Human Rights Tribunal of Ontario
Between:
Abimbola Omotoso Applicant
-and-
York Region District School Board and Ann Gnoinski Respondents
and
Canadian Union of Public Employees Intervenor
Decision
Adjudicator: Geneviève Debané Date: September 11, 2015 Citation: 2015 HRTO 1208 Indexed as: Omotoso v. York Region District School Board
Appearances
Abimbola Omotoso, Applicant Linus Ali, Counsel
York Region District School Board and Ann Gnoinski, Respondent Patty Murray, Counsel
Canadian Union of Public Employees, Intervenor Alycia Shaw, Counsel
Background
1This Application alleges discrimination with respect to employment because of race and colour contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The respondents denied any violations of the Code.
2The applicant was hired pursuant to a contract of employment dated August 30, 2012 as a “100% temporary/term position of Assistant to the Developmentally Handicapped” from September 4, 2012 until May 31, 2013 with the York Regional School Board (the “Board”). The personal respondent, Ann Gnoinski, was the principal at the school where the applicant was employed. Since this decision involves minor students enrolled at the Board, I have tried to write this Decision in a manner that does not identify the name of any student or the name of the school.
3The applicant’s contract provided that the employer could terminate the applicant’s employment without notice if it had just cause to do so. Otherwise, the respondent could terminate the applicant’s employment at any time during the term upon two weeks’ notice or pay in lieu of notice. On November 26, 2012, the Board advised the applicant that her employment was being terminated effective immediately because her skill set and abilities that she demonstrated did not meet the needs and expectations of the Board. The applicant was paid two weeks’ pay in lieu of notice.
4The Application alleges that the applicant was discriminated against during the course of her employment, and specifically that her employment was terminated. The Application also alleges that the applicant was denied a hearing prior to her termination and that this was contrary to the rules of natural justice and s. 7 of The Canadian Charter of Rights and Freedoms.
5During opening submissions, the applicant, for the first time, took the position that the personal respondent almost immediately, upon the applicant’s commencement at the school, decided that she was not suited to her job and that this decision was made at least in part because of the applicant’s race and colour.
6During closing submissions, the applicant’s counsel took the position that throughout her employment the applicant had been subjected to harassment by the personal respondent because she was being overly monitored by her.
7This matter proceeded to hearing. On the first day of hearing the Tribunal granted the Canadian Union of Public Employees intervenor status on the basis that their request was unopposed by the parties. The intervenor made no other submissions and participated only as an observer.
The Law
8During closing submissions the applicant’s counsel focussed his argument in support of his belief that the applicant had made out a case of prima facie discrimination. He argued that when the Tribunal issued a Registrar’s letter on January 30, 2014, which denied the respondents’ Request for a summary hearing, that this meant that the Tribunal had made a finding that the applicant had a prima facie case of discrimination. I note that this is the Tribunal’s usual practice when it declines to order a summary hearing.
9In this case, the Tribunal heard all of the parties’ evidence with respect to all of the issues in dispute. The determination of whether the applicant has made out a prima facie case of discrimination is not the ultimate issue that the Tribunal must decide. The issue before me is whether or not the applicant has satisfied the legal burden of establishing, on a balance of probabilities, that her race and/or colour was a factor in her adverse treatment by the respondents. The Ontario Court of Appeal stated in Peel Law Association v. Pieters, 2013 ONCA 396 at paras. 86 to 88 as follows:
First, I do not agree with counsel’s reading of Shaw. In Shaw this court did not purport to regulate how a tribunal should proceed with its analysis of the evidence. How a tribunal should conduct its analysis at the end of a fully contested case was not an issue in Shaw. In Shaw, the court rejected the respondent’s contention that the tribunal was obliged to declare whether the prima facie test was met at the end of the applicant’s case and before the respondent presented his case. Lang J.A. rejected that contention saying at para. 28 “Where, as here, the person alleged to have discriminated chooses to give evidence, the Adjudicator must decide the case based on all the evidence.”
I would leave to tribunals how they structure their analysis of the evidence. No matter how a particular tribunal conducts its analysis, at the end of the day, the tribunal must consider all the evidence that both supports and undermines the application in determining whether discrimination has occurred.
The approach respondents’ counsel advocates would make the question whether there is sufficient evidence to support a prima facie case indistinguishable from the ultimate question whether, at the end of the day, discrimination has been established. Both analyses would be identical because both would consider all the evidence in the record. Instead of conducting the analysis twice, it would make better sense for the tribunal to proceed directly to the ultimate question whether, on the whole of the evidence, there is discrimination.
