Black v. Ontario College of Teachers, 2016 HRTO 1233

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

James Black

Applicant

-and-

Ontario College of Teachers

Respondent

DECISION

Adjudicator: Jo-Anne Pickel

Date: September 20, 2016

Citation: 2016 HRTO 1233

Indexed as: Black v. Ontario College of Teachers

APPEARANCES

James Black, Applicant

Self-represented

Ontario College of Teachers, Respondent

Eli Mogil and Mira Novek, Counsel

1By Application filed on January 5, 2015, the applicant alleged that the respondent discriminated against him based on race, colour, ancestry, place of origin, citizenship, ethnic origin, creed, sex, family status, record of offences, and association with a person covered by a Code ground. He also alleged that the respondent reprised against him contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). The applicant is a teacher. He is not himself a racialized or indigenous person but he stated that his spouse is of indigenous ancestry.

2In his Application, the applicant made a wide array of allegations in his Application regarding incidents involving many different people which took place over an eleven year period. One of his primary allegations is that the Ontario College of Teachers (“College”) and other entities within the educational system in Ontario do not do enough to prevent and respond to child abuse and racism in schools. He also alleged that the College has reprised against him for speaking out on the issues of child abuse and racism within the educational system. Finally, the applicant made a number of allegations of discrimination against other teachers and argued that the College is liable for the actions of these individuals because these teachers are members of the College.

3The respondent denied the applicant’s allegations and requested that the Tribunal dismiss the Application for a number of reasons. I directed that the Tribunal schedule a preliminary/summary hearing to address the following issues:

a. whether the Application is subject to the doctrine of adjudicative immunity and outside the Tribunal’s jurisdiction as a result;

b. whether portions of the Application should be dismissed as untimely;

c. whether all or some of the Application should be dismissed on the basis that there is no reasonable prospect that Application or part of the Application will succeed; and

d. whether some or all of the Application should be dismissed as an abuse of process or under s. 45.1 of the Code.

4It is obvious that the applicant is strongly committed to advocating on behalf of children as well as racialized and indigenous groups within the education system in Ontario. However, his Application must be dismissed on the basis that all allegations relating to incidents prior to 2014 are untimely. His allegations regarding the reprimand he received in 2014 must be dismissed on the basis that they have no reasonable prospect of success in terms of establishing discrimination or reprisal under the Code.

Summary/Preliminary Hearing Process

5The purpose of a summary/preliminary 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 or for some other reason – for example, if the application is untimely or it is covered by the doctrine of adjudicative immunity.

6The Tribunal cannot address allegations of unfairness that are unrelated to the Code. Many experiences of unfairness that are not linked to the Code can leave a person with significant financial and emotional damage, not to mention a good deal of frustration. However, the Tribunal’s jurisdiction is limited to claims of discrimination and reprisal that are linked to the prohibited grounds set out in the Code.

7The 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.

8However, 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 whether 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 that may be reasonably available to the applicant to connect the unfair treatment allegedly experienced by the applicant with a ground protected under the Code.

9As 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 discrimination on the basis of one of the grounds alleged in the Code.

10In addition to the power to dismiss an application if it stands no reasonable prospect of success, the Tribunal also has the power to dismiss applications on a preliminary basis for other reasons. For example, the Tribunal may dismiss applications on a preliminary basis if they are untimely or if the allegations are covered by the doctrine of adjudicative immunity.

11On the issue of timelines, s. 34 of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident (or last incident of a “series of incidents”) to which the application relates. Under section 34(2) of the Code, a person may apply to the Tribunal more than one year after the incident to which his or her application relates (or the last incident in a series of incidents) only if the Tribunal is satisfied that the delay in filing the Application was incurred in good faith and that no substantial prejudice would result to any person affected by the delay if the Application were to proceed.

12Having set out this basic legal framework, I now turn to the factual background of this particular case.

Factual background

13As noted above, the applicant is a teacher and a member of the College. He has filled many different positions over the years and he has been involved with various initiatives to advocate for the rights of indigenous communities as well as other racial groups. In addition, he was asked by the Ministry of Education to submit a report on his experience as a member of the College’s council. Finally, he has also been outspoken advocate in favour or preventing and/or addressing child abuse within the educational system.

14The incidents contained in the Application span an 11 year period from 2003 to 2014. The applicant divided his Application into six parts. In the first part, the applicant made allegations against a school principal regarding an incident in 2003. He also included the text of a report he sent to the Minister of Education in 2004 which included various critiques of the College and raised concerns about the treatment of First Nations teachers by the College and within the school system generally. The applicant also appears to make an allegation against a teacher’s union in relation to its awareness of racism in the school system both before and after he made his report to the Minister.

