Moodie v. Peel District School Board, 2017 HRTO 1349

Anthony Robert Moodie

Applicant

-and-

Peel District School Board, Janet Rogers, Nancy Chew, Lynn Shire and Marc Cianfrini

Respondents

Adjudicator: Josée Bouchard Date: October 12, 2017 Citation: 2017 HRTO 1349 Indexed as: Moodie v. Peel District School Board

APPEARANCES

Anthony Robert Moodie, Applicant Self-represented

Peel District School Board, Janet Rogers, Nancy Chew, Lynn Shire, and Marc Cianfrini, Respondents Roy C. Filion, Counsel

introduction

1The applicant filed this Application on April 29, 2016, alleging discrimination with respect to employment because of race, colour, ancestry, ethnic origin, family status and age and that he was subject to reprisal or threat of reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The respondents filed a Response on August 31, 2016, and the applicant filed his Reply on October 7, 2016.

3On February 3, 2017, the applicant filed a Request for an Order During Proceedings seeking to amend the Application to add allegations of continuing reprisal. The respondents did not oppose the request.

4On February 24, 2017, the respondents filed a Request for Summary Hearing and an amended Response to the amended Application. On March 31, 2017, the applicant filed a Response to the Request for Summary Hearing and an amended Reply. On April 12, 2017, the respondents filed their objection to the amended Reply because it does not comply with Rule 9.2 of the Rules of Procedure as it deals with new allegations and particulars.

5The Tribunal issued a Case Assessment Direction (“CAD”) on April 20, 2017, directing a summary hearing to address the following:

a. whether all or part of the Application is outside of the Tribunal’s jurisdiction because it was filed beyond the one-year time limit contemplated by section 34 of the Code; and/or

b. whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed.

6The CAD further stated that the Tribunal may consider a request to remove the personal respondents as parties to the Application.

7On May 25, 2017, the applicant filed documents for the summary hearing, which allege that he is still the subject of reprisal.

8On May 25, 2017, the respondents filed their objection to the additional documents arguing that they raise new allegations and materials and they should be struck from the record.

9The Tribunal held the summary hearing on August 28, 2017. At the hearing, the applicant explained that he would rely on the grounds of race, colour, ancestry, ethnic origin and reprisal or threat of reprisal but that he no longer alleges discrimination based on age or family status.

10This Decision addresses the following:

a. whether all or part of the Application is outside of the Tribunal’s jurisdiction because it was filed beyond the one-year time limit contemplated by section 34 of the Code;

b. whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed; and/or

c. whether the applicant’s additional documents filed on May 25, 2017 should be struck because they contain new allegations and materials.

11In view of my order that the Application is dismissed, it is not necessary to consider whether the personal respondents should be removed as parties to the Application.

the parties

12The applicant, Anthony Moodie, has been employed with the corporate respondent, the Peel District School Board (“the Board”), in occasional teaching positions since 2008. He successfully applied to the Board's Long-Term Occasional (“LTO”) Teaching List on September 3, 2013. In his Application, the applicant identifies himself as a person from a bi-racial union. The Board is a large public school board which serves the Regional Municipality of Peel. The terms and conditions of the applicant's employment are governed by a Collective Agreement between the Board and the Ontario Secondary School Teachers' Federation (“the Union”).

13During the material time, Ms. Chew was the Principal of Bramalea Secondary School (“Bramalea”), Ms. Rogers was a Vice-Principal of Bramalea, Ms. Shire was the Vice-Principal of Harold M. Brathwaite Secondary School (“Brathwaite”), and Mr. Cianfrini was a Vice-Principal of Bramalea.

background

14In his Application, the applicant made allegations that took place over several years. At the hearing, the applicant indicated that the allegations that took place prior to his employment with Bramalea are provided as contextual background but he does not rely on those allegations to show discrimination.

Applicant’s Position at Bramalea

The applicant’s submissions

15The applicant was employed as an LTO teacher at Bramalea from October 6, 2014 to January 29, 2015. He submits that during that tenure, he experienced the most demeaning form of racially motivated discrimination.

