer and the applicant, on several occasions that their titles were just titles and that Brian and Kevin would not report to the applicant. It is alleged that they were all to report to her (CIO). The applicant alleges that there wasn't a hierarchy or a division of labour even though Brian Hill was a vice-principal and Kevin Bradbeer was a teacher. The applicant alleges that this was embarrassing, as the TDSB has established roles of teachers, vice-principals and principal

Despite the above the applicant alleges that Bourque created her own division of labour. The applicant alleges that notwithstanding her views the TDSB held him accountable as the CCP of ICT

The applicant alleges that when he arrived, everyone was supposed to report to him. However, when it was communicated that Brian Hill, Kevin Bradbeer and the applicant were on the same level, individuals in the department continued to look to Kevin Bradbeer for direction, even if the applicant asked them to do something

The applicant alleges that relationships between Bourque and himself became strained. The applicant felt that she was unapproachable; she left him out of meetings. She would visit schools and speak to principals and ask Kevin Bradburn and Brian Hill to go along

The applicant alleges that the discrimination he experienced intensified when he shared information on the department's budgetary practices over a three year period. The Program Co-ordinator was in charge of the budget prior to his arrival. The office of the CIO took over the budget and Kevin Bradburn, Brian Hill and the applicant had to go Bourque's office for approval for any purchases

The applicant alleges that everything Bourque asked of him he completed, often he would spend his personal time, writing briefing notes or reports

The applicant alleges that although he asked her on numerous occasions, he did not have a clear understanding of his role or responsibilities

The applicant alleges that he spoke with the Deputy Director - Donna Quan about the situation and how he was treated and how Bourque spoke publically to individuals who she seemed to dislike. The applicant alleges that in a general Managers' meeting, she told one manager that he better get a task done or she would take a "metre of skin off his back". The manager was a person of colour according to the applicant

At end of the school year the Deputy Director transferred the applicant and he was to report to Manon Gardner, the Chief Academic Officer

At the end of year, the CCP term was up. The applicant had to re-apply for his job. He was the successful candidate and got a raise and promotion from a 10 to a twelve month term. The applicant alleges that he got transferred out of the department

The applicant alleges that he asked the Deputy Director and Manon Gardner, what his role would be and how would he support Manon Gardner, the Chief Academic Officer. The applicant alleges that he was never given anything formal. The applicant alleges that the Deputy Director said he would still have ICT in his portfolio

2011-2012

The applicant alleges that one of the reasons why he supported this transfer is because he was told by Senior Staff that the Chief Information Officer (Marika Bourque) would not support him if I applied for the SO Selection Process

The applicant alleges that Manon Gardner asked him to write reports, briefing notes, and do research for her. The applicant alleges that she would take his work, and present them without acknowledgement of his efforts. At times the applicant alleges that he was asked to do clerical and computer technician work. The applicant alleges that another individual was given the opportunity to lead the Model Schools initiative independently. The applicant alleges he was treated differently than other CCPs, at times treated more like clerical staff, or a Vice-Principal

The applicant alleges that in the Fall of 2011, he was encouraged by the Deputy Director and Manon Gardner to go through the SO Selection process. This would be his third attempt on the advice of senior staff. The applicant alleges that Manon Gardner agreed to be a referee

Chris Bolton was the applicant’s trustee prior to Josh Matlow who had been elected to City council. The applicant alleges that he asked Chris Bolton to be his referee and he refused. The applicant alleges that his reason was that as Chair of the Board he had to sit on the interview team and could not be impartial. The applicant alleges that Bolton did not sit on the interview team.

As a consequence the applicant alleges that he had to ask Trustee Stephanie Payne. She had been his Trustee when he was promoted as a Vice-Principal (almost 10 years prior). She agreed to be his referee but told the applicant that this would preclude her from being on the interview team. She was not allowed to participate on the interview team

The applicant alleges that he was successful at the resume screening stage and the reference check and was recommended for a final interview

The applicant believes that he had a great final interview with the Director, Deputy Directors, Superintendent of Employee Services and Trustees Chris Glover, Cathy Dandy and Sheila Cary-Meagher

The applicant was not successful.

