HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Diane Gan
Applicant
-and-
District School Board of Niagara
Respondent
INTERIM DECISION
Adjudicator: Douglas Sanderson
Indexed as: Gan v. District School Board of Niagara
APPEARANCES
Diane Gan, Applicant
Self-represented
District School Board of Niagara, Respondent
John-Paul Alexandrowicz and Jeffrey Patterson, Counsel
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination with respect to employment because of race, colour, ancestry, place of origin and age.
2The applicant, who describes herself as a Chinese Canadian, born and raised in Myanmar and Taiwan has been an occasional teacher (commonly referred to as the "supply teacher") within the respondent School Board and its predecessors since November 24, 1997. She was 43 years old when she was hired. The applicant alleges that she has been subject to an ongoing series of discriminatory events for most of her employment with the respondent. The applicant states that she has been over supervised and made to feel unwelcome in the respondent's schools. The applicant states that she has been targeted because of her accent and ethnicity and has been held to account for things that would not have been addressed with younger non-racialized teachers who do not speak with an accent. The applicant states that throughout her tenure with the respondent she has attempted to be hired on the Long Term Occasional (“LTO”) list without success, which she attributes to discrimination.
3The respondent denies that it violated any of the applicant's rights under the Code. The respondent submitted that most of the Application should be dismissed for delay, because another proceeding has appropriately addressed the substance of the Application or because the allegations have no reasonable prospect of success. Regarding the merits of the Application, the respondent asserts that the incidents described in the Application arose largely because of the applicant's poor classroom management skills, which have not improved over the course of her employment, despite ongoing training. The respondent states that the applicant does not take responsibility for her shortcomings in the classroom.
Procedural History and Hearing
4The Tribunal deferred this Application pending the conclusion of related grievance proceeding. See 2014 HRTO 783. The Tribunal also noted that the applicant purported to amend the Application in documents filed on May 15, 2014, but had not filed a Request for and Order During Proceedings seeking permission to amend the Application. The Tribunal granted the applicant's request to reactivate the Application after the grievance proceeding was concluded. See 2015 HRTO 1351. By Case Assessment Direction dated March 9, 2016, the Tribunal ordered a summary/preliminary hearing in this matter to determine whether the Application should be dismissed in whole or part because of delay, because the Application has no reasonable prospect of success or because another proceeding has appropriately dealt with the substance of the Application. The Tribunal held a summary/preliminary hearing by teleconference on November 16, 2016 and on March 22, 2017.
5Prior to the hearing, the applicant did not file a request to amend the Application. Accordingly, the amendments the applicant purported to make in her filing of May 15, 2014 are not before the Tribunal. On March 21, 2017, the applicant filed nearly 300 pages of documents in support of her Application, including a Request for an Order During Proceedings seeking to amend the Application and requesting production of documents. At the outset of the hearing on March 22, 2017, I pointed out to the applicant by filing a large amount of material the day before the hearing is not appropriate. I also ruled that I would not address the applicant's request to amend/request for productions because the respondent had had no opportunity to respond to it. Accordingly I considered only the allegations contained in the Application filed on February 18, 2014 for the purposes of the summary/preliminary hearing. The respondent would be given an opportunity to respond to the requests in the event the Application, or part of the Application, is permitted to proceed.
Delay
6The applicant submitted that there had been no delay in filing the Application. She submitted that in any event there was a good-faith explanation for any delay and that the respondent will suffer no prejudice if the Application is allowed to proceed. The applicant submitted that, taken together, her allegations disclose a pattern of discrimination. The applicant submitted that she feared reprisal if she complained about the respondent. The applicant submitted that the respondent was building a case to discipline her on the pretext that her classroom management skills are deficient. The applicant submitted that she was not aware of the grievance process or the ability to file an Application to the Tribunal until September 2013. The applicant submitted that she tried to get the union to assist her, but on some occasions the union refused to file a grievance (e.g., regarding an incident in November 2013) and refused to include allegations of Code breaches with respect to the incident that occurred in February 2013. The applicant submitted that the union colluded with the respondent and caused delays.
