Robert Sells v. Kawartha Pine Ridge District School Board, 2015 HRTO 276

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Sells

Applicant

-and-

Kawartha Pine Ridge District School Board

Respondent

INTERIM DECISION

Adjudicator: Brian Cook

Date: March 9, 2015

Citation: 2015 HRTO 276

Indexed as: Sells v. Kawartha Pine Ridge District School Board

APPEARANCES

Robert Sells, Applicant

Self-represented

Kawartha Pine Ridge District School Board, Respondent

Colin Youngman, Counsel

Elementary Teachers Federation, Intervenor

Stephanie Hobbs, Counsel

Introduction

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

2This Application was filed on November 1, 2013. It relates to an earlier Application (“the first Application”) that was filed on June 24, 2011. The first Application concerned events that occurred in May and June 2010 when the applicant was experiencing problems related to his vision and headaches. He was off work on a medical leave but wanted to participate in two end-of-school events. He was not allowed to participate in one event and was dissatisfied with the way the respondent dealt with the other event. The first Application alleged that he had been discriminated against in respect of those events. The first Application was dismissed in Decision 2014 HRTO 760, dated May 24, 2014.

3Prior to the hearing in the first Application, the applicant filed a Request for Order During Proceedings, seeking to substantially amend the Application by adding allegations about events that occurred after the first Application was filed. The Request for Order During Proceedings was filed not long before the scheduled hearing. In Interim Decision 2013 HRTO 1403, I concluded that it was not appropriate to amend the Application to include these further allegations but the applicant could file a new Application, which he did (the “reprisal Application”). On the consent of the parties, the parties were permitted to rely on evidence presented at the hearing about the first Application when the reprisal Application was heard.

4The reprisal Application alleges reprisal and discrimination on the basis of age. However, no allegations in respect of age discrimination were presented. The reprisal Application in respect of the age discrimination allegation is dismissed on that basis, and the remainder of the reprisal Application concerns only allegations of reprisal.

5A summary hearing was scheduled in respect of the reprisal Application to consider various issues, including whether the Application should be dismissed as having no reasonable prospect of success. The hearing was held on September 26, 2014.

6At the hearing, the applicant was asked to explain what evidence he has or is available that would support his allegation of reprisal. It was understood that if I found that the reprisal Application was not dismissed on that basis, then the reprisal Application would continue to be processed by the Tribunal. However, the Application would be dismissed if I determined that there is no reasonable prospect that it could succeed.

7Section 8 of the Code provides as follows:

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

8Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 is a decision which has been consistently followed and which considered what is required to show reprisal contrary to section 8. At paragraph 23 that Decision stated:

Reprisal under s. 8 of the Code must be a reprisal for the assertion of human rights and there must be an intention to reprise for that reason.

9Noble v. York University, 2010 HRTO 878 is also consistently followed. At paragraph 31, the Tribunal stated:

In order to prove reprisal, [an applicant] must establish that the respondent engaged in an action, or threat, which was intended as a retaliation for the claiming or enforcement of a right under the Code. Unlike an allegation of discrimination, where intention is not a necessary element to prove a violation, where reprisal is alleged, the complainant must establish that the action was taken with an intent to punish or retaliate.

10The Tribunal’s Practice Direction on Summary Hearing Requests states:

A summary hearing usually considers:

· whether, assuming all of the allegations are true, the Application has no reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation; and/or

· whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated by the respondent(s). The applicant has to show that he or she can make a link between the event that led to the Application and the alleged ground(s) of discrimination.

Background

11The applicant was employed as a teacher by the respondent Kawartha Pine Ridge District School Board (the “Board”). He retired in June 2013. In the reprisal Application, he alleges that he was forced to retire as a result of unfair treatment by the Board. He alleges that the fact that he had filed the first Application was a factor that contributed to the way that he was treated. On this basis, he alleges that the unfair treatment was reprisal, contrary to section 8 of the Code.

12The background to the first Application was described in the following terms in Decision 2014 HRTO 760 at paras. 2 - 6:

In May 2010, the applicant began to experience vision problems and headaches. A bilateral cataract condition was diagnosed. The headaches were migraines, triggered by excessive reading or computer work.

