Johnston v. Simcoe County District School Board, 2016 HRTO 1069

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Johnston Applicant

-and-

Simcoe County District School Board Respondent

-and-

Elementary Teachers’ Federation of Ontario Intervenor

INTERIM DECISION

Adjudicator: Keith Brennenstuhl Date: August 11, 2016 Citation: 2016 HRTO 1069 Indexed as: Johnston v. Simcoe County District School Board

APPEARANCES

John Johnston, Applicant Amanda Chapman, Counsel

Simcoe County District School Board, Respondent Lauri Reesor, Counsel

Elementary Teachers’ Federation of Ontario, Intervenor Howard Goldblatt, Counsel

Introduction

1The Applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”), which alleged discrimination with respect to employment because of disability and age as well as reprisal.

2The purpose of this Interim Decision is to decide whether the Application should be dismissed on a preliminary basis because it has no reasonable prospect of success and to address the status of the Elementary Teachers’ Federation of Ontario (the “Union”) in these proceedings. The parties attended a summary hearing where they had the opportunity to make oral submissions and present documents and cases, which addressed these issues. I have decided to dismiss the Application in part and to allow the Union to intervene. The following are my reasons.

Background

3The Applicant is employed with the respondent as an elementary school occasional teacher and has been employed with the respondent since December 1987. As an occasional teacher, the applicant may be assigned as needed to any school within Simcoe County to replace a teacher who is absent from school. At the time material to this Application, the applicant was assigned as a teacher for a Grade 4 class at a Simcoe County School.

4The Applicant’s position as an occasional teacher is a unionized position with the Union and the terms and conditions of his employment are governed by a collective agreement between the respondent and the Union.

5In March 2015, the applicant filed a Safe Schools Incident Report as a result of alleged “harassing and disobedient behaviour he experienced from a student”. According to the applicant, following an “arbitrary” and “very short investigation” of the incident, he was permanently removed from the “supply list” because, among other reasons, he refused to undergo an Independent Medical Examination to assess his mental health. Apparently he was advised that he could be reinstated to the supply list on a number of conditions including providing the respondent with an IME, which he has refused to do.

6According to the applicant, the Union has failed to address the applicant’s concerns and has refused to proceed with the applicant’s grievances.

7On March 31, 2016 the Tribunal issued a Case Assessment Direction (“CAD”) directing that a summary hearing take place. The applicant filed written submissions and documents and the respondent filed submissions and documents in advance of the summary hearing.

8The summary hearing took place on July 25, 2016.

Summary Hearing Process

9The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

10The Tribunal cannot address allegations of unfairness that are unrelated to the Code. The Tribunal’s jurisdiction is limited to claims of discrimination that are linked to the protections set out in the Code.

11The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he or she experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary or the evidence is not disputed by the applicant.

12However, and significantly, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he or she was treated unfairly. The purpose of the summary hearing is to determine if the applicant is able to point to any information which tends to support his or her belief that he or she has experienced discrimination or reprisal under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any evidence, or any evidence that may be reasonably available to the applicant to connect the unfair treatment allegedly experienced by the applicant with the Code’s protections.

13As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 (“Forde”), for an Application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show a breach of the Code.

14Having set out the basic framework for determining whether an application should be dismissed because it has no reasonable prospect of success, I now turn to the facts of this particular case.

Findings

15The applicant alleged discrimination on the basis of age. However, the applicant has not raised any age related allegations of discrimination in his Application. At the summary hearing, his counsel made the broad assertion that the applicant was targeted by the respondent because he was “an older, male teacher, a clear minority in the field of teaching.” However, the applicant has not pointed to any evidence of differential treatment, nor has he pointed to what evidence he would rely upon to tie his assertion that any of the respondent’s actions were discriminatory due to his age. Without such evidence, the allegations of discrimination on the basis of age cannot succeed. Accordingly, those allegations are dismissed on the basis that there is no reasonable prospect of success.

16The applicant alleged discrimination on the basis of disability. It is important to note that the test in a summary hearing is if there is no reasonable prospect that the Application could succeed. A decision by the Tribunal to allow an Application to proceed after a summary hearing does not mean that he Application will succeed. It only means that the Tribunal is satisfied that there are allegations that, if proven, could result in a finding of a Code infringement and that the allegations are sufficiently plausible that it cannot be said that there is no reasonable prospect that they could be proved by the applicant. Rule 19A.6 provides that where the Tribunal decides not to dismiss an Application following a summary hearing, it need not give reasons.

17I find that the allegations that the applicant was differentially treated by the respondent owing to the applicant’s disability and/or perceived disability should not be dismissed on the grounds that there is no reasonable prospect of success. These allegations should continue in the Tribunal’s process.

18With respect to the allegation of reprisal, the applicant sets out no facts that would support a finding of reprisal. As pointed out in the CAD, the reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one’s human rights. See Noble v. York University, 2010 HRTO 878 at para. 31. The applicant did not point to any assertion by him of a Code right. Accordingly, the reprisal allegations in the Application are dismissed as having no reasonable prospect of success.

Intervention of the Union

19The applicant named the Union as a respondent to his Application. At the hearing the applicant asked that the Union be removed as respondent and there was no objection from the respondent School Board. Accordingly, the Union was removed as a respondent to the Application at the hearing.

20On December 21, 2015, the Union had filed a Notice of Intervention. The position generally adopted by the Tribunal with respect to intervention by a union is set out in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 1231:

A union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents when the application alleges discrimination in employment. Absent exceptional circumstances, the applicant’s bargaining agent will be granted intervention status in Tribunal proceedings where it is requested.

21The parties have not pointed to exceptional circumstances that would militate against the union’s intervention in this proceeding. Neither party has objected to the union’s intervention. Accordingly, the Union’s request to intervene is granted.

Orders

22The Tribunal makes the following orders:

1. The allegations that the respondent discriminated against the applicant on the grounds of age, and reprisal are dismissed;
2. The allegations that the respondent discriminated against the applicant on the basis of disability will continue in the Tribunal’s process;
3. The Union is added to this Application as an intervenor, with the scope of the Union’s intervention to be determined by the adjudicator conducting the mediation or hearing;
4. Both parties have indicated their willingness to participate in mediation. The Registrar will schedule mediation in this matter.

23I am not seized.