The applicant alleges that he was told by Senior Staff that this had been his best performance. In speaking with the Deputy Director, she told me that she felt that he should be placed on the Qualified Applicant Pool. However, he was told that Deputy Director did not speak up in support of him as others did after the interviews

The applicant alleges that coincidently, the CCP of Model Schools also went through the SO Selection Process. This individual allegedly used Manon Gardner and Trustee Sheila Cary-Meagher as her referees. The applicant alleges that Sheila Cary-Meagher was on the interview team although referees were not supposed to be on the interview team

The applicant alleges that at the end of this year his 2 year term was to end. He asked to continue in his role as CCP. The applicant alleges that the Chief Academic Officer, the Deputy Director and the Director initially supported his request

The applicant alleges that when Senior Staff prepared the budget for the 2012-13 school year they communicated that several central staff and administrators would have to return to schools but he was told that his position was safe. The applicant was then told that I would have to return to a school.

The applicant alleges that he was told that his salary would be red-circled for one year but it was not

The applicant alleges that the respondent Board advertised at least one CCP position that he could have applied for but he was not given the opportunity despite their knowing that he was having to return to a school

The applicant was asked about his preferences for transfer to a school and was transferred to a school in South Etobicoke but a week later the Chief of Employee Services and Manon Gardner, told him that his position was safe and he would be the CCP of ICT for another year.

The applicant alleges that during this time Manon Gardner asked him to expedite the final details on the Mobile Computing Strategy 2.0 plan and when the project was finished he was told again that he would have to return to a school

The applicant alleges that he was told he was the only central administrator required to return to a school. Later, he alleges he was told by the Director that they had to bring back two central instructional leaders which required that his position be cut

The applicant alleges that he was later told by the Director that a second Central Co-ordinating principal had to go back to a school and was told that his position would be advertised

The applicant alleges that his salary was not red-circled but others have had this done for them.

The applicant alleges that throughout his career as an administrator he has worked hard to share his expertise, demonstrate his leadership and gone above and beyond to accomplish his job. In return, senior administrators have manipulated him, made empty promises, lied to him, and publicly embarrassed him by encouraging him to seek promotions. However, they failed to promote him. The promotion processes were manipulated (fixed) so that he would not be promoted. They have made disparaging comments about me behind my back. He alleges that he has experienced ongoing harassment and discrimination.

7The respondent filed a Request for Particulars on September 19, 2012. The applicant filed further particulars in response to the specific queries from the respondent. These particulars added little to the narrative. I note that the respondent sought the identity of some of the sources of information upon which several of the applicant’s allegations with respect to the 2008 SO selection process for example. The applicant could not identify the source of these allegations.

8The applicant filed a detailed Reply to the respondents’ Response. It provides some further particulars but leaves much un-particularized. In many cases the applicant disputes assertions made by the respondents in their response but offers no alternative facts. In other circumstances the Reply indicates that there are facts known to the respondents which will be revealed in detail at the hearing. In his Reply the applicant does appear to assert for the first time that a conflict between himself and a colleague over the treatment of the applicant’s son was discriminatory and part of a series of incidents going back to the 2005-2006 school year.

9In addition to this new allegation the applicant has clarified that his claim of reprisal relates primarily to the SO selection processes in which he participated in 2008, 2010 and 2011. In particular the applicant alleges that his failure to advance in the 2008 process was a reprisal by Trustee Atkinson who was upset over events in relation to the conflict with a colleague over the treatment of his son in 2006.

10The applicant has also clarified that he believes his failure to advance in the 2010 and 2011 selection process was a reprisal by Trustee Bolton for his having raised a Code issue in 2006. I would observe at this stage it is not clear on what basis this latter claim is made. While it is clear that there was discussion in April and May 2006 between the applicant and his SO about his making a harassment complaint about the conduct of one or more members of the parent council and perhaps Trustee Bolton, it is not at all clear that Trustee Bolton would have been aware of any potential Code related complaint being contemplated by the applicant in 2005-2006. Without such evidence it is not clear how the 2005-2006 allegations of conflict in the school are material to any subsequent reprisal claim.

11More generally the applicant asserts that Trustees Bolton and Atkinson and two other employees because of their placement in the organization of the respondent Board were in a position to negatively influence his career. It is also generally alleged that Trustees Bolton and Atkinson were political allies and worked together to frustrate the applicant’s career ambitions for discriminatory reasons or in reprisal for the applicant having raised Code issues in the past. It is alleged that concerns on the part of a number of individuals, principally Trustees Bolton and Atkinson, about the applicant’s past assertion of his rights continued to affect his employment prospects to the time this Application was filed.