16The applicant states that while at Bramalea, two Vice-Principals, Mr. Cianfrini and Ms. Rogers, accused him of being racist, and their actions were supported by the Principal, Ms. Chew.

17The applicant explains that on October 14, 2014, he had an argument with a student in his Grade 11 Introduction to Financial Accounting class. The student was the nephew of another student in the class. The student and the applicant had a conversation in which the applicant refused to believe the student’s statement that his peer in the class was his aunt. This led to an exchange between the applicant and the student.

18The applicant states that he found the student’s behaviour unacceptable and called the parents. The applicant submits that when he finally reached the student’s mother, she accused him of calling her son a liar.

19The applicant maintains that he requested an in-person meeting with the parent and the student, and asked that a member of the administration be present. Ms. Rogers attended the meeting held on October 22, 2014.

20The applicant submits that during the meeting, the events of October 14, 2014 were discussed. The student and his mother recounted their versions of events. The applicant recalled that Ms. Rogers, upon realizing that there would be no resolution of the matter, said to him, “we are not going further with it. You (the applicant) can tell me your story later”.

21The applicant maintains that shortly after this meeting, Mr. Cianfrini approached him to discuss issues unrelated to the events with the student. The applicant recalls that Mr. Cianfrini asked what the meeting with the student was about. The applicant replied, “I was having a problem with a student”. According to the applicant, Mr. Cianfrini thought that the applicant had referred to the student’s mother as “that white mother”. The applicant maintains that Mr. Cianfrini reported the exchange to Ms. Rogers, who then tried to discipline him.

22The applicant states that the next day he met with Ms. Rogers and Mr. Cianfrini. Ms. Rogers said to the applicant that he had shouted at the student’s mother several times during the October 22, 2014 meeting. The applicant denies this. The applicant maintains that Ms. Rogers added, “you said the mother was a white mother” and he replied that he did not say that.

23The applicant submits that this incident labeled him a racist. In his view, Mr. Cianfrini did not comprehend or hear what was spoken as he was unable to put the words “that white mother” in context.

24Bramalea received other separate and unrelated student complaints about the applicant. The applicant maintains that on November 24, 2014, there was a student petition against him, which was never brought to the applicant’s attention. He only found out because a student told him about it. The applicant submits that the petition was flawed as students in his class could not get enough names so they added friends that were not even in his class.

25Another meeting was held with the applicant on December 2, 2014. The applicant, Ms. Rogers, Ms. Chew, and the Union President were in attendance. The applicant recalls that the participants tried to hand him a letter of expectation but he refused to take it.

26The applicant maintains that on January 8, 2015, he met with his Union representative, Ms. Rogers and Ms. Chew. At that meeting, they attempted to give him a letter of expectation. The applicant recalls that he refused to take the letter as no one would explain to him why the letter was required.

27The applicant maintains that he worked for the rest of the year. Although Ms. Chew had promised to give him a recommendation at the end of his tenure, she refused to do so. He believes that this refusal was racially motivated.

28The applicant states that he did not file an application with the Tribunal at the time because he thought the Union would file a grievance for him. The Union did not. It only grieved for the days he worked above and beyond what is prescribed in the collective agreement.

29The applicant submits that the other incidents that later occurred at other schools were all acts of reprisal for allegedly having called the student’s mother “that white mother”. He argues that he was labeled a racist, which was a factor in the way he was subsequently treated.

The Respondents’ Submissions

30The respondents argue that all of the alleged incidents that happened at Bramalea occurred more than one year and three months before the Application was filed and they cannot reasonably be found to form a “series” with any timely alleged events. The respondents submit that the applicant has not demonstrated a good faith explanation for the delay in filing the Application in respect of these allegations and these allegations are out of time pursuant to s. 34 of the Code.

