Bouragba v. Ontario College of Teachers, 2016 HRTO 255

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ahmed Bouragba Applicant

-and-

Ontario College of Teachers, Richard Lewko, Monique Châteauvert, Myreille Loubert, Paul Marshall, and Francine Dutrisac Respondents

INTERIM DECISION

Adjudicator: Mary Truemner Date: February 25, 2016 Citation: 2016 HRTO 255 Indexed as: Bouragba v. Ontario College of Teachers

APPEARANCES

Ahmed Bouragba, Applicant Self-represented

Ontario College of Teachers, Richard Lewko, Monique Chateauvert, Myreille Loubert, Paul Marshall, and Francine Dutrisac, Respondents Eli Mogil, Counsel

introduction

1This Application was filed on February 17, 2015. It alleges reprisal and discrimination with respect to membership in a vocational association on the basis of race, colour, place of origin, ethnic origin and creed contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant describes himself as an Arab, non-white Muslim from Northern Algeria.

2On April 16, 2015, the respondents filed a Request for Summary Hearing (“the Request”), arguing that the Application should be dismissed because the allegations in it have no reasonable prospect of success, and because the Investigation Committee of the corporate respondent (“the College”) is protected by adjudicative immunity and cannot be subject to collateral attack through the Tribunal’s process. The applicant opposed the Request.

3On May 13, 2015, the Tribunal issued a Case Assessment Direction, directing that there be a summary hearing on the basis that:

a. it appears that the alleged adverse treatment is outside the jurisdiction of the Tribunal;

b. it appears that some or all of the allegations may be untimely; and/or

c. it appears that the applicant may be unable to prove that there is a connection between what the respondents are alleged to have done, and the grounds cited in the Application. That is, although the applicant may believe that the conduct of the respondent(s) is connected to these grounds, it is not clear that there is evidence available to the applicant to prove the connection. The focus of this inquiry is on the evidence the applicant has or may be able to obtain.

4The summary hearing took place by teleconference on November 3, 2015.

background

5The Response to the Application states that the personal respondents are related to the College as follows:

• Richard Lewko is the Director of Corporate and Council Services at the College.

• Francine Dutrisac is the Director of the Investigations and Hearings Department at the College.

• Monique Chateauvert and Myreille Loubert were members of a panel of the Investigation Committee that considered a complaint against the applicant by the principal at the school of one of the applicant’s sons.

• Paul Marshall is a lawyer in private practice in Ottawa. Until June 30, 2014, he acted as Independent Legal Counsel (“ILC”) to the Discipline, Registration Appeals, and Accreditation Appeals Committees of the College on matters set down to be heard in French. His retainer was not exclusive as other law firms also provided ILC services to these committees. Mr. Marshall did not act as legal counsel to the College or to the Investigation Committee.

6The Application includes a description of “What happened” that is extremely lengthy. Rather than concisely describing alleged violations of the Code by the respondents, the Application describes a myriad of examples of problems in certain relationships between the applicant and the people involved in his children’s schools, as well as interactions with the respondents. Most of what is described appears to be context for what the applicant alleges is discrimination and reprisal by the respondents.

7The “What happened” section describes context such as how the applicant is a teacher with the Ottawa-Carleton District School Board, and consequently a member of the College. Some of his children attended public schools within a different Board, namely, the Conseil des écoles publiques de l’Est de l’Ontario (“CEPEO”). The applicant was an elected member on the Council of the College (“the Council”), and sat as a member of some of its Committees, namely, the Nomination, the Election, and the Fitness to Practice Committees. He was not a member of the Discipline Committee, but he could have been invited to sit on panels of that Committee if it was short on members given that he was on the Council. Throughout 2013, the applicant, as a Council member, challenged some of the recommendations of the College’s staff, and he did not always vote pursuant to those recommendations or as other Council members voted.

8The “What happened” section also describes allegations of impropriety by the respondents which were allegedly against the public interest, including incidents where certain people, the Application asserts, should have declared that they were in conflict of interest positions, but most are not examples of discrimination under the Code. It appears that they are included in the Application because the applicant wanted the Tribunal to have a more complete picture of his relationship with the respondents.

9Below are what appear to me to be events in the “What happened” section of the Application that the applicant argues are Code related:

1. In October 2013, the applicant was excluded from Council’s budget briefing session because it had been scheduled on the religious holiday of Eid.