The Delay Issue

12As indicated the respondent confined their Request to those allegations prior to the SO selection process of 2010. Having reviewed the pleadings and submissions of the parties I find that several of the allegations in this Application are out of time and therefore the Tribunal has no jurisdiction over them.

13Sections 34(1) and (2) of the Code provide:

34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

14The Tribunal has interpreted these provisions of the Code as requiring that a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. The provision has been found to be mandatory subject to section 34(2) of the Code. The limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year of the incident or incidents they believe constitute discrimination. (See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241)

15Clearly many of the alleged incidents of discrimination occurred more than one year prior to the Application being filed. In this case the question raised by the Request is whether or not the allegations of the applicant in the period prior to the 2010 SO selection process constitute a series of incidents within the meaning of section 34(1)(b). The Tribunal has interpreted the phrase “series of incidents” as requiring that the incidents be connected to each other both in terms of their timing and their subject matter. The Tribunal has determined in other cases that a gap in time of more than 12 months will in most cases interrupt the putative series of incidents even if they appear to be thematically connected. (See Chintamen v. Toronto District School Board, 2009 HRTO 1225.)

16If it is determined that some or all of an Application is out of time then it rests with the applicant to establish a good faith explanation for the delay. Tribunal has held that where an applicant seeks to establish that the delay in filing their application was “incurred in good faith”, the applicant must show something more than the absence of bad faith and must provide a reasonable explanation for the delay.

17The Application was filed on August 12, 2012 and as can be seen from the narrative above describes incidents going back to at least 2005-2006. There are also significant gaps in time between several of the alleged incidents of discrimination prior to early 2010.

18There are allegations of harassment by one or more members of the parent council and Trustee Bolton in 2005-2006. It is also alleged that the applicant was asked to investigate the possibility that school funds were used improperly. Although this is not at all clear from the Application the applicant appears to be now relying on a dispute between himself and a fellow principal about the treatment of the applicant’s son as an incident of discrimination in a putative series of incidents. Assuming without deciding that this dispute is a matter which can be raised by the applicant as opposed to his son this dispute occurred in mid- 2006.

19The next allegations relate to the 2008 SO selection process which occurred in the spring and early summer of 2008 followed two years later by the 2010 SO selection process.

20The only other alleged incident of discrimination in this two year period occurred in 2009 or 2010 – the conversation between the applicant and Mr. Smith in which it was revealed that some employee of the Board had referred to the applicant as an “ABM”.

Decision

21The applicant argues that he has been the victim of systemic discrimination but the narratives in his Application do not support such a claim. There are very few facts plead that would support such a claim. Rather the narratives of the Application and Reply describe a number of incidents involving individuals with whom the applicant had some difficult interactions. I also note that many of the allegations relate to the interactions between the applicant and a new supervisor who was from outside the respondent Board and much of what is described by the applicant is his perception of this individual’s failure to comply with the usual norms or culture of the respondent Board. Despite the applicant’s claim of systemic discrimination, what he argues and what the narrative actually describes is his experience of what he believes was discrimination and/or reprisal as a result of the actions of two individuals in particular, Trustees Bolton and Atkinson – primarily in relation to the three SO selection processes the applicant participated in. The applicant also identifies two other individual employees of the Board who because of their positions within the Board structure were able to influence his career in negative ways.

22It is also important to note that the applicant was aware of his rights throughout and understood that if he believed he was experiencing discrimination he had recourse. It is part of the applicant’s narrative that he considered this option on at least two occasions, in 2006 in relation to alleged harassment by members of the parent council and again in June 2008 in relation to the SO Selection Process that year.

Pre-2008 Allegations

23I find that any allegations of discrimination prior to 2008 are out of time. These allegations paraphrased in detail above relate to events between 2004 and 2006. The next allegations relate to the SO Selection process in May 2008. In my view even if connected thematically I find that the two year temporal gap between mid-2006 and May 2008 is sufficiently lengthy to interrupt any putative series of events.