10In this case, since I have heard all of the parties’ evidence I find that, in the words of the Court of Appeal, it “makes better sense” for the Tribunal to decide the ultimate issue of whether the applicant has satisfied her burden of establishing on a balance of probabilities that the respondents have discriminated against her contrary to the Code. This determination and assessment of the evidence cannot be fettered by the fact that another Vice-chair, who did not hear any evidence, after reviewing the pleadings filed by the parties declined to direct that a summary hearing be held in this matter without any reasons. There is no merit at all in the suggestion that by declining to hear an issue at an early stage in the proceeding - essentially a procedural decision - the Tribunal is somehow precluded from determining that very issue at a later stage.
11The Tribunal heard the evidence of the applicant, the personal respondent Ann Gnoinski, Katherine Chewchuk, Nicole Kay and Rose McCarthy. In this case there are differences with respect to some the issues in the Application. This includes the applicant’s assertion that she did not have any performance issues during the course of her employment. One of the most often citied cases in relation to the factors and approach to assessing credibility is Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). At p. 356-357, the British Columbia Court of Appeal stated:
…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried 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 the 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 (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.
12I also considered the factors identified by the Tribunal in Cugliari v. Clubine and Brunet, 2006 HRTO 7, at para. 26: “the motives of the witnesses, the relationship of the witnesses to the parties, the internal consistency of their evidence, and inconsistencies and contradictions in relation to other witnesses’ evidence.”
The Evidence
13The applicant testified on her own behalf and called no other witnesses. The applicant self-identifies as Black. She successfully attended Humber College obtaining a degree as a Developmental Service Worker. In October 2011, the applicant obtained a contract with the School Board working as a casual employee, and as a result of which she worked at a number of different schools.
14In September 2012, she was offered a temporary contract at the school in question. The respondent, Ann Gnoinski, was the principal of the school at that time. The applicant was hired to work with kindergarten students with exceptionalities. There is a wide range of different aptitudes that each student had including some that were non-verbal and were considered to be potential “runners”.
15Her recollection of her employment at this school was that she had no performance issues and worked well with her students. She testified that she had no meetings with her employer in which performance deficiencies were discussed and that she had no documented written performance issues.
16She does recall that she met with the principal once to discuss what occurred during an art class. Also present at that meeting was the chief steward of the union and “another lady from the school” whose name she does not recall. She was told that she should not have been drawing. The applicant explained that she was drawing in the five minutes that was part of her break and that the other students had finished their work. The applicant also recalls that she was told that she was putting the art object in the wrong hand of one of the students. The applicant testified however that that student preferred to use the other hand. During cross-examination the applicant denied that anything else was discussed with her including the principle of “guiding hands”, which is that students should be encouraged to maintain their independence.
17During her examination-in-chief, she was asked by her counsel whether she recalled an incident in a maze on a field trip with the students. This was an incident that was detailed in some of the respondent’s witness statements. That applicant testified that she recalled that she was sitting in a truck with three students another Educational Assistant (“EA”) and the parent of a student. One of the students, who was not assigned to her, ran out of the truck the opposite way from her. The student’s mother ran after him and caught up to him. The applicant testified that she could not stop this student because he ran in the opposite direction. During cross-examination the applicant was asked about the incident in the maze during the school trip. At first the applicant denied that the students went into a maze. Then the applicant testified that she had misunderstood the word “maze” for “maize” (which means corn) and that the students were indeed permitted to enter the maze. When counsel for the respondents’ put to her that she had failed to react when a student ran out of the maze, the applicant testified that this incident never happened.
18On the morning of November 20, she was in the school yard when after the school bell rang one of the students ran outside of the yard into the street. The applicant testified that she was holding the hands of two students who were “runners” to assist them to come inside the school and that she screamed for someone to get the student. Another school employee, Nicole Kay, ran outside the school yard and intercepted the student. The applicant testified that she could not let go of the students’ hands because they also would have run. She explained that she had been informed that she had to hold the hands of the students to bring them into the school when they were outside or they would run when the bell ran and that these children had been assigned to her. The applicant denied that she would hold students in the school unless it was appropriate to do so.
19During her cross-examination the applicant recalled that another employee said after this incident that “she is not watching out for them” to which the applicant responded that she did her job and looked after the students. The applicant also maintained that all of the other employees in the school yard that day were white, though at first she testified that she knew this, she then conceded that it could be possible that she was mistaken. On this point in re-examination from her counsel she explained that she “saw them as white” and that she “recognized no other colour”.
20On November 26 the applicant’s employment was terminated. The applicant believes that she was fired because she was the only black employee in the school yard working that day. She believes that she was unfairly punished by the respondent for this incident.