2. In January 2014, a principal, who worked at the CEPEO school of one of his sons, filed a complaint to the College against the applicant (“the complaint”). The principal complained of misconduct by the applicant, and, in particular, of how he communicated inappropriately to her and to others. On May 27, 2014, the applicant was informed about the particulars of the complaint, and the decision of the College’s Investigation Committee to investigate it. The applicant believes that the Investigation Committee should not have investigated the complaint, because it concerned his communications with the principal in his role as a parent, not as a professional with the College. He believes the Investigation Committee investigated the complaint as reprisal and discrimination. Also, it released a decision in January 2015 (the “Decision”) at the end of its investigation that advised that the complaint would not be processed to the next stage for the College’s Discipline Committee to determine if discipline was warranted, but that the Investigation Committee would issue a caution. A caution was issued and sent to the applicant’s employer, allegedly as reprisal.

3. On March 24, 2014, the applicant received a threatening letter from CEPEO which banned the applicant’s family from trespassing on CEPEO property and accused the applicant of unprofessional conduct. The narrative in the Application describes various events that led the applicant to believe that CEPEO and the College were sharing information about him so that some people at the College knew about the complaint against the applicant even if they were not involved in the processing of the complaint by the Investigation Committee. The applicant believes that Paul Marshall, who was independent legal counsel to CEPEO, was involved in collusion between CEPEO and the College to reprise against the applicant in a variety of ways, but the Application is not clear as to whether the reprisal was related to any attempt by the applicant to claim or enforce rights under the Code.

4. In May, 2014, the applicant was serving on the Fitness to Practice Committee. He opposed a decision against a member they were reviewing. Another member on the panel with the applicant, said, “You could see yourself in him.” The applicant believes that member was reprising against him for having questioned that member’s appointment as Chair of the Public Interest Committee earlier in the year, and believes the comment was directed at the applicant’s endeavours to pursue his rights, but the Application is not clear about what those rights were.

5. Also in August 2014, the applicant was serving on the Nomination Committee. He recused himself from a meeting about interviews for a vacant Council position because “he knew the member from the Ottawa Muslim community and he was a teacher from the CEPEO.” When that candidate said at his interview, “I know everything,” Monique Chateauvert asked the chair of the Nominations Committee to write that comment down. The applicant believes this is proof that she must have assumed that he had improperly provided the candidate with information because he is Muslim like the candidate.

6. Taking the advice of the Council chair and its staff with respect to succeeding in getting elected as a school board trustee, the applicant resigned from his position on the Council in October 2014, but it is not clear as to why the applicant acting on advice would constitute a Code violation.

10Complying with the directions in other sections of the Application form, the applicant was more clear in what exactly he is alleging was discriminatory. In response to the direction on the form, “Explain why you believe you were discriminated against because of your race, colour, ancestry, place of origin, citizenship or ethnic origin,” the applicant wrote:

I was the only francophone arab muslim elected member on the 6th Council of the Ontario College of Teachers. Other caucasian French Canadian elected and appointed members from Ottawa did not face a complaint being made against them because they were a parent who also happened to be a member of the teaching profession. Collusion between the OCT and the CEPEO French public school board allowed situations to arise leading to discriminatory treatment.

11In response to the direction, “Explain why you believe you were discriminated against based on your creed,” the applicant wrote:

An important budget briefing meeting was scheduled on a religious holiday in my faith (Eid) and I explained I could not attend for this reason. The meeting date was not changed to accommodate me on religious grounds.

It was assumed by OCT staff and some council members that I helped prepare a muslim candidate for his interview for a vacant council position since we were from the same muslim community in Ottawa.

The Chair of the Investigation panel into my matter had a personal bias against muslims because her husband had left her to convert to Islam faith.

12In response to the direction, “Please explain why you believe you were reprised against,” the applicant wrote:

I filed a Human Rights Application against the school board [CEPEO] where my children attended school for harassment, intimidation and discrimination on behalf of three of my adolescent children and against myself by school board personnel.

The OCT prevented me from full participation in council committee opportunities and carried forward reprisal action on behalf of the school board in allowing an unfounded complaint to move forward in the investigation process from the CEPEO school board where I was a parent of children in that school board but not an employee.

decision

13At the summary hearing, I asked the applicant to specify and describe, in chronological order, each incident contained in his Application against the College which he is alleging constitutes discrimination or reprisal contrary to the Code.

Allegation re: Eid, October 2013

14The applicant described at the summary hearing how one of his allegations of discrimination is that the College scheduled in August 2013 a budget briefing session for October 15, 2013 which was the day of Eid, a Muslim holiday. The applicant emailed the College on October 4, 2013 to say that he could not attend because of Eid. He did not request that it be rescheduled. The budget briefing session went ahead and the applicant did not attend. He believes the scheduling of the meeting on Eid was discrimination.