24Despite this conclusion the applicant is able to rely on some of these events to support his claim of reprisal although the Tribunal will not hear detailed evidence with respect to these various disputes and will make no findings of liability in respect of any of them. I observe again that the connection between some of the events of 2005-2006 and the applicant’s allegation of subsequent reprisal are less than clear. The material does indicate that there was some discussion between the applicant and his SO about a harassment complaint in 2006 but it is not at all clear who else would have been aware of the discussion and there is no indication of whether or not Trustee Bolton was ever made aware of the applicant’s alleged Code concerns. In the absence of such evidence it is not at all clear how the applicant intends to establish reprisal in respect of these incidents. As regards the allegation of reprisal in relation to the 2006 dispute with a colleague about his son this is more clear in the sense that it appears to have been apparent that the applicant was alleging a violation of the Code at the time and that this was likely known to many involved in the dispute including Trustee Atkinson. It also appears possible that this dispute continued to be an issue in the workplace. The question about what evidence will be required with respect to these events prior to 2008 can be addressed further at the hearing as necessary.

2008 to 2010

25I also find for the reasons set out here that the Tribunal has no jurisdiction to consider the applicant’s allegations with respect to the 2008 SO selection process because they are also out of time.

26An important claim at the heart of this Application is the allegation that for discriminatory reasons and in reprisal for his raising prior Code concerns the applicant was not selected for placement in the QAP. These allegations relate to SO selection processes in May 2008, April 2010 and finally in 2011. The applicant did not participate in the 2009 process. Because the outcomes for the applicant in each SO selection process was somewhat different I will describe in some further detail the SO selection process and the applicants’ participation.

27In broad terms the selection process is a three stage process. A first interview with three senior staff referred to as “Bring your resume to Life” begins the process. If the first interview panel recommends the candidate they go to a second interview which involves the Director of Education, other senior staff and one or more Trustees. I understand that the Director can over-rule the first panel’s recommendation and direct the candidate go to a second interview. Finally the recommendations go to the Board of Trustees who discuss the candidates in camera and vote. Trustees then have the final say and can veto staff recommendations although this apparently does not happen often

28The first selection process occurred in the Spring and early Summer of 2008. The applicant was successful in the two interviews and was recommended to the Board of Trustees. The decision of the Board of Trustees to not select him for placement was made on May 21, 2008. The applicant believes that Trustee Atkinson, because of her years of experience as a Board politician was able to use her “political will to influence other Trustees to support the reprisals” against the applicant. It is reasonably clear from the material that the dispute between the applicant and a fellow Principal about his son from 2006 was amongst the factors that may have been in play during this selection process in 2008.

29The next selection process in which the applicant participated was in 2010 approximately two years later. In this instance the applicant did not make it past the first interview. The interviewers, Susan Wynter and Al Wolch had not been involved in the 2008 process. However the applicant believes the two interviewers were sensitive to the concerns of Trustees Bolton and Atkinson; that is they knew the Trustees had strong objections to his being selected for the QAP. The applicant also alleges that his SO at the time, Michael Smith, was not sufficiently supportive of him and adopted the view expressed by some other employee of the Board that the applicant was an “ABM”.

30The final selection process at issue in this case occurred in 2011 and it is not disputed at this stage that this allegation is timely. As I understand the facts as plead the applicant was foundto have performed poorly in the first interview but the Director of Education at the time directed that he move forward to the second interview. The applicant did not advance beyond the second interview.

31As indicated above the first selection process concluded, at least for the applicant on May 21, 2008 and the second on April 25, 2010. As previously noted the Tribunal has typically held that following the logic of the one year limitation in the Code a gap of more than 12 months will typically interrupt a putative series of incidents even if otherwise connected thematically. The only alleged incident of discrimination which might have occurred between 2008 and 2010 is the allegation that the applicant was told by Michael Smith that an unidentified individual, but an employee of the Board, had described the applicant as an “ABM” at some unknown prior time. There is no dispute that the comment was made about the applicant and that Mr. Smith told the applicant about the comment at some point after it was first said in his presence. Beyond that the parties disagree significantly about the context and significance of the remark.

32In the Application and Reply to the Response there is no date attached to this alleged incident. As can be seen from the lightly paraphrased version of the narrative it is appears to be set in the context of the 2010 SO selection process.

33In his will say filed in December 2013 the applicant does not relate this conversation to any particular event or incident and the will say appears to make no reference to the 2010 SO selection process. The will say also suggests that Mr. Smith asked the applicant about his being an “ABM” which is somewhat different than the applicant being told that he was perceived by someone as an “ABM”.