21Katherine Chewchuk testified that she was one of two Special Education Teachers assigned to teach JK/SK. Her classroom consisted of her and two EAs. She explained that the applicant was transferred into her class in October of that year. She explained that she had some concerns with respect to the applicant’s performance because: the applicant did not use the principle of “guiding hands”; that she did not scan the room to monitor all of the students and that if there was an incident involving a child in close proximity to the applicant that she would not intervene. She testified that she coached the applicant on a number of occasions and that the hope was that the applicant would learn from the other more experienced employee in the classroom.
22Ms. Chewchuk explained that in the month of November she and the other EA were so concerned about the applicant’s work performance that they agreed that they would take their lunch breaks in the classroom. They both felt that it would be unsafe if they were left alone with the applicant to supervise the classroom.
23Ms. Chewchuk testified that she was present at the field trip in which the students visited a maze. She testified that the applicant was so focussed on the student that she was assigned that she failed to react when one of the other students ran out of the maze entrance that she was stationed at. Ms. Chewchuk testified that the student ran past the applicant and that this was another example of the applicant’s inability to scan the area to assess potential safety issues.
24Ms. Chewchuk also testified that she received a complaint about the applicant from the art teacher. The art teacher recounted that a student pulled the hair of the other EA and that the applicant failed to assist her and instead was doing her own art work.
25Ms. Chewchuk explained that she went to speak to the principal about these issues and her concern about the applicant’s performance. She testified that this was causing additional stress on her and the other EA and characterized the situation as “exhausting” especially in light of the fact that they could no longer take breaks outside of the classroom.
26She attended a meeting with the applicant and Ms. Gnoinski on October 19 of that year. She testified that at this meeting they explained to the applicant once again the principle of guiding hands and that: she should not hold the students hands or arms; that she should try to encourage the independence of the students; that she should not focus her attention only on one child but that she should scan the area and monitor all the students; and that she should take more initiative. Ms. Chewchuk testified that the applicant’s performance did not improve after that meeting.
27Nicole Kay, an Assistant for the Developmentally Handicapped, testified that she was in the school yard on November 20 when the student ran outside of the yard. She stated that the applicant did not react at all and did not scream when this happened. She testified that though she was assigned to her own students, the role of all of the employees is to monitor all of the students. She explained that everyone is responsible for the safety of the students. During cross-examination she admitted that she was not necessarily watching the applicant’s reaction during this incident but she maintained that she did not hear anyone else yell.
28Ms. Gnoinski testified that this was the first year that full-day kindergarten was being introduced in the school and that she was heavily involved in the beginning of September to ensure a smooth integration of the kindergarten class. From the beginning she had concerns with respect to the applicant’s capability of handling the responsibilities of her position.
29Ms. Gnoinski explained that on the first day she was called into the applicant’s classroom because the teacher had concerns about the applicant’s performance in that she did not permit students to express autonomy. Ms. Gnoinski observed the applicant holding the children’s hands.
30On September 6, she wrote an email in which she asked that the applicant be reassigned because “she is a delightful lady, very eager and happy to be with us; however, she requires significant training with teacher and EA modeling of how to work with the children. There have been some concerns shared with me around her approach to working with the children.” However, no one at the Board responded to Ms. Gnoinski’s email.
31Ms. Gnoinski testified that she eventually transferred the applicant to Ms. Chewchuk’s class so that she could work and observe the skills of the more experienced EA. She also arranged for the Board’s Autism Specialists to come to the classroom to provide more training.
32Ms. Gnoinski testified that on a number of occasions, during her walkabouts in the school, that she saw the applicant restricting or directing students’ movements with the use of her hands and would not monitor the entire group.
33After Ms. Chewchuk approached her she scheduled meeting with the applicant on October 20, 2012 during which they discussed with her various performance expectations. This included the principal of “guiding hands” and the need to monitor the entire classroom.
34On November 19, 2012, Ms. Gnoinski wrote a second email to the Board outlining her concerns with the applicant’s performance. She asked that the applicant be reassigned to another long-term placement since the “stress being placed on the current staff to take on the work and supervision of this EA is not providing the environment for learning that is appropriate for the children.”
35Ms. Gnionski did not witness the incident of November 20, 2012. With respect to the applicant’s assertion that she was the only black person in the yard that day, Ms. Gnoinski testified that out of the eight staff there was two south Asians, one Asian and one Jamaican (who is a black woman), in addition to the applicant.
36However, Rose McCarthy, one of the Employee Relations Managers with the Board, became involved. Ms. Gnoinski testified that she did not make the decision to terminate the applicant’s employment and that she only wished that the applicant be reassigned to another school.