31The respondents submit that on October 14, 2014, the applicant was taking attendance. He called one student’s name and a second student indicated that the first student was absent that day. The student told the applicant that the absent student was his aunt. The respondents maintain that the applicant did not believe this statement and accused the student of lying. The applicant took the student into the hall and indicated that he was “never” to use a “tone” with the applicant in class again or he would be “taken” to the office.

32The respondents maintain that as a result of this incident, the student’s mother telephoned the school to speak to the applicant but he refused to talk to her and instead requested an in-person meeting with the parent, the student and a member of the administration. Ms. Rogers attended the October 22, 2014 meeting.

33The respondents submit that at the meeting, the student's mother sought the applicant's explanation and indicated that she was concerned about the nature of the relationship between the applicant and her son. The respondents maintain that the applicant raised general concerns about the student and he raised his voice repeatedly. Eventually, the student’s mother stated that she felt this behaviour was threatening. Ms. Rogers concluded the meeting without a resolution.

34The respondents maintain that immediately after the meeting, Mr. Cianfrini approached the applicant to discuss an unrelated matter. While Mr. Cianfrini was speaking to the applicant, the applicant began behaving in a loud and agitated manner. The applicant engaged in a tirade about the student, referring to his mother as “that white mother”.

35The respondents contend that a further meeting was held with the applicant on October 23, 2014, in which Ms. Rogers and Mr. Cianfrini discussed the applicant's behaviour. Mr. Cianfrini and Ms. Rogers explained various ways in which the applicant could attempt to ensure a respectful learning environment. The respondents describe the applicant’s behaviour at that meeting as agitated and he repeatedly raised his voice.

36The respondents maintain that in November 2014, a student petition was delivered to the school administration about the applicant’s teaching and his demeaning behaviour in class.

37On December 2, 2014, Ms. Rogers, Ms. Chew, and the Union President held another meeting with the applicant to discuss the October 2014 events. The respondents describe the applicant as highly argumentative during the meeting. As a result, a letter of expectation was prepared to remind the applicant of how he was expected to behave and treat others at work.

38The respondents maintain that in a meeting with the applicant and his Union representative on January 8, 2015, Ms. Rogers and Ms. Chew attempted to deliver the letter of expectation. In doing so, they told him that the letter was not disciplinary in nature and would not be filed in his permanent file. The applicant refused the letter and was unduly argumentative.

39The respondents maintain that the letter of expectation refers to Mr. Cianfrini having said that the applicant referred to the student’s mother as “that white mother”. The letter also notes that the applicant denied calling the student’s mother “that white mother”. The letter makes no findings of fact as to whether the comment was made.

40The respondents argue that there are no allegations that racist comments were made to the applicant or that the comment “that white mother” was racist. The applicant finished his tenure at Bramalea as anticipated in January 2015 without discipline.

Incidents following bramalea

Applicant’s Submissions

41The applicant argues that all alleged incidents following Bramalea are in reprisal for having been labeled a racist.

Louise Arbour Posting – March 15, 2015

42The applicant maintains that in March 2015, he was considered for an LTO position at the Louise Arbour Secondary School (“Louise Arbour”). The applicant was told on March 13, 2015, after what he considered a successful interview, that his employment would be contingent upon his references. He was told two days later that he was unsuccessful because of his references. The applicant maintains that the Principal at Louise Arbour refused to provide feedback on the interview process. The applicant went to a second interview about two weeks later. He notes that this position was later filled by an unqualified individual.

43The applicant submits that as a result of a negative reference from the Bramalea Principal, Ms. Chew, he lost the opportunity to work at Louise Arbour.

Brathwaite – April 2015

44The applicant submits that in April 2015, Ms. Shire, who was then Vice-Principal at Brathwaite, instructed the LTO Union to remove the applicant from the preferential LTO list. The applicant maintains that she refused to provide the reason for removing his name but assumes that it was because he asked a student if she was blind. The applicant believes that Ms. Shire decided he would never be employed again. The applicant could not point to any evidence to show that his name was removed from the list.

45The applicant maintains that in or around May 2015, he made an Application for Related Experience. Such applications allow teachers to be credited for related work experience outside the Board.