15Section 34(1)(a) of the Code stipulates that a person may apply to the Tribunal within one year of the infringement of his or her rights. Section 34(2)(b) states that if there was a series of incidents, a person may apply to the Tribunal within one year of the last incident in the series. The scheduling of the briefing session on the day of Eid happened significantly earlier than a year prior to filing the Application. The applicant explained at the summary hearing that he did not file sooner because the incident only involved one day, and he did not want to take up the resources of the Tribunal. The applicant argued that it was nonetheless within time because it was part of a series of allegedly discriminatory incidents that continued with the processing of the principal’s complaint against him in 2014 and the Investigation Committee’s decision in 2015. He offered no information to link scheduling with the other incidents he described as violations of the Code, and I find that the scheduling incident was not part of any series which might bring it within the one year limitation period.

16Section 34(2) of the Code allows for a delay in filing an Application to the Tribunal if the delay is in good faith, but the reason provided by the applicant for not filing earlier demonstrates merely that the applicant did not believe the incident justified the expenditure of resources. Given that he believed there had been a potential breach of the Code, and given that he offered no further reason for failing to file the allegation about scheduling, such as a medical reason, I cannot find good faith.

Finding that this Allegation is untimely - dismissed

17Without commenting on the merit of the allegation with respect to the scheduling of the briefing session on the day of Eid in October 2014, it is dismissed for delay.

Allegation re: the Fitness to Practice Committee’s meeting on May 22, 2014 and re: Paul Marshall

18At the summary hearing, the applicant explained that discrimination also occurred at a May 22, 2014 meeting of the Fitness to Practice Committee, a committee on which the applicant sat. A certain member was under review, and the applicant defended him. Another member, who was critical of the member who was being discussed, allegedly said to the applicant, “You can see yourself in him.” The applicant argued that the fact the member made this comment is proof that the member knows the applicant is also someone trying to enforce rights and not getting them. The applicant argued that the only way that the member would know about the applicant’s attempts to enforce rights, was if the College told him about the complaint against the applicant. The applicant argued that the College’s alleged disclosure of the complaint to the Fitness to Practice Committee member was because the applicant is not White.

19It appears from the applicant’s description at the summary hearing and in the Application that he alleges the College discriminated against him when the College told various people about the complaint. The applicant argued at the summary hearing that the reason for which the College decided to tell people about the complaint was because the applicant is not White. The applicant admitted that his evidence is circumstantial to prove that his colour was the reason but he will bring a witness who will confirm that the statement was indeed made by the member of the Fitness Committee, and indeed the applicant is not White.

20Even if the applicant is not White, and even if he can prove that the statement at the Fitness Committee was made, I see no reasonable prospect of success for him to prove that the statement means the College must have revealed the complaint to the member who made the statement. The applicant is merely speculating that the comment meant the complaint was disclosed to the member. Secondly, even if the College did discuss the complaint with the member, I see no reasonable prospect of the applicant being able to prove the reason for doing so was because of colour or any other personal characteristic covered by a Code ground. The applicant has pointed to no evidence which might connect his race, colour, place of origin, ethnic origin and creed with any disclosure by the College to the member. Again, the applicant is merely speculating it was his colour.

Finding that this Allegation has no reasonable prospect of success - dismissed

21At the summary hearing and in the context of discrimination allegations, the applicant did not refer to the personal respondent, Paul Marshall, revealing the fact of the complaint to others. However, he raised it in his Application, alleging that Mr. Marshall had a conflict as counsel representing the College and CEPEO, and implying that Mr. Marshall would have shared information inappropriately between the organizations. With no description of evidence to support an allegation that Mr. Marshall revealed the existence of the complaint inappropriately, and did so because of a ground under the Code, I find there is no reasonable prospect of success for the applicant to prove any allegation that Mr. Marshall discriminated against him with respect to any information he allowed to inappropriately leak about the complaint to the College or others.

22The allegation with respect to the member’s comment at the Fitness to Practice Committee’s meeting on May 22, 2014 and any revelations by Mr. Marshall are dismissed.

Allegation re: No invitation to sit on the Discipline Committee

23The applicant argued that he was never invited to sit on a panel of the Discipline Committee in the years that he sat on the Council, 2013 and 2014, even when the Discipline Committee was desperate and couldn’t find a francophone amongst its own members for a panel short of members. The applicant regularly reminded the Director of the Investigations and Hearings Department, Francine Dutrisac, he would like to be invited to participate in such circumstances. As an active francophone Council member, the applicant received training continually thus qualifying to participate on the Discipline Committee, and he asserted that he should have been preferred over retired Council members who were merely on the roster for panels requiring extras. He argued that retired Council members who were White and non-Muslim were regularly asked to fill in, and the applicant was not. The applicant argued the only differences between their qualifications and his were that he was Muslim and not White; therefore, the only explanation for the ongoing absence of an invitation, he argued, was the College’s and Ms. Durtisac’s preferences related to the grounds cited in the Application.

