Lois-Ann Kohar v. The Hamilton Wentworth District School Board, 2015 HRTO 1158

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lois-Ann Kohar

Applicant

-and-

The Hamilton Wentworth District School Board, Susan Mawson, George Leibbrandt, Jeffrey Thomas, Michelle Visca, Dorte Deans, Sharon Stephanian, Patricia Fulton, Nora Campbell, Jim Wibberley, Christopher Spence and Merv Matier

Respondents

DECISION

Adjudicator: Douglas Sanderson

Date: September 1, 2015

Citation: 2015 HRTO 1158

Indexed as: Kohar v. The Hamilton Wentworth District School Board

WRITTEN SUBMISSIONS

Lois-Ann Kohar, Applicant

Self-represented

1This is an Application filed on June 7, 2015 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability, association with a person identified by a prohibited ground of discrimination and reprisal.

2The applicant is a former teacher employed by the respondent school board. In the Application, the applicant complains that students with disabilities have been subject to abuse by the personnel of the respondent school board from 1999 to present. The applicant describes her attempts to advocate on behalf of disabled students in the respondent school board over several years. The applicant also complains of the alleged consequences her advocacy has had for herself, including the termination of her employment in 2004. The last incident described in the Application is that, in September 2014, the respondent school board published a current staff list that included people whom the applicant alleges the respondent school board represented as no longer being in its employ. The applicant’s position is that these people had abused students with disabilities, which is why the respondent school board stated that it removed them from employment. The applicant alleges that the school board made this representation in the course of a previous Application to the Tribunal. I note that the previous Application, 2013-15312-I was dismissed for delay. See Kohar v. Hamilton Wentworth District School Board, 2013 HRTO 1995.

2By letter dated November 3, 2014, the Tribunal notified the applicant that the Application may be outside the Tribunal’s jurisdiction because it is not clear what is alleged to have occurred on September 1, 2014 (the last alleged incident of discrimination) or that this incident amounts to an incident of discrimination within the meaning of the Code. The Tribunal also noted that the Application does not allege that any of her rights have been infringed and the Application was not made on behalf of another person or persons, pursuant to section 34(5) of the Code. The Tribunal directed the applicant to file written submissions addressing these issues by August 26, 2015. The applicant filed her written submissions on August 21, 2015.

The Applicant’s Submissions

3The applicant submitted that she continues to advocate on behalf of minors and students with disabilities. The applicant submitted an Application on Behalf of Another Person (Form 27). At Part C of the Form (Name and Contact Information of the Person Who is Consenting to having the Application brought on their behalf), the applicant states “Minors / Mentally handicapped students of the Hamilton Wentworth School Board”. At Part D of the Form (Consent to a Section 34(5) Application), the applicant states “Consent is implied under The Criminal Code of Canada, The Education Act of Ontario”. The applicant submitted that consent is not required because it is implied under the Criminal Code of Canada and pursuant to the concept of “in loco parentis” as described by the Education Act. In that regard, the applicant submitted that teachers are expected to act as a careful parent would and have the legal authority to carry out this duty. The applicant also submitted that the Application is in the public interest.

4The applicant summarized her allegations and also submitted that she was seeking to amend her Application. The applicant submitted that she wished to add the grounds of creed, gender identity and age. The applicant submitted a further incident of discrimination was identified in an article in the Hamilton Spectator, dated July 30, 2015, entitled “Parents fret about care of diabetic school kid – Children as young as 7 left to manage the disease” to the effect that proper medical care is not provided by teachers.

5The applicant stated that she suffered reprisals as a result of her previous human rights application and because she refused to infringe the rights of students, staff and the Jewish Community. The applicant submitted that she has suffered discrimination because of her association with mentally handicapped minors and students. The applicant went on to describe the remedies she seeks in this Application.

Analysis and Decision

6An application will only be dismissed at a preliminary stage if it is “plain and obvious” on the face of the application that it does not fall within the Tribunal’s jurisdiction. See Masood v. Bruce Power, 2008 HRTO 381. In my view, it is plain and obvious that this Application is not within the Tribunal’s jurisdiction and must be dismissed.