46The applicant submits that as a result of the alleged incident at Bramalea, it took an inordinate amount of time to process his Application, which he notes was handled by Ms. Chew.

47The applicant maintains that in September 2015, he approached the Board and was told it required a document that was never provided to the applicant.

48The applicant maintains that on November 6, 2015, Ms. Chew contacted him to ask for additional information that had previously been provided. In addition, she asked that he provide an affidavit to verify and support his employment, and more specifically attest to all half-days and full-days he worked covering a period of ten years, starting 20 years earlier. The applicant submits that the process to complete an Application for Related Experience would normally not exceed six weeks but the Board took over ten months to process his Application.

Mississauga Secondary School Posting – September 2015

49The applicant maintains that he was interviewed for a business position on September 3, 2015, at Mississauga Secondary School (“Mississauga”). Shortly before he was to receive a reply concerning the position, he received the following message: “There was an error in our posting. We will be posting the job again”.

50The applicant maintains that the position was re-posted, but instead of being for a position of accounting, marketing and merchandizing, it became accounting and entrepreneur. The applicant notes that the qualifications for the first job were the same as the re-posted job and as such any successful candidate interviewed for the first job had the qualification to teach the second posting. The applicant interpreted this as a way for the Principal to exclude him from positions at the school.

Chinguacousy Secondary School Posting – March 2016

51The applicant maintains that on March 21, 2016, a Vice-Principal from the Chinguacousy Secondary School (“Chinguacousy”) called to inform him that they had a temporary vacancy for a business teacher and asked if he was interested. The applicant indicated his interest and he was invited to start the next day in an occasional teacher's role until it could be determined how long the teacher would be away from work.

52The next morning, the Vice-Principal introduced himself to the applicant and gave him an orientation. He was introduced to the head of the business and guidance department and to another business teacher who offered to help him as required. The Vice-Principal also informed the applicant that he originally got his name from the top of the business roster of the LTO list.

53During the introduction, the applicant was given a reference check form, which indicated that the position could become an LTO position. The Board's policies and procedures require that the Principal of the last completed LTO posting provide a reference. Accordingly, the applicant had to provide a reference from Ms. Chew.

54The applicant requested a meeting with the Vice-Principal and informed him that it was more than likely that he would receive an adverse recommendation. The Vice-Principal requested details. The applicant suggested that the Principal providing the reference would be best suited to provide details. The Vice-Principal told the applicant he would inform him of his employability once he received the information from the Principal at Bramalea.

55On March 23, 2015, after school ended, the Vice-Principal and Principal asked to meet with the applicant. The applicant was informed that, based on his references, they were not prepared to move forward with his employment.

Glenforest Posting – April 2016

56The applicant maintains that on April 14, 2016, the Vice-Principal of Glenforest Secondary School (“Glenforest”) called to inform him that there was a position to teach business and law. She explained that he was selected from the top of the LTO list. The applicant was told that the position would be an LTO and he informed her that it was more than likely that he would receive an adverse recommendation from the mandatory last LTO reference.

57After a brief discussion, the Vice-Principal agreed to contact Ms. Chew to determine the applicant’s eligibility for the position. The applicant explains that he pursued this avenue with the students’ interest in mind, as it would create disruption for them if after teaching for a few days he was not selected for the LTO position because of his references. The applicant received the following response from the Vice-Principal: “We had another candidate who accepted the position”. This led the applicant to deduce that under the current circumstances, he was being subjected to reprisal, based on racial discrimination, which hindered his career.

Other Allegations of Reprisal

58The applicant argues that the Board’s current practices are different from those previously practiced toward him and these actions are reprisal. The specific actions practiced subsequent to the filing of the Application are:

a. The refusal to allow the applicant to teach the summer classes that he has taught for six years.

b. The continued practice that reduces his LTO employment to inclement weather days.