Finding that this Allegation has reasonable prospect of success - proceed

24If what the applicant described about the invitations to sit on a panel of the Discipline Committee is true, then, arguably there may be a prospect of success for this allegation, and I will not dismiss it. This allegation will proceed to a hearing so that evidence may be given by the parties. Then the Tribunal will be able to decide if the applicant has met his burden in proving that the ongoing absence of invitations to sit on any panels of the Discipline Committee was because of his race, colour, place of origin, ethnic origin and/or creed.

Allegation re: Resignation

25At the summary hearing, the applicant did not raise his alleged reliance on advice from the College to resign from the Council to pursue a career as a school trustee.

Finding that this Allegation has no reasonable prospect of success - dismissed

26I am dismissing the issue in so far as it was raised in the Application because there is no explanation as to how the advice may be characterized as discrimination, nor is there any description of what evidence exists that the advice was given because of the applicant’s race, colour, place of origin, ethnic origin and/or creed or because of reprisal for the applicant having claimed or enforced his rights under the Code.

The Investigation Committee’s Investigation, Decision and Caution, February 13, 2014 to January 23, 2015

27Another allegation, he explained, is that the Investigation Committee of the College accepted and investigated the complaint, and ultimately issued a caution to the applicant.

28The Investigation Committee is mandated by legislation to refuse to consider and investigate complaints that do not amount to professional misconduct by a member, or that are frivolous, vexatious or an abuse of process. Subsections 26(1) and 26(2) of the Ontario College of Teachers Act, 1996, S.O. 1996, c. 12 (“the Act”) state the following with respect to the Investigation Committee:

26. (1) The Investigation Committee shall consider and investigate complaints regarding the conduct or actions of a member of the College made by,

(a) a member of the public;

(b) a member of the College;

(c) the Registrar;

(d) the Minister.

(2) Despite subsection (1), the Investigation Committee shall refuse to consider and investigate a complaint if, in its opinion,

(a) the complaint does not relate to professional misconduct, incompetence or incapacity on the part of a member;

(b) the complaint is frivolous, vexatious or an abuse of process.

Alleged Reprisal

29The applicant explained at the summary hearing that he will be able to prove reprisal in addition to discrimination with respect to the Investigation Committee’s decision to investigate and caution him. He explained that the Investigation Committee decided to continue its investigation of the complaint and to caution him because the College was angry that the applicant had made a reference to the College in another application (File #2014-18407-I) that he filed at the Tribunal in early August, 2014 (“that first application”). In that first application, the applicant named the principal and CEPEO as respondents. The College was not named as a respondent, but that first application alleged that there had been collusion between CEPEO and the College against the public interest.

30Also, the applicant explained that the Decision noted that the principal made reference to that first application in her complaint against him, and the Decision implied that first application was a reason for which she filed the complaint. He argued that the fact the Decision included her reference to that first application is proof that the Investigation Committee continued investigating the complaint against him as reprisal.

Alleged Discrimination because of race, colour, place of origin, ethnic origin and creed

31The applicant argued that the complaint pertained to the applicant’s role as a parent of a student, not his professional role as a teacher or member of the College; yet, the Investigation Committee accepted the complaint for investigation which the applicant argues it should not have done. In considering this issue, I am mindful that the Tribunal does not have the general power to deal with allegations of unfairness. As the Tribunal explained in Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115, an application alleging merely misapplication of rules or policies cannot be reasonably considered to amount to a Code violation and has no reasonable prospect of success.

32Under s. 26(2)(a) of the Act, the Investigation Committee is mandated to refuse to consider and investigate a complaint if, in its opinion, the complaint does not relate to professional misconduct. The Investigation Committee found that the complaint did not merit a referral to the Discipline Committee, and therefore ended any further processing of the complaint. However, the applicant’s allegation, at least in part, is that the Investigation Committee should never have considered the complaint in the first place, and that it did so because of Code factors.

33The applicant claims that the way the Investigation Committee treated him was so extraordinary and unprecedented that his race, colour, place of origin, ethnic origin and creed must have been the reasons for their treatment. The reason he says he knows this is true is because he knows of non-Muslim, White members who were the subjects of four complaints filed at the College, and the College did not accept or investigate those complaints. He admitted, however, that those complaints were from the public, unlike his complaint from the principal, a fellow member of the College.