The applicant was unable to continue with his classroom duties because of these conditions and was off on a sick leave that extended to the end of the school year at the end of June 2010.

The grade 8 class that the applicant had been teaching had a scheduled class trip to Ottawa during the final week of school. The applicant told the respondent that he wanted to go on the trip. The respondent decided that the applicant would not be permitted to go on the trip.

There was also a grade 8 graduation ceremony. The applicant told the respondent that he wanted to attend the ceremony. The respondent ultimately agreed that the applicant could attend the ceremony but that he would not be permitted to be on the stage when the students received their diplomas. He would instead see the students on the floor when they came off the stage.

The applicant alleges that the respondent discriminated against him when he was not allowed to go on the trip and when he was not allowed to be on the stage during the ceremony.

13That Application was dismissed for the reasons set out in that Decision.

14In 2012, after the first Application was filed but before it was dismissed, the respondent identified a number of classroom issues concerning the applicant that had come to the Board’s attention, and which the Board felt were of concern. An investigation was conducted and the applicant was suspended for one day and subsequently for three days. He was then immediately transferred to another school.

15The applicant does not allege that any of the allegations or conclusions in the investigation process were related to any Code-related factors other than reprisal. Nor does he allege that they were in any way connected with the allegations and events relating to the first Application, except as reprisal against the first Application.

16The Board determined that it was required to advise the Ontario College of Teachers (“the College”) of the results of its investigation.

17The Elementary Teachers Federation of Ontario (“the Federation”) retained counsel to represent the applicant in those proceedings before the College. The Federation had also provided the applicant with representation in respect of the investigation by the Board. The applicant resigned his employment as a teacher in June 2013. He states that this was an early resignation that he was forced to take because of the unfair treatment he received.

18The applicant believes that the investigation conducted by the Board and the subsequent proceedings by the College were very unfair. The alleged unfairness includes the allegation that the Board accepted information from students who were notoriously unreliable and failed to consider that the special needs students involved had colluded. He believes that the sudden change of schools was very unfair and unprofessional. He did not have a chance to say goodbye to his students or other staff at the school and there were then all sorts of false rumours about what had happened to him.

19The applicant believes that he was treated differently than another teacher who was also accused of inappropriate behaviour in the classroom. A school principal who was involved in the other teacher’s case, has provided the applicant with a letter stating that she was contacted by the Board’s Human Resources department to obtain consent to remove the discipline letter from that teacher’s file “as he would be receiving something important from the union in return.” The applicant alleges that this proves differential treatment. The respondent asserts that the discussion about the discipline letter about the other teacher was related to the settlement of a grievance.

20The applicant contrasts this with a discussion that he had with his principal in the time following when he filed the first Application and when the events relating to this reprisal Application were occurring. He says that he was told that if he were to drop the Application, he might be dealt with more leniently and might not be required to change schools. The applicant alleges that this proves that he was being reprised against for having filed the first Application.

21The respondent asserts that the discussion about dropping the first Application occurred in the context of settlement discussions between the parties about various labour relations matters, including the Application and does not show reprisal. The respondent notes that an offer to settle the first Application that included discussion of not pursuing the first Application was made to the Federation.

Conclusions

22The issue at this time is whether the Application should be dismissed as having no reasonable prospect of success. In particular, I must determine whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his Code rights were violated by the respondent. The applicant has to show that he can make a link between the events that led to the Application and the alleged ground of reprisal. The applicant does not have to prove the allegation through evidence but rather must point to the evidence that is available which, if true, would establish reprisal.

23In this case, I find that the applicant has identified evidence which, if true, could show reprisal contrary to section 8 of the Code. This includes his allegations about the nature of the investigation conducted, differential treatment, and the suggestion that the results of the investigation might be treated differently if he dropped the first Application.

24The Application, in respect of the allegations of reprisal, is not dismissed at this time.

25The Tribunal will schedule a case management telephone conference call hearing to discuss the further processing of this Application.