34In order to clarify when this conversation might have occurred I directed that the parties provide affidavits from the applicant and Mr. Smith setting out their recollections of when the conversation might have taken place. The applicant took the position that to the extent necessary I should determine this particular factual dispute on the basis of the affidavits. The applicant did not request the opportunity to cross examine Mr. Smith on his affidavit. The respondents made no comment in response to the applicant’s position on this issue.

35In his affidavit the applicant does not describe the conversation in any detail but states simply that the information was provided to him by Mr. Smith. The applicant does attempt to situate it in time by reference to a number of other issues and inter-actions with Mr. Smith. The applicant continues to assert that this conversation took place in March or April 2009 and provides a context for the comment. The applicant also says that it could not have occurred after the 2010 SO selection process because the applicant was concerned with his application for a CCP position and Mr. Smith planning his retirement.

36In his will say Mr. Smith situated this discussion as part of a debrief after the 2010 candidate selection process had concluded for the applicant ie. Some- time in the early summer 2010. In his affidavit Mr. Smith revises his evidence and now states that the conversation would have taken place prior to 2010 candidate selection process in a discussion about entering the process in December 2009. Mr. Smith takes issue with the applicant’s view of the timing of the conversation stating that it would not have taken place in the context suggested by the applicant because there would have been no reason to be talking about how others perceived the applicant in that context.

37While the applicant’s version of events is a plausible one I find that it is more likely than not that it did take place in relation to the 2010 process. I have come to this conclusion for a number of reasons.

38To begin with in the Application it is reasonably clear that the applicant had placed the conversation in relation to the 2010 SO selection process and that was not altered in any of the subsequent pleadings until the issue was squarely raised by me at the hearing when I directed the applicant to tell me what allegation(s) he was relying on between the SO selection process in 2008 and those said to have occurred in 2010.

39I have also considered that the applicant’s characterization of this event has changed somewhat over time which in my view casts some doubt on his ability to accurately recall when the conversation took place. So while in the Application he alleges that Mr. Smith told him he was perceived by someone as an “ABM” he now states in his will say filed in December 2013 that “Superintendent Smith humiliated “the applicant” when he asked him about being an “ABM”.

40While it is possible that the issue might have arisen in the context the applicant has placed it, it seems to me more likely than not that it would have taken place as Mr. Smith contends and as framed in the Application, in relation to the 2010 SO selection process.

41I am also concerned about how this allegation is linked to other alleged incidents in this putative series of incidents – is it an incident in a series of incidents of discrimination? I have carefully considered the applicant’s submissions on this point and have concluded that this allegation cannot be linked to the allegation of discrimination in the 2008 SO selection although it may potentially be linked to subsequent incidents.

42I have come to this conclusion for a number of reasons. This is a particular kind of allegation which is difficult to characterize in this context. It is a statement of some unidentified person’s view of the applicant. I appreciate that the applicant takes the position that Mr. Smith shared this view of the applicant and subsequently acted on this biased view, but this statement of opinion is otherwise unconnected to any particular incident. Significantly, beyond the fact that it was said, we know and will know nothing else about the comment itself. We do not know who actually made the comment nor do we know when it was made or the context in which it was made. There is accordingly no evidence that anyone involved in the 2008 SO selection process or any of the other prior events described by the applicant was a party to the comment or aware of it. At best the evidence will be that the comment was made by an employee of the respondent Board and that it was made in the presence of Mr. Smith a member of senior staff. Mr. Smith played no role in the 2008 SO selection process and was not the applicant’s SO at the time. It is also important to recall that if there was discrimination in the 2008 SO selection process it was discrimination by one or more Trustees not staff. There is no allegation that any Trustee made the comment or was aware of it. In the absence of any evidence linking the comment to a prior specific act of discrimination or more specifically to anyone involved in the 2008 SO selection process the comment is no more connected to the 2008 SO selection process than the assertion that there may be individuals employed by the respondent Board who are anti-black racists.I find that the allegation with respect to the 2008 SO selection process is untimely being unconnected to any thematically similar allegation prior to 2010 and the subsequent SO selection process. I make this finding largely because I am unable to find any connection between the “ABM” remark and that prior incident. The fact that it was relayed to the applicant may have been discriminatory as alleged but there is no factual nexus between the remark being made and the 2008 SO selection process. I also find that the comment was related to the applicant after April or May 2009 creating a temporal gap in excess of 12 months after the 2008 SO selection process.