15In the second part of the Application, the applicant makes a number of allegations against other teachers or school board officials relating to incidents that occurred between 2004 and 2007. None of these individuals are respondents to the Application.

16The third part of the Application relates to an investigation conducted by the College into whether the applicant had breached the confidentiality provisions in the Ontario College of Teachers Act 1996, S.O. 1996, c. 12 by allegedly disclosing information he obtained while sitting as a member of a discipline committee panel. The applicant made a number of allegations relating to the fairness of the College’s investigation. He also alleged that the investigation amounted to harassment and reprisal against him for speaking out on the issue of child abuse within the school system. The alleged breach of confidentiality occurred in relation to information obtained by the applicant in the only discipline committee case he sat on. The case involved the reinstatement of a member of the College who had been convicted of sexual exploitation.

17In the fourth part of his Application, the applicant makes a number of allegations about a Discipline Committee hearing into several preliminary motions he made. The applicant alleged that the Chair of the panel wrote a book describing sexual activity between teachers and students. He takes issue with the fact that the panel denied his motions.

18In the fifth part of his Application, the applicant alleged that the Discipline Committee discriminated against him during the hearing of his case and in the decision it reached. The Discipline Committee hearing occurred in June 2008. The Committee released its decision in October 2008 and it released a penalty decision in February 2009. Among other penalties, the College ordered that the applicant be reprimanded.

19The sixth part of the Application contains allegations relating to the reprimand ordered by the Discipline Committee in 2009 which did not take place until August 2014. When he received the reprimand, the applicant placed on the desk in front of him a commemorative shirt with a photo of a racialized youth who died while in the presence of school officials in the United States. The applicant alleged that one part of the text of the reprimand was discriminatory.

20In addition, the applicant claimed he was misled by the College’s lawyer as to whether any reference would be made to the evidence in the case at the reprimand and whether he would be allowed to speak. He also alleged that, when he expressed concern about his safety due to previous threats made against him, the College’s counsel told him that the College employs appropriate security staff to ensure the safety of all guests, staff and Council members. The applicant did not believe he was covered by these safety assurances and saw the statement as a further threat.

21At the end of his Application, the applicant made a number of general claims that the College does not do enough to protect school children from abuse. He referred to various cases he believes were not properly handled. He also stated that a number of parents have approached him with concerns and complaints. Finally, he made general claims against the review of the College conducted by Justice Patrick Lesage – for example, that the review did not receive input from the public, that the input of certain groups was ignored, etc.

findings

Section 48(3) of the Ontario College of Teachers Act

22At the preliminary hearing, I sought submissions from the parties on the impact, if any, of s. 48(3) of the Ontario College of Teachers Act in this case. That subsection states:

No record of a proceeding under this Act and no document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in any civil proceeding, other than a proceeding under this Act or an appeal or judicial review relating to a proceeding under this Act.

23The courts have identified the purposes of such provisions as follows:

to encourage the reporting of complaints of professional misconduct against members of the profession, and to ensure that those complaints are fully investigated and fairly decided without any participant in the proceedings fearing that a document prepared for the proceedings could be used in a later civil action.

24See F. (M.) v. Dr. Sutherland, 2000 CanLII 5761 (ON CA), at para. 29 and Andrushko v. Ontario, 2009 CanLII 55282 (ON SC) at para. 6.

25In a series of cases, the Tribunal has interpreted the term “civil proceeding” in provisions such as the above as including a Tribunal proceeding. See, for example, Gan v. College of Physicians and Surgeons, 2013 HRTO 1888; K.M. v. Kodama, 2014 HRTO 526; and McWilliam v. Toronto Police Services Board, 2016 HRTO 934.

26Therefore, no record of a proceeding under the Ontario College of Teachers Act, no document or thing prepared for, or statement given, at such a proceeding and no order or decision made in such a proceeding is admissible in this preliminary hearing or in a merits hearing.

Timeliness

27I find that all of the allegations in the Application, except for the applicant’s allegations relating to the reprimand he received in 2014 are untimely and must be dismissed on this basis.

28As noted above, the applicant filed his Application on January 5, 2015. The allegations contained in the first five parts of his Application occurred between 2003 and 2009. Therefore these allegations are untimely under s. 34(1) of the Code unless they form part of a “series of incidents” with his allegations relating to the reprimand which occurred in 2014. If these allegations do not form part of a “series of incidents”, as that term has been interpreted by the Tribunal, they must be dismissed unless the applicant can provide a reasonable explanation for his delay in filing the Application in relation to these incidents.