7The respondent submitted at the applicant raised concerns about reprisal for the first time at the hearing. The respondent submitted it was not appropriate to raise this issue for the first time at the hearing, but the applicant's submissions were not compelling in any event. The respondent submitted that the applicant's union, the Ontario Secondary School Teachers’ Federation was not a respondent and that it was inappropriate to consider the union's alleged acts or omissions.
8The respondent submitted that the Application was filed on February 18, 2014; therefore, any incident alleged to have occurred before February 19, 2013 was untimely. The respondent submitted that, accordingly, the majority of the applicant's allegations were outside the limitation period. The respondent submitted that the applicant had not provided any reasonable explanation for her delay in filing the Application, and, accordingly, there was no basis for the Tribunal to exercise its discretion under section 34(2) of the Code. In that regard, the respondent noted that the applicant's position was that respondent had treated her unfairly for approximately 20 years. Nonetheless, the applicant made no effort to discover her rights. The respondent submitted to the applicant's allegations do not amount to a series for the purposes of section 34(1)(b) of the Code.
9The respondent submitted that it would suffer significant prejudice if the applicant was allowed to pursue the untimely allegations. The respondent noted that the applicant's allegations date back as far as 1997 and involve a large number of the respondent's employees, many of whom are retired. The respondent submitted that it would be an enormous undertaking to respond to all of the applicant's allegations. The respondent submitted that in these circumstances its ability to defend the Application has been prejudiced by the applicant's delay.
10In reply, the applicant submitted that that respondent and her union wanted to avoid the issue of discrimination. The applicant submitted that she always feared reprisal and therefore "let things go" until recently.
Reasonable Prospect of Success
11The applicant submitted that the main allegations of discrimination were five incidents in which she received some kind of warning. These incidents were as follows: March 7 and 9, 2011 at Beamsville Secondary School (letter of counsel/expectations delivered April 11, 2011); June 17, 2011 at Queen Mary Elementary School (verbal warning delivered September 12, 2011); December 5, 2011 at Winger Secondary School (verbal warning delivered March 8, 2012); November 8, 2012 at Kernahan Park Secondary School; and, February 19, 2013 at Kernahan Park Secondary School (letter of reprimand received on March 27, 2013). In each of these cases, on the applicant's account, the applicant was responsible for classes in which the students were extremely poorly behaved and/or the school administration received a complaint about the applicant. In each case school administration and the Superintendent of Human Resources, Jim Morgan, investigated and in each case, the applicant receives some kind of caution or warning about her class management skills. The applicant submitted that in each case the applicant's explanation regarding the students' behaviour and her own efforts to manage the students were not taken into consideration. The applicant submitted that she received apologies from the principal of Kernahan Park Secondary School and the students in the class she taught regarding the incident on November 8, 2012. Notwithstanding these apologies, Mr. Morgan sent her a letter critical of her classroom management skills.
12The applicant organized most of the remainder of her allegations into two categories: "over supervision" and "not welcome". The applicant alleged that she was over supervised and other teachers, school principals, or Educational Assistants were present in the classes to which she was assigned. In some cases, the principal or teacher would stay in the class for extended periods to observe. The applicant submitted that such supervision was harassing and discriminatory. The applicant submitted that she was "not welcome" when teaching assignments were either canceled or reduced. The applicant stated that a teacher for whom she taught put her on a secret "Blacklist" in October 2010. The applicant also alleges that on several occasions she was told not to accept certain work assignments. The applicant submitted that this practice of not welcoming her was discriminatory. The applicant also asserted that many teachers and schools give assignments to "preferred" occasional teachers, which she also characterized as discriminatory.
13The applicant submitted that she was never able to obtain full-time employment with the respondent. Similarly, the applicant noted that she interviewed for LTO positions on several occasions, but was never able to secure a position. The applicant submitted that on one occasion one of the interviewers commented on the applicant's accent because she was concerned that the students would have trouble understanding her. The applicant was also asked to take English as a second language courses.