May 25, 2017 Allegations – Meadowvale High School

59On May 25, 2017, the applicant filed additional documents with the Tribunal seeking to add new allegations of ongoing reprisal. More specifically, the applicant alleges that, while in a position at Meadowvale High School (“Meadowvale”) between February and June 2017, he used a Google classroom platform recommended by the Board as a teaching tool. The applicant notes that this assignment was the first offered to him after a two-year informal suspension. The applicant maintains that the site is accessible to some of the Board’s personnel and students. The applicant alleges that the website in question included racial, homophobic, derogatory, genocidal, demeaning and humiliating postings and he felt personally targeted by this. He reported the matter to the Peel Regional Police but he never received a response.

The Respondents’ Submission

Louise Arbour Posting – March 15, 2015

60The respondents maintain that in March 2015, the applicant was interviewed for two LTO postings at Louise Arbour but was not successful.

61The respondents argue that all of the incidents in respect of this posting occurred more than one year and three months before the Application was filed and are out of time pursuant to s. 34 of the Code.

62The respondents state that as an applicant to LTO postings, the applicant is required to provide references. During his tenure at Bramalea, the applicant was observed to be combative and argumentative. As part of the reference check process for the Louise Arbour postings, Ms. Chew was required to report that recommendations for improvement were made during the applicant's time at Bramalea and the nature of the recommendations. As a result, his reference from Ms. Chew was not particularly positive. However, the Board submits that one unfavourable reference is not dispositive of a job application if balanced against a successful interview. In addition, the Board’s procedure is to ask for three references.

63The respondents argue that the applicant was not successful in either posting at Louise Arbour because his interview combined with the reference from Ms. Chew indicated that he was not the strongest for the position.

64The respondents submit that the applicant failed to plead any particulars with respect to how his failure to be awarded either position at Louise Arbour was related to a Code-protected ground.

Brathwaite – April 2015

65The respondents submit that the applicant was accepted to a supply teaching position at Brathwaite in February 2015.

66The respondents argue that the allegations of what occurred at Brathwaite are more than one year and two months before the Application was filed and are out of time pursuant to s. 34 of the Code.

67The respondents submit that on February 23, 2015, the Brathwaite administration received a call from the parent of a student reporting a complaint about the applicant.

68The respondents maintain that the applicant attended at the main office the morning after the complaint, having apparently been notified of the complaint. Ms. Shire informed the applicant that she was not yet aware of the particulars of the complaint and that Board procedures required that she take a statement from the student before interviewing the applicant about the complaint. Although he had just been told that it was inappropriate to do so, the applicant remained in Ms. Shire's office and continued to speak to Ms. Shire about his version of the events.

69The respondents submit that the complaint was fully investigated in accordance with the Board's policies and procedures. As a result of the investigation, the school administration determined that it was necessary to take a formal statement from the applicant.

70The applicant was invited to attend a meeting with Ms. Shire and his Union representative on March 12, 2015 but he refused to attend and never notified them. The applicant was informed that he would not be placed on the school's preferred supply teaching list until he attended a meeting in respect of these events. The applicant did not follow up with the school administration.

71The respondents submit that the applicant's assertion that he has been removed from the preferential LTO list at Brathwaite is completely without merit. The applicant refused to participate in an investigation meeting and was duly informed that he would not be hired into a new occasional teaching position at the school until he attended a meeting with the administration.

72The respondents maintain that in or around May 2015, the applicant filed an Application for Related Experience. In order for a teacher's related work experience to be recognized, the Board must receive documentation of the related experience, which must include the number of hours, days and location of teaching and the subject-matter.

73The respondents state that the applicant delivered his Application for Related Experience to Ms. Chew, as she was the Principal where he taught the financial courses to which his prior experience allegedly related. Ms. Chew approved the applicant's Application for Related Experience in June 2015.

74The respondents explain that Applications for Related Experience are processed by the Board and where insufficient information has been provided, the school administrator is asked to clarify requirements and obtain further information from the teacher. It can take several months to gather sufficient information to process an Application for Related Experience.