No Standing

7Much of the Application describes the applicant’s concerns that the respondents have violated and continue to violate the human rights of unnamed minors and students with disabilities. In my view, the applicant clearly has no standing to bring such an application. Section 34(1) addresses an individual’s standing to bring an application on his or her own behalf:

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,

[Emphasis added]

8Therefore, to have standing to bring an application under section 34(1) of the Code, an applicant must allege that his or her Code rights have been infringed.

9A person whose rights have not been infringed may not file an application that he or she believes to be in the public interest. Only the Ontario Human Rights Commission has standing to bring “public interest applications”, pursuant to section 35 of the Code, which states as follows:

35. (1) The Commission may apply to the Tribunal for an order under section 45.3 if the Commission is of the opinion that,

(a) it is in the public interest to make an application; and

(b) an order under section 45.3 could provide an appropriate remedy

A person whose rights have not been infringed may bring an application on behalf another person whose Code rights may have been infringed, pursuant to section 34(5):

(5) A person or organization, other than the Commission, may apply on behalf of another person to the Tribunal for an order under section 45.2 if the other person,

(a) would have been entitled to bring an application under subsection (1); and

(b) consents to the application.

(6) If a person or organization makes an application on behalf of another person, the person or organization may participate in the proceeding in accordance with the Tribunal rules.

(7) A consent under clause (5)(b) shall be in a form specified in the Tribunal rules.

(8) An application under subsection (5) shall be made within the time period required for making an application under subsection (1).

10The applicant purports to have filed this Application on behalf of unnamed minors and students of the respondent school board and in the public interest. The applicant is not entitled to bring an application in the public interest. No one has consented to the applicant filing an application on his or her behalf and minors do not have the capacity to bring applications on their own behalf in any event. The Form 27 the applicant filed does not comply with the Tribunal’s Rules and in my view consent to bring an application cannot be implied. I find no merit in the applicant’s submission that the standard of care teacher must apply when dealing with students in the course of his or her duties as a teacher confers upon the applicant to commence legal proceedings on behalf of students. In my view it is plain and obvious that the applicant does not have standing to bring this Application on behalf of anyone else. Consequently, all the allegations in the Application alleging infringement of the human rights of students in the respondent school board are dismissed.

Delay

11Section 34 of the Code also sets out the time limits for filing an application as follows:

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.

12The applicant does make allegations of infringements of her own rights, but it is plain and obvious that these allegations must be dismissed for delay. These allegations consist of her dismissal from employment in 2004 for her advocacy on behalf of students with disabilities and because she refused to infringe the rights of students. The applicant also alleges that her union, the Ontario Secondary School Teachers Federation (“OSSTF”), did not provide her with the same level of representation as it did for male teachers, but the OSSTF is not a respondent to this Application. The termination of the applicant’s employment occurred many years prior to the filing date of this Application.

13The only allegation in the Application that comes within the one year time limit is that in September 2014 the respondent school board’s staff list included several people the applicant understood were no longer employed because of their abuse of students. The applicant also seeks to add a new allegation, i.e., the Hamilton Spectator article of July 30, 2015. The applicant did not explain how either of these matters could amount to an infringement of her Code rights and in my view it is clear that they are further examples of her attempts to advocate on behalf of students. Accordingly, neither the school board’s staffing list nor the newspaper article are “incidents” of discrimination for the purposes of section 34(1)(b). As the Application contains no timely incidents of discrimination, there cannot be a “series of incidents” under section 34(1)(b).

14Pursuant to section 34(2) the Tribunal may accept jurisdiction for an application that is filed after the expiry of the time limit if it is satisfied that the delay was incurred in good faith. To establish “good faith” the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241. The applicant provided no explanation for the delay in filing an Application regarding the alleged infringements of her rights. In these circumstances, I find that it is plain and obvious that the applicant does not have a good faith explanation for the delay in filing the Application.

15The Application is dismissed.