14The applicant submitted that the respondent's hiring practices had provided her with no chance to advance. The applicant submitted that she was overqualified, as she has a Master’s Degree in Engineering. The applicant also pointed to the many courses she has taken to maintain and update her skills. The applicant asserted that the respondent does not want to hire her because of her higher qualifications. The applicant submitted that all of her classmates, presumably from Teachers College, got jobs. The applicant submitted that she feels singled out as a teacher who is both a visible minority and an older person. The applicant stated that with her qualifications and willingness to travel she would expect to get occasional teaching jobs every day, but in fact it generally averages only about two months’ pay, approximately $15,000, in the school year. The applicant stated that she changed her name to Diane in 2005 and feels that she received a few more assignments as a result.
15The respondent submitted that even assuming the applicant's factual allegations are true, the applicant did not identify any evidence of a breach of the Code and gave no indication that any such information would be forthcoming. The respondent submitted that the applicant did not describe evidence that linked her allegations to Code grounds and that her Application was no more than allegations of unfairness.
16The respondent submitted that language is not a prohibited ground of discrimination. Under the Tribunal's jurisprudence, language may gain Code protection where there is evidence that language is a proxy for Code grounds such as race, ethnic origin or place of origin. The respondent submitted that the applicant pointed to no evidence that would indicate that the comments about her accent were a proxy for Code grounds. The respondent also pointed to decisions in which the Tribunal found that legitimate concerns about language proficiency were not discriminatory.
Analysis and Decision
No Reasonable Prospect of Success
17Section 5 of the Code provides as follows:
- (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
18In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments regarding the concept of no reasonable prospect of success at paragraphs 8-10:
In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the Application to be true, it has a 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.
In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.
In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the Application must be dismissed following the summary hearing.
19The Tribunal has stated on many occasions that it does not have a general power to deal with allegations of unfairness. See for example: Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, Szabo v. Office of a Member of Parliament of Canada, 2011 HRTO 2201, and Badvi v. Voyageur Transportation, 2011 HRTO 1319. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as race, colour or ethnic origin. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics was a factor in the treatment the applicant experienced. In a summary hearing, the Tribunal does not determine whether the applicant is telling the truth or assess the impact of the treatment they experienced. There is no question that acts of unfairness that are not legally discriminatory can cause significant harm.
20At a summary hearing, the test the Tribunal applies is that of no reasonable prospect of success, which is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The mere fact that a person identified by a prohibited ground of discrimination experiences some kind of disagreeable or unfair treatment is not generally sufficient to support an inference of discrimination. The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics. However, if the applicant is unable to point to circumstances beyond his or her own assumptions or belief, the Application may be found to have no reasonable prospect of success.
21In this Application, the applicant has listed 36 separate incidents in which she alleges that she was unfairly disciplined, over supervised or made "not welcome", in addition to her allegation that she was not hired as a LTO for discriminatory reasons. These allegations date back to 2005, and are in many cases remarkably detailed given the passage of time. Despite the applicant's thoroughness, her allegations as described in the Application appear to be general allegations of unfairness. In other words, there is nothing in her allegations that connects the respondent's actions to prohibited ground of discrimination. Moreover, all but three of the incidents on which the Application is based occurred more than one year before the Application was filed. I must therefore determine whether the timely incidents form a series, for the purposes of section 34(1)(b), with the incidents alleged to have occurred beyond the one-year limit. However, the Tribunal has found that an allegation that has no reasonable prospect of success cannot form part of the series under section 34(1)(b). See Chappell v. Securitas Canada Limited, 2012 HRTO 874; Garland v. Canusa-CPS, 2012 HRTO 1309; and, Mozafarian v. Saint Elizabeth Health Care, 2016 HRTO 784. Before addressing the issue of delay, I must consider whether any of the timely allegations must be dismissed because they have no reasonable prospect of success.
