C.A. (Litigation Guardian of) v. Toronto Catholic District School Board, 2015 HRTO 1017

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

C.A. as represented by her Litigation Guardian M.A. Applicant

-and-

Toronto Catholic District School Board Respondent

-and-

Ontario English Catholic Teachers’ Association Intervenor

INTERIM DECISION

Adjudicator: Mark Hart Date: July 30, 2015 Citation: 2015 HRTO 1017 Indexed as: C.A. (Litigation Guardian of) v. Toronto Catholic District School Board

WRITTEN SUBMISSIONS

C.A. as represented by her Litigation Guardian M.A., Applicant Mohamed Doli, Counsel

Toronto Catholic District School Board, Respondent Paul Matthews, Counsel

Ontario English Catholic Teachers’ Association, Intervenor Jerry Raso, Counsel

1This is an Application filed on June 14, 2013 and completed on July 21, 2013 alleging discrimination with respect to services because of race and colour contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2This matter currently is scheduled to proceed to a hearing on August 26, 2015.

3The purpose of this Interim Decision is to address a number of outstanding requests in this matter: (1) the respondents’ request for removal of personal respondents; (2) the request by the Ontario English Catholic Teachers’ Association (“OECTA”) to intervene in this proceeding; and (3) the applicant’s request for production of documents and information. I will address each of these requests in turn.

4I also will set out the issues that I would like the parties to address at the hearing on August 26, 2015 and the manner in which I propose to proceed with that hearing.

REQUEST TO REMOVE PERSONAL RESPONDENTS

5By Request for Order dated January 16, 2014, the respondents requested that the two named personal respondents be removed as parties to this proceeding. This request is supported by OECTA. The request is opposed by the applicant.

6In making this request, the respondents rely upon the well-established criteria for removal of a personal respondent as set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5, whereby this Tribunal applies the following factors when considering such requests:

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?

3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

5. Would any prejudice be caused to any party as a result of removing the personal respondent?

7With regard to the first three factors: there is a corporate respondent, the respondent School Board, alleged to be liable based upon the alleged conduct of the two personal respondents; no issue has been raised concerning the School Board’s alleged deemed or vicarious liability for the conduct of the personal respondents; and there is no issue as to the ability of the School Board to respond to or remedy the alleged infringements.

8The issue is whether there is any compelling reason to continue the proceeding as against either personal respondent. With regard to the school principal, he is alleged to have been involved in failing to investigate an alleged incident of racial bullying in 2008, in the school’s response to an incident in early November 2010, in the announcement of the school valedictorian in June 2012 and in meetings with the applicant and her family regarding the failure to award valedictorian award to her. In each of these alleged incidents, this individual was acting in his capacity as the school principal in relation to issues brought forward by a student’s family. In my view, this does not provide a compelling reason to continue this proceeding as against the school principal as a personal respondent. Nor do I see any prejudice that would be caused to the applicant due to the removal of this individual as a personal respondent. Accordingly, I have removed the school principal as a personal respondent and the title of proceeding has been amended accordingly.

9With regard to the Grade 7-8 teacher, I am aware that he is alleged to have been involved in the alleged 2008 bullying incident, in the November 2010 incident, in the allegations regarding marks and monthly awards, and that there is a specific allegation raised by the applicant that he made a discriminatory comment to her in relation to the decision to select another student as valedictorian. However, in I.A. v. Waterloo Catholic District School Board, 2011 HRTO 1877, the named personal respondent also was a teacher alleged to have made discriminatory comments to a student, but this alone was not found to be a sufficient basis to support continuing the proceeding against her as a personal respondent, on the basis that she was acting in the course of her duties as a teacher and the School Board had assumed liability for her actions. Similarly, in the instant case, the Grade 7-8 teacher was acting in the course of his duties and the respondent School Board has assumed responsibility for his actions. In these circumstances, it is my view that there is no compelling reason to continue the proceeding against the Grade 7-8 teacher personally. I also find that no prejudice is caused by the removal of this individual as a personal respondent. Accordingly, I also have removed the Grace 7-8 teacher as a personal respondent and the title of proceeding has been amended accordingly.

