Sharma v. Peel District School Board, 2015 HRTO 1308

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ruchi Sharma

Applicant

-and-

Peel District School Board and Elementary Teachers’ Federation of Ontario and Peel Elementary Teachers Local

Respondents

INTERIM DECISION

Adjudicator: Jennifer Scott
Date: October 2, 2015
Citation: 2015 HRTO 1308
Indexed as: Sharma v. Peel District School Board

WRITTEN SUBMISSIONS

Ruchi Sharma, Applicant
Self-represented

Peel District School Board, Respondent
Neal Patel, Counsel

Elementary Teachers’ Federation of Ontario, Peel Elementary Teachers Local, Respondent
Adam Beatty, Counsel

introduction

1This Application alleges discrimination with respect to employment because of race, colour, ancestry, place of origin, sex and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2This Interim Decision addresses the scope of the Application.

the facts

3The applicant commenced employment with the Peel District School Board (“PDSB”) as a teacher in 2003.

4In September 2004, the applicant moved to Royal Orchard Middle School (“Royal Orchard”).

5In September 2012, the applicant moved to Castlemore Public School (“Castlemore”).

6The applicant took two maternity leaves during the period 2010 to 2014.

7The applicant filed an internal human rights complaint with the PDSB in April 2014.

8The Application was filed with the Tribunal on August 22, 2014.

9The applicant left Castlemore at the end of September 2014. She has not returned to work.

10The applicant submitted many letters of resignation in November and December 2014. They have not been accepted by the PDSB.

analysis

11A number of issues have been raised regarding the scope of this Application. In their Responses, the PDSB and the applicant’s union, Elementary Teachers’ Federation of Ontario and Peel Elementary Teachers Local (the “Union”), have asked the Tribunal to dismiss many of the allegations in the Application for delay. The applicant has filed numerous Requests for Orders During Proceedings to amend the Application. The PDSB has filed a Request for Order During Proceedings to strike certain portions of the applicant’s Reply. In addition, the applicant has raised concerns about the materials filed by the respondents and regarding the hearing in this matter.

12A preliminary hearing took place on July 20, 2015, to hear the parties’ submissions on these issues. This Interim Decision addresses those issues.

The applicant’s request that the Tribunal investigate the time materials were filed by the respondents

13The applicant requested an investigation by the Tribunal into the time the respondents’ forms and emails (the “materials”) were filed with the Tribunal in order to determine whether the materials received by the Tribunal are the same materials as that provided to the applicant. The applicant raises this concern because there are different timestamps on the materials.

14During the preliminary hearing, I gave the applicant the opportunity to look at the Tribunal’s file in order to determine whether she has been provided with the same materials from the respondents that were filed with the Tribunal. The applicant advised that she would not review the Tribunal file unless there was an inquiry into the timestamp issue by the Tribunal.

15I decline to undertake an investigation into the timestamp issue raised by the applicant. What is important to the Tribunal is that the applicant has been provided with the same materials from the respondents that were filed with the Tribunal. There is no information before me that the applicant has been provided with different materials. The only alleged difference is the timestamps on the materials.

16It is not an effective use of the Tribunal’s time, nor is it required, to investigate why different computers or fax machines show different timestamps on the materials sent to the applicant and the materials filed with the Tribunal.

17However, in order to address any problems with the delivery of materials in the future, I confirmed with the applicant the email address that she wanted the respondents to use. I also acknowledged her request that large volume of documents should be sent by courier with signature required, and confirmed her mailing address. The respondents agreed to follow both of these requests.

The applicant’s request for interim remedies relating to the hearing

18The applicant made a number of requests regarding the hearing in this matter, including a request for summonses, a request that the hearing be held on her alleged dismissal and poisoned work environment, a request that the hearing be public, and a request that the hearing be recorded.

19Many of these requests are premature as the hearing has not yet been scheduled. I can confirm, however, that the hearing will be public. The applicant is directed to the Tribunal’s Practice Direction on Recording Hearings for information on recording hearings. Closer to the hearing date, the applicant can request summonses for the hearing. The hearing will take place on the allegations in the Application, as clarified in this Interim Decision.