22The applicant states in her Application that on January 31, 2014 she had a morning assignment at the DSBN Academy. At recess, the school secretary advised her that afternoon assignment in a different class in the school had been posted on SEMS (Substitute Employee Management System, an automated system for assigning occasional jobs) for the afternoon. The secretary advised, however, that the position had been filled; therefore, the applicant should not accept the assignment if she was contacted by SEMS. The applicant stated that this interaction gave her a bad feeling. The applicant asserts that this is "bias" and that she was not welcome. The applicant characterized the incident as discrimination and workplace harassment. The applicant did not specifically address this incident in her oral submissions.
23While the applicant did not appreciate this interaction, she pointed to no evidence that would connect the respondent's actions to a Code ground. The applicant alleges that she was "not welcome" at this particular school, but even on her account there is no indication that anyone said she was not welcome. The applicant was advised that an occasional assignment – of which she was not aware – had already been filled. Nothing on the face of these facts supports the allegation that any of the Code grounds on which the applicant relies was a factor in respondent's actions. The applicant's assertion that the incident amounted to discrimination and harassment is a bare assertion. In my view, this allegation has no reasonable prospect of success. In coming to this conclusion, I have considered that the applicant has complained of several similar incidents, albeit only one, on February 6, 2013, within one year of January 31, 2014 (the next most recent was in October 2010). A feature of all these allegations is that the applicant set out no facts that would connect the fact that an assignment was canceled or shortened to her race, color, ancestry, place of origin, ethnic origin or age. The bare assertion that she has repeatedly been made to feel unwelcome is not a proper basis for a human rights claim.
24The applicant alleges that she was subject to over supervision, discrimination and bullying while teaching at Prince of Wales St. Catharines Elementary School on October 1, 2013. The applicant states in the Application that she was informed that it was a tough class. The classroom teacher, TE, was initially in and out of the classroom and the principal came into the classroom for a few minutes during the national anthem, during which time he corrected the behaviour of some of the students. On the applicant's account, the students were extremely poorly behaved. Many of the students were disruptive and disrespectful. Some made fun of the applicant's appearance and her accent. During attendance, TE reprimanded the students for their behaviour, which she characterized as discrimination and bullying of both the applicant and herself. TE also threatened consequences if the behaviour continued and then left for a meeting. TE later returned to the class and marked assignments. TE remained in the classroom, and advised, when the applicant inquired, that she had been directed to stay in the classroom. While there, TE gave corrective direction to some of the students. TE later lectured the students about their behaviour and imposed the sanctions about which she had warned the students. During lunch break, the applicant asked TE who directed her to stay in the classroom, but did not get an answer. The applicant thanked TE for addressing students' behaviour.
25The behaviour of students does not directly come within in any of the social areas of the Code, e.g., students do not provide services to teachers. The applicant was, however, entitled to work in an environment free of comments mocking her accent and appearance, both of which are or can be related to her race and place of origin. On the applicant's own account, TE immediately addressed the students' improper behaviour, for which the applicant thanked her. In these circumstances, there is no proper basis for a finding that the respondent did not address the alleged harassment the applicant faced in the classroom. The applicant takes issue with the fact that TE was in her class, which she characterized as "over supervision". The applicant pointed to no evidence that TE remained in her classroom for any reason connected to a Code ground or that she suffered any adverse consequences from TE's presence. The applicant submitted that any issues were caused by the students and there was no classroom management problem. First, there was no allegation that the respondent expressed any concern about her classroom management skills related to these events. Second, on the applicant's account, the class was a difficult one and she benefited from TE's presence. Accordingly, I find the applicant has no reasonable prospect of showing that this incident amounts to a violation of her Code rights by the respondent. Again, the applicant complained repeatedly about over supervision, where principals or teachers observed her class, but did not point to evidence that could support an inference that any of the Code grounds on which she relies was a factor in any of the incidents.