37Ms. McCarthy testified that based on her review of the matter that it was appropriate to terminate the applicant’s contract because she was a temporary employee who was not subject to the just cause protections under the collective agreement, she had been coached and counselled and that there were safety concerns related to her apparent inability to supervise the whole classroom. She stated that she was not aware of the applicant’s race, colour or place of origin when she made this decision.
Decision
38The Tribunal has repeatedly stated that it does not have jurisdiction over all allegations of unfairness. It is not the role of this Tribunal to determine whether the termination of the applicant’s contract was for just cause or indeed justified. In this case, the Tribunal must determine whether any of the prohibited grounds claimed were a factor in the applicant’s adverse treatment.
39The Tribunal heard the evidence of two employees Ms. Chewchuk and Ms. Gnoinski who directly observed the applicant’s performance. The most compelling evidence that the Tribunal heard was from Ms. Chewchuk who worked directly with the applicant for almost two months. I accept that she had serious concerns with respect to the applicant’s performance, so much so, that she and the other EA had decided to take their breaks in the classroom. Both of these witnesses were consistent in their evidence that the applicant failed to follow the principle of guiding hands, lacked initiative and did not monitor all of the students as required.
40With respect to the events of November 20, I make the following observations. It is not my task to assign any blame for this unfortunate incident. However, based on the evidence of Ms. Kay, the applicant did not react appropriately when the child ran out of the yard. Further, at least one other employee said that to the applicant “she is not watching out for them”. This is from the applicant’s own testimony. However, I find it reasonable to conclude that for the respondents this was the last straw.
41The applicant called no witnesses to support her assertion that it was common practice to hold students hands, as alleged, or that indeed her performance was satisfactory. The only evidence that the applicant called on this issue was her own testimony. After hearing the applicant’s evidence, I find that she had difficulty recollecting events. For example, though it is possible that the applicant could not remember the exact date of the meeting that occurred in October, I note that the applicant could not remember that it was Ms. Chewchuk who attended that meeting. She testified that “it was some other school board person”. I note that the applicant worked for almost two months in Ms. Chewchuk’s class and should have been able to recall at least that it was her. Another issue with the applicant’s ability recollect events is that she could not recall exactly who was in the yard with her on November 20 or anything really about them.
42In contrast, the evidence of both Ms. Chewchuk and Ms. Gnoinski was consistent in that the applicant’s work performance was lacking including her supervision of the students. Further, Ms. Gnoinski’s evidence was consistent with the contemporaneous emails that she was sending at the relevant time.
43The applicant also relied on the fact that she was the only black employee involved in the November 20 incident. However, this evidence was disputed by the respondents who took the position that there were a number of other racialized employees working that day. The applicant’s evidence on this point was very vague but also with respect to whether these other employees were also contract employees or whether they were full-time employees who benefitted from the just cause provisions of the collective agreement. In my view, even if I were to accept the applicant’s position that she was the only Black employee working in the yard on November 20, I am satisfied that the applicant’s race and colour were not a factor in the respondent’s treatment of her.
44I prefer the evidence of the respondents and find that they had bona fide performance related concerns of the applicant. I do not find the applicant has established sufficient evidence to conclude that either her race or colour were factors in either respondents’ ongoing treatment of the applicant, or the Board’s decision to terminate her contract. These ongoing concerns were consistent with the concerns that arose from the incident on November 20, and the applicant’s role in this incident on that date. The applicant as a contract employee, did not benefit from the just cause provisions of the collective agreement and the Board elected to terminate this contract with notice.
45Accordingly, I find there is no reasonable basis to drawn any inference from circumstantial evidence that the applicant was treated differently from others in supervisory positions on the basis of her race or colour in relation to the November 20 incident, or in general. Having considered the matter, and preferring the evidence of the respondent witnesses, I find the applicant has not established on a balance of probabilities that her race or colour was a factor in the Board’s decision to terminate her employment.
46Counsel for the applicant took the position during closing argument that the applicant had been harassed by the respondent because she was being overly monitored by Ms. Gnoinski. With respect to these new allegations, I find that you cannot raise a new allegation during closing submissions, since this denies the respondents the opportunity to call evidence on the issue. However, I note that the applicant’s own evidence was that Ms. Gnoinski did not coach and counsel her and that she did not supervise her as alleged.
47As discussed above, it is the applicant’s burden to demonstrate that a prohibited ground was a factor in her adverse treatment by the respondent. Having considered all of the evidence I find that the applicant has failed to prove that the respondents infringed her rights under the Code.
Order
48The Application is dismissed.
Dated at Toronto, this 11th day of September, 2015.
“Signed by”
Geneviève Debané Vice-chair