The request by the PDSB to dismiss the allegations for delay

20The Application was filed in August 2014. In its Response, the PDSB submits that allegations before August 2013 are out of time and should be dismissed for that reason. The PDSB acknowledges that part of the Application is timely and will proceed.

21The PDSB submits that the allegations of discrimination set out in the Application concern two different schools in separate school districts, with different teachers and principals. Because of this, there is no nexus between the applicant’s experience at Royal Orchard and her experience at Castlemore. Thus, the applicant’s allegations cannot be considered a series of incidents under section 34 of the Code. If they are not a series of incidents, all allegations before August 2013 are untimely and should be dismissed for that reason.

22The applicant states her discriminatory treatment started in 2009 when she felt that she was being monitored at Royal Orchard. She alleges that the principal at Royal Orchard hired and promoted white teachers, who were in turn, given all of the leadership and educational opportunities within the school. The applicant alleges that she was targeted and claims that she overheard the principal of the school say that she could not wait to fire the applicant. The applicant alleges that she was monitored in her classroom.

23The applicant left Royal Orchard in June 2012 and went to Castlemore in September 2012. The applicant alleges that she lost positions to white teachers, specifically Grade 6 and ISSP, even though she was more qualified. She alleges further that white teachers were given leadership positions at the school, including access to conferences and school funds that included extra learning opportunities. The applicant alleges that after her maternity leave, she was not permitted to return to her regular classroom whereas a white teacher was permitted to keep her position. Finally, the applicant alleges that after filing her internal human rights complaint, she was reprised against by her principal when her evaluation date was changed to November 2012 instead of 2017.

24The applicant’s central complaint of discrimination is that she was not provided with the same opportunities for promotion and advancement as those provided to white teachers. She makes this claim in the context of her employment at two schools. The fact that the allegations take place at two schools does not mean that there is no nexus between them.

25In order to constitute a series of incidents within the meaning of section 34 of the Code, the incidents must be thematically related and occur in close temporal order or succession. In particular, the Tribunal has determined that lengthy gaps in time between incidents in an alleged “series” will interrupt the series. The Tribunal has often found that a gap of a year or more between incidents in a series will often interrupt the series.

26The applicant has alleged that during the period 2009 to 2014, white teachers were provided with educational and promotional opportunities that she was not provided with. In the Application, the applicant states that she gave up applying for positions while at Royal Orchard. This does not change the applicant’s allegation that the opportunities were provided to white teachers and not to her. The allegations at both schools are thematically related. There do not appear to be lengthy gaps between the allegations because it appears that the applicant is alleging that the provision of educational and promotional opportunities to white teachers was on an ongoing basis. For these reasons, I find that these allegations are a series of incidents under section 34 of the Code and are timely.

The request by the Union to dismiss the allegations for delay

27During the preliminary hearing the Union requested that the allegations against it be dismissed for delay or in the alternative, that they be dismissed because they are complaints about its failure to represent the applicant.

28In my view, it is not necessary to look at the issue of delay because almost all of the applicant’s allegations against the Union involve its failure to take action or represent the applicant, or relate to advice given to the applicant about her human rights complaints. The Tribunal has held that it is not discrimination for a union to decide not to represent a member, unless the reason for doing so was based on one of the grounds in the Code. See Baylet v. Universal Workers Union, 2009 HRTO 700.

29There is no allegation that the applicant’s race or gender played any role in the decisions of the Union regarding its representation of the applicant with the possible exception of the applicant’s allegation that a Union representative called her paranoid and hormonal, and insisted that she see a doctor in response to the applicant informing the Union of allegations of reprisal. The Union denies that these comments were made.

30This allegation is timely and will be heard.

The request by the PDSB to strike portions of the Reply

31The PDSB has requested that certain portions of the Reply be struck on the basis that they raise new matters that were not raised in its Response.

32Much of the information in the Reply relates to the applicant’s evidence or argument in support of her case. It is premature, at this time, to decide what evidence the applicant will be able to call at the hearing. That determination will be made closer to the hearing after the parties have exchanged their arguably relevant documents and their hearing documents, including their witness statements.