26The third alleged incident that occurred during the limitation period was on February 19, 2013 at Kernahan Park Secondary School. The applicant described her experience in the classroom, which again involve dealing with a number of classroom issues, including a student arriving late, requests to use the washroom, issuing hall passes, threats from student seeking a second pass, and dealing with a student who walked out of class. The applicant tried to use the intercom to request assistance from the office, but it was not functioning.
27On February 21, 2013, the applicant received a telephone call from the vice principal of the school. The vice principal advised the applicant that he had received complaints about her actions in the classroom on February 19, 2013, including:
blocking the door and not allowing students to leave the classroom;
not allowing a student to go to the office to change the gauze on her hand;
not allowing a student to come in to the class; and,
keeping the door to the classroom closed.
28The applicant described the explanation she provided to the vice principal regarding each issue and also provided additional context regarding the circumstances in the classroom that she gave to the vice principal. She also explained that she tried to call the office, but the intercom was not working. On their face, and assuming them to be true, the applicant's explanations do not appear to be unreasonable.
29On March 20, 2013, the applicant attended a meeting regarding an incident report filed about her actions on February 19, 2013. During the meeting, Superintendent Morgan put the same allegations to the applicant and she provided essentially the same responses to the complaints against her. On March 27, 2013, the applicant received a formal written reprimand from Mr. Morgan related to ineffective classroom management. On the face of the document, it appears that Mr. Morgan accepted all of the allegations leveled at the applicant and gave no weight to her account of the events of that day or her actions. There is no explanation for this apparent finding of fact. The applicant submitted that the respondent began to treat her differently after Mr. Morgan became the Superintendent of Human Resources. Specifically, the applicant states that, under Mr. Morgan, the respondent began to deal with her in a more formal and severe manner, resulting in repeated documentation of perceived classroom management deficiencies. The applicant disputes that she lacks classroom management skills and submitted that "classroom management" is a pretext for the respondent to build a case to dismiss her because she is different. I appreciate the respondent's position is that the applicant does indeed lack classroom management skills and the steps it is taking to have applicant address this deficiency are justified. However, for the purposes of his summary hearing, the applicant’s allegations are assumed to be true. In the circumstances I am unable to find this allegation has no reasonable prospect of success. Pursuant to Rule 19A.6, I do not consider it necessary or useful to provide further reasons.
30While the allegations regarding the discipline the applicant received regarding the February 19, 2013 shall continue, I find her allegation that she was “over supervised” on February 19, 2013 has no reasonable prospect of success. The applicant did not state in the Application how she was over supervised on February 19, 2013. During his summary hearing, the applicant stated that the Educational Assistant working in a class "was there to supervise me". Other than this bare assertion, the applicant pointed to no evidence that the Educational Assistant did anything that would be considered to be "supervisory" or evidence that could connect anything the Educational Assistant did to a prohibited ground of discrimination. Accordingly I find this allegation has no reasonable prospect of success.
Delay
31The allegations regarding the incident of February 19, 2013 shall continue. Accordingly, the issue before me with respect to delay is whether the incidents alleged to have occurred outside the limitation period form a series with the incident of February 19, 2013. If they do not form a series, I must determine whether the delay was incurred in good faith and no substantial prejudice will result as a result of the delay.