29The Tribunal has found that there must be some thematic connection or nexus between incidents in order for them to be considered a “series of incidents” within the meaning of s. 34(1) of the Code. A series cannot be comprised of incidents relating to discrete and separate issues. Generally, the Tribunal has not considered incidents to form part of a “series of incidents” if there is a break of one year or more between incidents. See Savage v. Toronto Transit Commission, 2010 HRTO 1360 at para. 9.

30As noted above, the applicant’s main allegation regarding the reprimand related to one part of the text of the reprimand. The applicant claimed that this part was discriminatory especially because he had placed on the desk in front of him a commemorative shirt with a photo of a racialized youth who died while in the presence of school officials in the United States. In addition, the applicant alleged that he was misled by the College’s lawyer and that he perceived the lawyer to be making a threat to his safety.

31These allegations are clearly distinct from the rest of the allegations in the Application which relate to the College’s investigation of the complaint against the applicant, the Discipline Committee’s decisions, and complaints against a number of other teachers. Not only are the allegations regarding the reprimand distinct from the other allegations in the Application, but there was a gap of greater than five years between the incidents that occurred at the time of the reprimand and the previous incident in 2009. For all these reasons, the incidents that occurred more than one year before the applicant filed his Application do not form part of a series of incidents with the reprimand and are untimely.

32The applicant did not provide any explanation for why he did not file his Application in a timely way following the incidents that occurred prior to 2014. The applicant stated that the College waited an exceedingly long period of time before actually issuing the reprimand ordered by the Discipline Committee in 2009. Even if I were to accept that this is the case, there is no reason why the applicant could not have pursued his discrimination allegations relating to previous events in a timely way. He did not need to wait until the reprimand was actually formally administered to proceed with his discrimination allegations regarding all the prior incidents contained in his Application. In the absence of a reasonable explanation for the applicant’s delay in filing his Application regarding all incidents other than the incidents surrounding the reprimand, these allegations are dismissed as untimely.

No reasonable prospect of success

33In my view, the applicant’s allegations surrounding the reprimand that he received in 2014 stand no reasonable prospect of success under the Code.

34The applicant’s main allegation of discrimination related to the text of the reprimand. In my view, the content of the reprimand is covered by s. 48(3) of the Ontario College of Teachers Act as it is either part of a record of a proceeding under the Act, a statement given at such a proceeding or part of an order or decision. Therefore, any evidence about the content of the reprimand is inadmissible in this proceeding. There is essentially nothing left for the applicant to rely upon to make out his allegation relating to the content of reprimand once the content is found inadmissible. Any oral testimony regarding the content of the reprimand would also be inadmissible. Otherwise, any such testimony would thoroughly undermine and render inoperative s. 48(3) of the Ontario College of Teachers Act. For all these reasons, I find that the applicant’s allegation relating to the content of the reprimand has no reasonable prospect of success. See Dindial v. College of Nurses of Ontario, 2016 HRTO 1170 where the Tribunal reached a similar result. I must also add that, even if the text of the reprimand were admissible as evidence, I would have found that there was no reasonable prospect that the applicant would be able to establish that the wording of the reprimand was discriminatory.

35Likewise, there is no reasonable prospect that the applicant will be able to prove that the statements made by the College’s lawyer on the day of his reprimand amounted to discrimination or reprisal under the Code. Even if I accepted that the lawyer misled the applicant as to how the reprimand would be carried out that, on its own, does not amount to discrimination under the Code. Similarly, the lawyer’s response that the College employs appropriate security staff to ensure the safety of all guests, staff and Council members cannot reasonably be found to amount to discrimination, harassment or reprisal under the Code. Although the applicant felt that he was not covered by this privacy assurance, his allegation is based on his own interpretation of the situation. He pointed to no evidence that could reasonable establish that the College’s lawyer did not intend the reference to “guests” to apply to the applicant, as it would to anyone else attending functions or proceedings at the College.

36Finally, as noted above, at the end of his Application, the applicant made a number of general claims that the College does not do enough to protect school children from abuse. He also made general claims against the review of the College conducted by Justice Patrick Lesage. I find that the general claims included at the end of the Application also have no reasonable prospect of success under the Code and many of them are also untimely. Many of these claims are not allegations of discrimination but instead allegations that the OCT does not do enough to prevent, or address, child abuse. Even if these claims were characterized as allegations of discrimination, they are not allegations of discrimination against the applicant and, in the case of the claims regarding the review conducted by Justice Lesage, they are not allegations against the respondent. For all these reasons, these allegations by the applicant must also be dismissed as having no reasonable prospect of success under the Code.

order

37Even if I were to accept that the applicant has important concerns about preventing or addressing racism and child abuse, his Application must be dismissed for all the above reasons. Due to these findings, I do not have to address the other grounds on which the respondent requested dismissal of the Application, including whether the Discipline Committee’s actions are covered by the doctrine of adjudicative immunity.