OECTA’S REQUEST TO INTERVENE

10By Request to Intervene dated January 20, 2014 and filed with the Tribunal on December 2, 2014, OECTA has requested leave to intervene in this proceeding. This request is opposed by the applicant.

11This Tribunal has routinely found that a union such as OECTA nearly always has an interest in an application involving a member of one of its bargaining units and that, absent exceptional circumstances, a union will be granted intervention status when it seeks it: see Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131 at para. 13, and cases citing that decision.

12In the instant case, the applicant is seeking non-monetary remedies in this proceeding, which include that the Grade 7-8 teacher be disciplined, reprimanded or dismissed and that a committee be established to inquire into allegations of alleged bias, racism and favouritism at the school, among other things. These clearly are remedies that potentially affect the interests of OECTA and its members and alone provide sufficient justification for granting leave to intervene.

13Accordingly, OECTA is granted leave to intervene in this matter and shall be allowed to participate in this proceeding regarding matters that affect the interests of OECTA and its members. This includes the right to cross-examine witnesses on such matters, and the right to call evidence and make submissions on such matters.

APPLICANT’S REQUEST FOR PRODUCTION

14By Request for Order dated December 29, 2014, the applicant has sought production from the respondent School Board of an extensive list of documents and information relating to the full scope of the allegations raised in the Application.

15In light of the manner in which I propose to deal with this proceeding and the issues I intend to address at the hearing on August 26, 2015, it is my view that it is premature to address the applicant’s request for production at this time. Depending upon the determination of the issues to be addressed at the August 26, 2015 hearing as set out below, the applicant may renew a production request if necessary or appropriate at a later time.

ISSUES TO BE ADDRESSED AT THE AUGUST 26, 2015 HEARING

16The Application as currently filed raises the following issues: (1) an incident of alleged racial bullying by other students in 2008; (2) an incident that occurred in early November 2010 where the applicant was left behind at a subway station while on a class field trip; (3) an alleged failure to receive monthly awards and an alleged suppression of her English marks when the applicant was in Grades 7 and 8; and (4) the school’s decision not to select the applicant to receive the valedictorian award in June 2012.

17As previously indicated, the Application in this matter was originally filed on June 14, 2013. As a result, only the school’s decision not to select the applicant to receive the valedictorian award falls within the one year period for the making of an application under the Code pursuant to s. 34(1). As a result, this raises the issue of whether the allegations relating to events which are alleged to have occurred more than one year prior to the filing of the Application should be dismissed for delay. This raises two issues: (1) the extent to which any of the prior incidents can properly be regarded as forming a “series of incidents” that extends to and includes the timely allegation from June 15, 2012 when the school’s decision regarding the valedictorian award was announced and the ensuing events; and (2) if all or any of the prior incidents cannot properly be regarded as forming such a “series of incidents”, whether the delay in raising these allegations can be regarded as having been incurred in good faith within the meaning of s. 34(2) of the Code.

18In determining whether prior alleged incidents form part of a “series of incidents”, the Tribunal considers the following factors:

a. What is the last alleged incident of discrimination to which the Application relates?

b. Do the allegations relate to a series of separate and independent incidents of discrimination or do they relate to the continuing effect of a single incident of discrimination?

c. What is the nature or character of the alleged discrimination and is it part of a pattern or series of incidents of a similar nature or character?

d. What is the temporal gap between alleged incidents of discrimination?

See Garrie v. Janus Joan Inc., 2012 HRTO 1955 at para. 30.