32The Tribunal has considered the issue of what amounts to a series of incidents for the purposes of section 34(1)(b) of the Code on several occasions. In doing so, the Tribunal developed principles for evaluating whether incidents alleged to have occurred more than one year before an Application is filed amount to a series of incidents. The Tribunal has held that to form a series of incidents there must at least be some connection or nexus between the incidents that are alleged to form the series, and a series cannot be comprised of incidents relating to discrete and separate issues. See, Baisa v. Skills for Change, 2010 HRTO 1621. Similarly, the Tribunal has found that incidents involving different facts and engaging different grounds under the Code cannot form a series of incidents for the purposes of section 34(1)(b). See, Polihronakos v. Mississauga (City), 2010 HRTO 1433. The Tribunal has also held that incidents separated by a gap in time by a year or more will generally not be considered a series. See, Chintaman v. Toronto District School Board, 2009 HRTO 1225 and Savage v. Toronto Transit Commission, 2010 HRTO 1360. However, a temporal gap of more than a year is not always decisive in assessing whether incidents amount to a series. See, Henry v. Waterloo (Regional Municipality), 2011 HRTO 1927 and Labao v. Toronto Police Services Board, 2012 HRTO 1529. In Garrie v. Janus Joan Inc., 2012 HRTO 1955, a Panel of the Tribunal reviewed the Tribunal’s case law concerning the meaning of “series of events” in section 34 and concluded:
A review of the Tribunal’s jurisprudence under section 34(1) suggests that the following factors will generally be relevant to the Tribunal’s determination of whether or not allegations of discrimination are timely because they relate to a “series of incidents”:
a. What is the last alleged incident of discrimination to which the Application relates?
b. Do the allegations relate to a series of separate and independent incidents of discrimination or do they relate to the continuing effect of a single incident of discrimination?
c. What is the nature or character of the alleged discrimination and is it part of a pattern or series of incidents of a similar nature or character?
d. What is the temporal gap between alleged incidents of discrimination?
33The Tribunal’s approach to delay and the issue of what amounts to “good faith” for the purposes of section 34(2) is set out in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paragraphs 24 and 25:
In my view, where an applicant seeks to establish that a delay in filing an Application was “incurred” in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their Application within one year, when they may seek to pursue a human rights claim.
In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2). For example, in Klein v. Toronto Zionist Council, 2009 HRTO 241, the Tribunal held that an applicant cannot justify a delay on the basis that they only later discovered evidence which would assist in proving their claim. In Lutz v. Toronto (City), 2009 HRTO 1137, the Tribunal held, referring to a number of Court decisions, that a delay may be found not to have been incurred in good faith where a party says simply that they were not aware of their rights, and made no inquires about options for pursuing the alleged wrong.
34The Tribunal has stated on a number of occasions that pursuing other avenues of redress before turning to the Tribunal will not normally be accepted as a good faith explanation for delay. Similarly, ignorance of one’s rights may in some circumstances amount to good faith, but the applicant must also establish that he had no reason to make inquiries about his rights. See, for example, Ramnath v. Peel Regional Police 2010 HRTO 548 at paragraphs 12 and 14, and Thomas v. Toronto Transit Commission, 2009 HRTO 1582. The Tribunal has also stated that an applicant who wishes to pursue remedies in other forums must also file an Application with this Tribunal to ensure the Application is filed within the one-year time limit. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.
35I begin by noting that there are significant temporal gaps in the applicant’s allegations. The most recent gap is between incidents alleged over supervision on January 28, 2009 and February 22, 2010. The applicant alleges that the teachers she was replacing on January 20, 2009 at Heximer Elementary School directed her students to report to the school administration if the class was out of control. The next alleged incident occurred on February 22, 2010 at James Morden Elementary School when the vice principal of the school observed her class for most of the day. The applicant did not address of the temporal gaps in her allegations, but in any event the allegations on either end of the most recent gap, although both are described as "over supervision", are quite different allegations involving different circumstances and people. As a result, these incidents do not share any thematic or factual connection in addition to the significant temporal gap between them. In these circumstances, I find any series of events would be interrupted after February 22, 2010 and that all incidents alleged to have occurred before that date do not for a series with the later allegations or with the incident of February 19, 2013.
36The applicant states that her most recent interview for a LTO position was on January 30, 2013 at Fort Erie Secondary School. The applicant also interviewed to be placed on the LTO list on March 2, 2013. She was not successful in either case. During the interview at Fort Erie Secondary School, the principal expressed concern that the students would have difficulty understanding the applicant because of her accent. This allegation of discrimination in hiring has no connection to the incident of February 19, 2013, which the applicant alleges was an incident of discriminatory discipline. The personnel involved were also entirely different and there is no indication that the incidents were connected. The applicant provided no basis – beyond her lack of success – for concluding her failure to be chosen for the LTO list was discriminatory and did not in any event describe any connection between this occurrence and the incident of February 19, 2013. The next most recent interview the applicant attended was on January 29, 2010. In these circumstances, I find that the respondent's decision not to hire the applicant into LTO position does not form part of the series of incidents with the incident on February 19, 2013.