34The applicant did not know if there have been any complaints from members of the College about White, non-Muslim teachers that have been refused by the Investigation Committee. He did not provide any information which would lead me to believe that there exist any complaints against White, non-Muslim members that the Committee did not investigate in circumstances similar to those involving the applicant and the complaining principal. In particular, he knew of no comparable complaints about White, non-Muslim members that the College did not accept, where the complainants were members, and where they complained that other members unprofessionally maligned them to people within the profession such as the Director of Education and school trustees, as the principal in this case alleged the applicant had done.

35The applicant admitted that the complaints he has heard of, that were not investigated by the College, did not involve the same kind of allegations as those against him. Nevertheless, he wants his Application to go to a hearing so that he can find out if the College has received complaints about White, non-Muslim members that would be comparable to the one against him, and so that he can learn if they investigated a similar complaint.

36In his written submissions, the applicant indicates that he has other evidence to prove that one or more alleged Code grounds were factors in the decisions to accept and investigate the complaint against him, and then to caution him. In particular, the applicant alleges that two of the panel members of the Investigation Committee, the personal respondents, Ms. Loubert and Ms. Châteauvert, were biased against Muslims. He implies that they included the applicant’s creed in their deliberations of what to do with the complaint, and that they influenced the other panel members to either investigate or caution the applicant for this reason.

37The respondents argued that the allegations relate to the Investigation Committee’s adjudicative actions and decisions; therefore, they argue, adjudicative immunity applies to bar the Tribunal from hearing the allegations related to the Committee’s investigation of the principal’s complaint and to the Decision. The Tribunal, they argued, has no jurisdiction.

38I am not certain that adjudicative immunity applies to the Investigation Committee, given that it is a screening committee which investigates complaints to decide whether they should go forward to the Discipline Committee where a full disciplinary hearing may be initiated. In Leger-Legault v. Ontario College of Teachers, 2008 CanLII 54307, (ON SCDC), the role of the Investigation Committee in cautioning a member was described “in the nature of an educational or advisory body”. But, given what appears to be a complete bar on accessing any documents that were prepared for or by the Discipline Committee, I will not decide the issue now. I am concerned that there can be no reasonable prospect of success for allegations that actions or decisions of the Discipline Committee violated the Code because of statutory privilege. Similarly, I am concerned about the Tribunal being able to consider decisions of the Discipline Committee. I say this because of s.48(3) of the Act which states:

48(3) 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.

39In Conroy v. College of Physicians and Surgeons of Ontario (“Conroy”), 2011 ONSC 324, at para. 55, the Ontario Superior Court dealt with s.36(3) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (“RHPA”), found that the very similar provision in that legislation, s.36(3) of the RHPA, “creates a blanket prohibition against the admissibility of all evidence collected during the course of the College’s investigation and this prohibition is an absolute one.” The court also clarified, at para. 52, that the prohibition in s.36(3) means that “none of the records, reports, orders, decisions or other documents” created during a College proceeding can be admitted in a civil action.

40The Tribunal will therefore schedule a teleconference hearing for the parties to make submissions on the impact, if any, of s. 48(3) on the proceeding before this Tribunal. I would also expect the parties to be prepared to address whether there is no reasonable prospect of success for the allegations pertaining to the decisions of the College to accept and investigate the complaint, and to issue a caution to the applicant if I were to find that s. 48(3) creates a prohibition the same or similar to that found in Conroy.

summary

41The allegation with respect to the College scheduling a budget briefing session for October 15, 2013, a Muslim holiday, is dismissed.

42The allegation with respect to the member’s alleged comment at the Fitness to Practice Committee’s meeting on May 22, 2014, and any allegations about revelations by Mr. Marshall are dismissed.

43Any allegation with respect to the applicant resigning his position on the Council pursuant to advice is dismissed.

44Further submissions are required from the parties on statutory privilege before the Tribunal decides whether to dismiss or not the allegations pertaining to the complaint against the applicant and the Investigations Committee.

45The allegation that the applicant was never invited to sit on a panel of the Discipline Committee will proceed to an in-person hearing so that evidence may be given by the parties. The hearing will not be scheduled until the preliminary hearing, as described below, has been completed and a decision issued.

next steps

46The Tribunal will schedule a preliminary hearing by way of conference call for the parties to argue the issue of statutory privilege as set out in para. 40, above. The parties may file any written submissions at least 15 days in advance of the conference call.

47The applicant filed a request to amend the Application and add one of his sons as a party. As there was no time to deal with that request at the summary hearing, the parties will have an opportunity to speak to the issue at the conference call soon to be scheduled.