The applicant’s requests to amend the Application

33The applicant has brought four requests to amend the Application.

34The first amendment request was brought on October 16, 2014. The applicant sought leave to add the following allegations of reprisal to the Application:

a. Her principal’s request that all communications take place in person and not in writing;

b. Her daughter was held back from school on September 5, 2014;

c. A fact sharing meeting on September 10, 2014 regarding the results of an internal investigation that had been conducted by the PDSB was a disciplinary meeting; and,

d. The applicant’s union will not assist the applicant.

35The second amendment request was brought on November 6, 2014. The applicant sought leave to add a claim of constructive dismissal to the Application. She also repeats the allegation regarding the failure of the Union to act.

36The third amendment request was brought on November 24, 2014. The applicant sought leave to add a further allegation of reprisal relating to the refusal of the PDSB and the Union to allow the applicant to resign and the failure of the Union to file a grievance.

37The fourth amendment request was brought on November 28, 2014. Again, the applicant sought leave to add an allegation regarding the refusal of the PDSB to accept the applicant’s resignation and a further allegation relating to an email sent by a superintendent requesting a meeting regarding the applicant’s daughter.

38In determining requests to amend applications, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and the prejudice to the respondents. See, for example, Odell v. TTC, [2001] OHRBID No. 2, Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926.

39I will allow the applicant to amend the Application to add the following allegations:

a. That the applicant was subject to discipline as a form of reprisal when a disciplinary meeting was allegedly held on September 10, 2014 and when she was provided with a disciplinary letter of expectation; and

b. That the applicant was subjected to reprisal when her daughter was held back from school on September 5, 2014 and when a meeting was requested by the superintendent concerning the applicant’s daughter.

40The applicant’s allegations of reprisal relate to incidents after the Application was filed. The only way these allegations can form part of the Application is if these amendments are allowed. The applicant brought her request to amend the Application quickly, at a relatively early stage of the proceedings. The Application has not yet been set down for a hearing. There is no prejudice to the PDSB in allowing these amendments at this early stage in the proceeding.

41The applicant’s request to add an allegation of reprisal relating to the refusal of the PDSB and the Union to allow her to resign is denied. The applicant’s resignation is based on her assertion of constructive dismissal. The respondents disagree with that assertion. The fact that the parties take different legal positions is not reprisal.

42That said, it is clear to me that what the applicant is really saying is that she cannot return to her employment because of the discrimination that she alleges that she has experienced. This claim forms part of the Application that has been filed and will be heard.

43In relation to the applicant’s complaint about the Union, the only part of that claim that will proceed relates to the alleged comments made about the applicant being paranoid and hormonal, and whether these alleged comments played a role in the decisions made by the Union regarding any representation of the applicant in relation to her reprisal allegations.

44I recognize that there are many allegations in the Application that the respondents assert are bald allegations that do not constitute discrimination under the Code. This decision does not address those allegations. The respondents may renew their request to dismiss these allegations after hearing the applicant’s evidence. In my view, this is a better way of proceeding rather than dealing with them on a preliminary basis at this time.

order

45The applicant’s request to amend the Application is allowed in part. The applicant can amend the Application to add the following allegations of reprisal:

a. That the applicant was subject to discipline as a form of reprisal when a disciplinary meeting was allegedly held on September 10, 2014 and when she was provided with a disciplinary letter of expectation; and

b. That the applicant was subjected to reprisal when her daughter was held back from school on September 5, 2014 and when a meeting was requested by the superintendent concerning the applicant’s daughter.

46The applicant’s claim that she has been forced to leave her employment because of the discrimination that she has experienced will form part of the Application.

47The applicant’s claim concerning comments made by a Union representative may proceed.

48The PDSB and the Union may respond to these amendments within 30 days of the date of this Interim Decision.

49If the parties consent to proceeding to mediation, they must advise the Tribunal within 15 days of the date of this Interim Decision. If the parties do not consent to mediation, the Application will be placed in the hearing queue, following the expiry of the 30-day period to respond to the amendments.