37There was only one incident where the applicant alleged she was "not welcome" within one year of February 19, 2013. This occurred on February 6, 2013 at Richmond St. Elementary School, where the principal reduced the applicant's full-day assignment to a half day. Again, the issues and personnel involved in the two incidents are different and I find that there is insufficient connection for them to form a series of events. The next most recent example of the applicant being not welcome is alleged to have occurred on October 19, 2010, over three years earlier, which in my view is too far removed to form part of a series.
38In my view, the applicant's allegations that she was "over supervised" do not have sufficient connection or similarity to the February 19, 2013 incident to form a series. Again, the applicant alleged that on several occasions, teachers or administrators would observe her class. On other occasions, the applicant states that Educational Assistants working in her classroom would report to administration about her. As noted above, the applicant did not point to evidence that we connect these allegations to a prohibited ground of discrimination. In any event, these allegations are distinct from the incident of February 19, 2013, were the applicant alleges she received unwarranted discipline, where her explanation and version of events appears to have been ignored. Accordingly I find that applicant allegations of "over supervision" do not form a series of events with the allegations of February 19, 2013.
39On the other hand, I find that the allegations the applicant characterized as "the main cases" of discrimination form a series of incidents with the alleged incident on February 19, 2013 for the purposes of section 34(1)(b). These are the incidents occurring on March 7 and 9, 2011 at Beamsville District Secondary school; on June 17, 2011 at Queen Mary Elementary School; on December 5, 2011 at Winger Elementary School; and, on November 8, 2012 at Kernahan Park Secondary School. In each case, the applicant described a difficult teaching assignment that led to an investigation of her actions and decisions in the classroom. The applicant's explanations and versions of events seem to have been disregarded in each case. While the incidents arose for the most part in different schools, the decision to caution or discipline the applicant was in each case taken by the Superintendent of Human Resources, Jim Morgan. Consequently, these alleged incidents appeared to be both thematically and factually similar. The temporal gaps between incidents are not sufficient to interrupt the series under the Tribunal's jurisprudence. Consequently I find in these incidents do form a series of incidents for the purposes of section 34(1)(b) and are therefore timely.
40The remainder of the applicant’s allegations alleged to have occurred prior to February 18, 2013 do not form a series of events with the applicant’s timely allegation. I find that the applicant has not provided a good faith explanation for the delay regarding these allegations.
41The applicant’s made three submissions to support her position that any delay was incurred in good faith: (1) that she feared reprisal, (2) that she was unaware of the ability to file an Application to this Tribunal or file a grievance with her union until September 2013, and (3) her union caused delays and colluded with the respondent. Some of the Tribunal’s case law indicates that fear of reprisal may not amount to a good faith explanation for delay. See Kerry v. City of Ottawa, 2011 HRTO 1940 and Darroch v. Lakeshore (Town), 2015 HRTO 919. The Tribunal has also found that a bald assertion of fear of reprisal does not amount to a good faith explanation and that an applicant seeking to rely on a fear of reprisal as a good faith explanation for delay in filing an Application is required at a minimum to provide a reasonable basis to believe that reprisal was a real possibility. See Ellis v. Ontario Secondary School Teachers’ Federation, 2010 HRTO 2162 and Abedi v. Hôpital Montfort, 2015 HRTO 342. In this case, the applicant simply asserted that she feared reprisal if she complained, but provided no particulars that could provide a reasonable basis that her fear was a reasonable one. In my view, the applicant’s bare assertion of fear of reprisal does not amount to a good faith explanation for delay.