19With regard to factor (c), a useful summary of the Tribunal’s approach is as follows:

When assessing whether the allegations relate to a “series of incidents”, the Tribunal will generally consider the nature of the events and whether they may reasonably be viewed as a pattern of conduct or are comprised of incidents relating to discrete and separate issues without some connection or nexus. See, for example, Baisa v. Skills for Change, 2010 HRTO 1621. In Pakarian v. Chen, 2010 HRTO 457 the Tribunal defined the word “series” as “a number of things or events of the same class coming one after another in spatial or temporal succession”. In my view a “series of incidents” may be considered to exist where the incidents share a common theme, similar parties and/or circumstances.” See Twyne v. Dominion Colour Corporation, 2013 HRTO 1769.

20With regard to factor (d), this Tribunal has held that a gap of more than one year between alleged incidents generally will be considered to interrupt the series: see for example Savage v. Toronto Transit Commission, 2010 HRTO 1360; Chintaman v. Toronto District School Board, 2009 HRTO 1225. This should not be regarded as a rigid rule: Henry v. Waterloo (Regional Municipality), 2011 HRTO 1927. However, where there is a significant gap between alleged incidents, this Tribunal nonetheless will find that the series is broken: Christie v. Trent University, 2013 HRTO 952.

21With regard to the issue of whether any delay was “incurred in good faith”, this Tribunal has held that the onus is on an applicant under s. 34(2) of the Code to satisfy this Tribunal that the delay in filing an application was incurred in good faith. This requires that the applicant provide some reasonable explanation for the delay: Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339. In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, this Tribunal held that an applicant is required to show something more than simply an absence of bad faith. In Miller, above, it was held that the one-year time limit is consistent with the policy objective that human rights claims should be dealt with expeditiously, and requires an applicant to act with due diligence when they seek to pursue a human rights claim.

22Accordingly, at the hearing on August 26, 2015, I will want to hear submissions and any relevant evidence from the parties on the issue of whether the allegations relating to incidents that are alleged to have occurred prior to the school’s decision regarding the valedictorian award in June 2015 should be dismissed for delay.

23In addition, with regard to all of the allegations raised in the Application, I will want to hear submissions from the parties as to whether any or all of these allegations should be dismissed as having no reasonable prospect of success. This Tribunal does not have the power to deal with or remedy general allegations of unfairness. The Tribunal only has the power to deal with discrimination that is prohibited by the Code. Discrimination in the legal sense requires proof that the respondent's alleged adverse treatment of the applicant is based, at least in part, on the applicant’s race or colour as alleged in the Application. In other words, there must be some reasonable basis to support that the protected ground is connected to the adverse treatment.

24In the instant case, I am concerned as to whether the applicant is able to prove that there is a connection between what the respondent is alleged to have done, and the grounds of race and colour cited in the Application. That is, although the applicant may believe that the conduct of the respondent is connected to these grounds, it is not clear that there is evidence available to the applicant to prove the connection.

25I am well aware that there are two specific allegations where the applicant claims to have direct evidence of alleged discriminatory statements. One of these statements is alleged to have been made by the Grade 7-8 teacher directly to the applicant. Another of these alleged discriminatory statements is alleged to have been made by the school principal on June 22, 2014 when a letter was dropped off by a family member of the applicant regarding the applicant’s decision not to participate in the graduation ceremony. At the hearing on August 26, 2015, I will want to hear the evidence regarding these two alleged statements, which will necessitate calling the applicant and the family member who dropped off the letter as witnesses to appear and give evidence at the hearing and be cross-examined. In determining whether the allegations raised in the Application have a reasonable prospect of success, I will assess the credibility of the evidence of these two witnesses regarding whether there is a reasonable basis to support that either of these two alleged comments were made.

26I also am prepared to hear any evidence from the applicant or her mother providing an explanation regarding any delay in raising the allegations set out in the Application, which also will be subject to cross-examination.

27After hearing any evidence on these points, I will then hear the parties’ submissions on the issues of delay and reasonable prospect of success, starting with the applicant, then hearing from the respondent, then any submissions from OECTA (but only within the scope of the intervention I have granted), and then concluding with reply submissions from the applicant.

ORDER

28For the foregoing reasons, I hereby make the following order:

a. The respondents’ request for removal of the personal respondents is granted; and

b. OECTA’s request for leave to intervene is granted.