75In this particular instance, the respondents submit that the applicant's initial documentation was insufficient. Specifically, it was not clear how the “related” duties related to the Applicant's teaching assignment, and how many days of related experience the applicant was attempting to claim. Consequently, in October 2015, Ms. Chew informed the applicant that an affidavit explaining his experience would be required.

76The respondents state that the applicant and Ms. Chew met to discuss his affidavit in support of the Application on November 26, 2015. During this time, the applicant was disrespectful to Ms. Chew.

77The Board submits that the applicant's Application for Related Experience was processed as expeditiously as possible and denies that the administrative delay in processing the Application is in any way related to any Code-protected grounds.

The Mississauga Posting – September 2015

78The applicant applied for an Accounting LTO position at Mississauga in or around September 2015. Three teachers on the LTO list also applied. The respondents submit that the successful applicant was higher than the applicant on the seniority list. Additionally, the applicant did not pass the interview portion of the job application and the applicant's references were therefore not consulted.

79The respondents submit that the allegations in respect of this posting are without merit and not related to a Code-protected ground.

March 2016: The Chinguacousy Posting

80The applicant was hired as a supply teacher at Chinguacousy on November 27, 2015, March 22 and 23, 2016, and May 11, 2016.

81The respondents state that where a short-term vacancy is posted, applicants to the position are not always required to provide references. However, where a short-term vacancy unexpectedly becomes a long-term posting, it is the Board's practice to check references of the supply teacher in the role instead of posting the job.

82The position the applicant was filling on March 22 and 23, 2016 unexpectedly became a long-term vacancy. As such, the applicant was requested to provide references in order to remain in the position as an LTO. The applicant's reference from Ms. Chew was not considered acceptable and the applicant did not get the LTO position.

83The respondents submit that this event is a continuing effect of the applicant being given a negative reference as a result of his tenure at Bramalea. The applicant was informed of the negative reference on or about March 17, 2015, over one full year before he was asked to provide a reference for the position at Chinguacousy.

84The respondents argue that each new instance of a negative reference being given does not result in a new “event” for the purposes of the Code and this alleged incident is merely a continuing effect of the first instance of a negative reference, which is untimely.

April 2016: The Glenforest Posting

85In April 2016, the applicant applied to a posting at Glenforest. This posting was for a position to be filled the next day on an emergency basis resulting from a teacher illness.

86The respondents state that the applicant was offered this position, but volunteered that if the Principal of the school contacted his references, Ms. Chew would give him a negative reference. The Principal understood this to be a refusal of the offer and instead offered the position to the next occasional teacher. Ms. Chew has no recollection of being contacted to provide a reference for this position, nor does the school Principal recall checking the applicant’s references.

87The respondents submit that the allegations in respect of this posting are without merit and the applicant has no basis for his assertion that he was unsuccessful because of a Code-protected ground.

Other Allegations of Reprisal

88On or about February 3, 2017, the applicant filed an additional request that included new allegations of reprisal. The respondents submit that the applicant has not demonstrated he will be able to provide evidence in support of his allegations of reprisal.

89The respondents submit that the applicant argues that he has been reprised against because he was not provided with a summer teaching position in 2016. The respondents state that in 2013 and 2014, the applicant was offered summer school positions at Sandalwood Secondary School but in 2015, the class was cancelled due to low enrolment. The applicant was offered another position and that class was also cancelled due to low enrolment. The applicant was offered an alternative position in a summer class at Clarkson Secondary School.

90In 2016, the site for the class was moved to Meadowvale. In February 2016, the applicant was offered a position to teach a summer class but he was subsequently informed that due to low student enrolment, the class would be cancelled. The applicant was not offered a teaching position in a different summer class because first-consideration teachers had already been assigned to all other courses for which the applicant was qualified.

91The respondents argue that the applicant has failed to plead any particulars to support his assertions that he was not provided a summer position in 2016 because of his initiation of a human rights Application.