42The applicant believes that the respondent has discriminated against her and harassed her in violation of her Code rights for over a decade. In these circumstances, the applicant had every reason to investigate her rights, including the ability to seek redress for the alleged violation of her rights by filing an Application to this Tribunal. The applicant, however, did not become aware of the ability to file an Application until September 2003. In my view, the applicant did not act with the due diligence expected of applicants under the Code and her ignorance of her rights under the Code does not amount to a good faith explanation for her delay.
43The applicant states that her union caused delays and colluded with the respondent. Even assuming they are true, these allegations do not explain why the applicant did not file an Application in a timely manner. To the extent the applicant was waiting for her union to act, the Tribunal’s jurisprudence is clear that pursuing redress in another forum is not a good faith explanation for delay.
44Having found that the applicant has not provided a good faith explanation for her delay in filing the Application, I need not address the issue of prejudice. The allegations alleged to have occurred more than one year prior to the filing date of the Application that are not part a series with the alleged incident of February 19, 2013 are dismissed for delay.
Section 45.1
45Section 45.1 of the Code states as follows
The Tribunal may dismiss an Application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the Application.
46As noted above, this Application was deferred pending the conclusion of a related grievance proceeding. Specifically, the applicant’s union filed a grievance regarding the letter of reprimand the respondent issued to her regarding her actions on February 19, 2013. The grievance was scheduled to proceed to arbitration, but the letter was removed from the applicant’s personnel file pursuant to a sunset clause in the collective agreement between the union and respondent. The arbitration was cancelled following an exchange of letters between counsel. The respondent submitted that grievance procedure resolved the issue that precipitated the Application, i.e., the letter of reprimand. The respondent submitted that, therefore, the Application should be dismissed pursuant to section 45.1 as the substance of the Application had been appropriately dealt with in the grievance process.
Analysis and Decision
47The Tribunal’s jurisprudence is clear that a labour arbitration is a proceeding for the purposes of section 45.1. There is no doubt that the Tribunal has on several occasions found a labour arbitrator’s decision to have appropriately dealt with the substance of an Application and dismissed the Application accordingly. See Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297 and Paterno v. Salvation Army, 2011 HRTO 2298. The Tribunal has also found that a settlement of a union grievance based on the same facts and issues arising in an Application, is a proceeding that has appropriately dealt the substance of the Application. See Dunn v. Sault Ste. Marie (City), 2008 HRTO 149; Vere v. Canadian Auto Workers, 2011 HRTO 748; and, Van Barneveld v. I.O.O.F. Seniors Homes, 2009 HRTO 448.
48In this case, however, the union and respondent did not settle the issue of the letter of reprimand during the grievance process and there was no labour arbitration because it was cancelled. I also note that the letter from the union’s counsel agreeing to cancel the arbitration explicitly stated that the conclusion of the grievance was without prejudice to the applicant’s right to pursue her Application to this Tribunal. Rather, the letter of reprimand was removed from the applicant’s personnel by operation of a sunset clause in the collective agreement, as noted above. I find, as a result, that no proceeding dealt with the letter of reprimand, and, accordingly, section 45.1 does not apply to these circumstances.
Order
49The Tribunal orders as follows:
The Application shall continue regarding the applicant allegations regarding the incidents occurring on March 7 and 9, 2011 at Beamsville District Secondary School; on June 17, 2011 at Queen Mary Elementary School; on December 5, 2011 at Winger Elementary School; on November 8, 2012 at Kernahan Park Secondary School; and, on February 19, 2013 at Kernahan Park Secondary School;
All of the applicant’s other allegations are dismissed;
Within 14 days of the date of this Interim Decision, the respondent shall file a Response to a Request for Order regarding the Request for an Order During Proceedings filed by the applicant on March 20, 2017; and,
The Tribunal shall schedule this matter for a two day hearing.
Dated at Toronto, this 22nd day of August, 2017.
“Signed by”
Douglas Sanderson
Vice-chair