43I have also considered the application of the logic of one year time limit to the Code in these circumstances. I acknowledge that there are Tribunal Decisions which suggest that it is merely a guideline and others where the guideline appears to have been ignored. I appreciate that the statute is not precise in this regard and that unlike section 34(1)(a) there may be some discretion and hence some flexibility when considering a significant temporal gap in the course of an alleged series of events. However it seems to me, as I concluded in Chintamen v. Toronto District School Board, 2009 HRTO 1225, that the logic of the section is compelling - that a gap of one year or more will generally interrupt a putative series of incidents. If the applicant had filed his Application in December 2009 or May 2010 alleging discrimination in the 2008 SO selection process it would have been out of time. It is not clear how that fact can be overlooked or that an Application that would have been out of time can be saved because a further event occurred one or more years later.

Good Faith

44The applicant argues that the delay in not raising his issues going back to 2005 was all incurred in good faith. The applicant argues that the public expectation shared by him is that the respondent Board and its staff should act in a non-discriminatory way at all times. The applicant states that he has relied on his reasonable expectation that the respondents Board would adopt better and non-discriminatory practices.

45I am not satisfied that the applicant has provided a good faith explanation for the delay in bringing forward the untimely allegations in this case. I note again that the applicant is a sophisticated individual who was clearly aware of his rights. I appreciate the applicant’s submission that it was his reasonable expectation that the respondent Board would comply with the Code but it is also apparent that from the applicant’s perspective they repeatedly did not do so. I would also observe that if such a claim were accepted as a good faith explanation for delay the time limits in the Code would become largely meaningless. This is precisely the concern addressed in Miller, above. What employee does not expect that their employer will comply with the law?

46The applicant also argues that there is no substantial prejudice but given my conclusions with respect to the good faith explanation of the applicant there is no need to deal with this issue.

Systemic Discrimination and Employment Equity

47The respondents complain that the applicant is seeking to transform this Application from a complaint by the applicant of differential treatment of him and reprisal in respect of various events into a claim of systemic discrimination against black employees of the respondent Board. As indicated above, beyond a brief statement asserting that the applicant has experienced systemic discrimination there are no facts plead in the Application or Reply which would support such a claim. I accept the applicant’s submissions that these issues could have been raised in this Application but in my view they were not. The applicant is correct that the respondent has proposed calling some statistical evidence to support its position that it has not discriminated against the applicant. The applicant himself has requested further information with respect to the representation of Blacks and other racialized groups in the senior management ranks of the respondent Board. I agreed at the time that some of this material might be arguably relevant to some of the issues in the case, but given the pleadings it is only marginally relevant as background to the central issues in this case. As discussed above the applicant does not argue that he experienced systemic discrimination but rather that four individuals because of their place in the respondent organization were at various points able to frustrate his career ambitions and in other respects discriminate against him.

Next Steps

48The Registrar will schedule three days to hear evidence with respect to the remaining allegations in this Application.

49Despite my conclusions above it may be necessary to hear evidence with respect to some of the incidents said to have occurred prior to 2008. The dispute between the applicant and a colleague in 2006 may have played a role in some of the subsequent incidents. It also appears to be clear from the material that there was a Code issue raised by the applicant which may have come to the attention of Trustee Atkinson. There are also references in subsequent materials that refer back to past events which may include the disputes in 2006 and earlier.

50As regards the allegations of reprisal flowing from the applicant’s Code concerns in 2005-2006 as indicated it is not clear whether there is any evidence that anyone beyond the applicant his SO and the respondent’s Board human rights office were aware that he was considering making a complaint about his treatment. In the absence of evidence that Trustee Bolton or any other Trustee was aware of his Code concerns there may be no basis to this aspect of the reprisal claim. In order to ensure the orderly adjudication of this Application the applicant is directed to amend his will-say to include his evidence with respect to this question – in particular his evidence with respect to why he believes Trustee Bolton (or some other Trustee) would have been aware of his Code concerns at the time (or at any material time subsequently).

ORDER

51The allegations with respect to the 2008 SO selection process are dismissed on the basis of delay.

52Any allegations of discrimination said to have taken place prior to 2008 are also dismissed for delay.

53The applicant is directed to amend his will-say to include his evidence regarding the basis for his belief that Trustee Bolton (or some other Trustee) would have been aware of his Code concerns in the 2005-2006 school year (or at any material time subsequently).

54The Registrar will schedule a three day hearing to begin the evidence in this case.

55I am not seized of this case.