May 25, 2017 Allegations – Meadowvale High School

92The respondents object to the applicant’s new allegations and materials related to Meadowvale in their entirety. The respondents submit that the materials and allegations would improperly expand the scope of the Application at a late period in the process. The allegations added in May 2017 relate to extremely offensive images and messages posted on a Google class account. The author of the posts and their aim are unknown. The matter has been referred to the Peel Regional Police and, as far as the respondents know, is under investigation. The respondents maintain that the applicant failed to raise these allegations and materials at any point in the Application and Tribunal process and never notified the respondents of the concerns he now raises before the Tribunal. The respondents admit that the materials and context are extremely offensive and unacceptable but there is no evidence that they are connected to the allegations raised in the Application.

DECISION AND ANALYSIS

No Reasonable Prospect of Success

93The nature of a summary hearing has been set out in Dabic v. Windsor Police Services, 2010 HRTO 1994 at paras. 7-9. The focus of a summary hearing is on whether, assuming all the allegations to be true, there is a reasonable prospect that the applicant can show a link between what happened to him and the prohibited ground of disability or race.

94The Tribunal has stated on several occasions that it does not have a general power to deal with allegations of unfairness. See for example: Badvi v. Voyageur Transportation, 2011 HRTO 1319 at para. 6, and Watt v. Cambridge (City), 2014 HRTO 218 at para. 6. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as race or disability. Unfair treatment is not discriminatory unless there is proof that one or more of these characteristics were a factor in the treatment the applicant experienced. It is readily acknowledged that various experiences of unfairness, not specifically defined as discrimination in the legal sense, can result in significant negative financial and emotional consequences to one degree or another.

95The test the Tribunal applies at this stage is whether the case has no reasonable prospect of success, which involves assuming the applicant’s version of events to be true, absent clear evidence to the contrary.

96Based on the particular facts of this case, I find that the allegations of discrimination based on race, colour, ancestry or ethnic origin or of reprisal or threat of reprisal have no reasonable prospect of success. Reasons are provided below.

The Bramalea Incident

97The applicant’s main contention is that Mr. Cianfrini thought that he referred to a student’s mother as “that white mother” and that Mr. Cianfrini reported this to Ms. Rogers. The applicant believes that this incident labeled him a racist and led to negative consequences that he characterizes as acts of reprisal, as described above.

98I find that the applicant failed to point to any evidence, or any evidence that may be reasonably available to him, that he was treated differently and adversely compared to others, when at Bramalea, and that his race, colour, ancestry or ethnic origin, were factors in the way he was treated. The applicant pointed to no evidence that the respondents found the comments “that white mother” racist or in violation of any other ground under the Code. There are also no allegations that racist comments, or comments based on other grounds under the Code, were ever made to the applicant. In fact, the applicant finished his tenure at Bramalea as anticipated without discipline. Consequently, I find that the allegations related to the applicant’s tenure at Bramalea have no reasonable prospect of success.

Reprisal

99The applicant confirmed at the hearing that he only relies on the ground of reprisal to show that the allegations that occurred after the Bramalea incidents were in violation of the Code. He argues that those allegations were all acts of reprisal after being labeled “racist” by the administration of that school.

100 Section 8 of the Code provides as follows:

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

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

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

102When at Bramalea or the events that followed, the applicant did not attempt to enforce his rights under the Code. The applicant did not file a human rights application. While he did have meetings about his behaviour, he did not assert that his Code-based rights had been violated. In addition, the applicant could point to no evidence that the respondents had the intention of reprising against the applicant. I find that the applicant failed to point to any evidence, or any evidence that may be reasonably available to him, that he was the subject of reprisal or threat of reprisal. The allegations of reprisal have no reasonable prospect of success.

Order

103The Application is dismissed.

Dated at Toronto, this 12th day of October, 2017.

“Signed by”

Josée Bouchard

Vice-chair

CORRECTION

The decision released on October 12, 2017 contained an error in the final sentence of paragraph 12 of the decision. The error has been corrected.

Dated at Toronto, this 18th day of January, 2018.

“Signed by”

Josée Bouchard

Vice-chair