HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wilfredo Querobin

Applicant

-and-

Toronto District School Board and Hanse Patel

Respondents

-and-

District 12 OTBU

Affected Party

INTERIM DECISION

Adjudicator: David Muir

Date: December 14, 2017

Citation: 2017 HRTO 1657

Indexed as: Querobin v. Toronto District School Board

1This is an Application filed June 8, 2017, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment. This Interim Decision responds to various issues raised by the parties.

The Dispute

2The Application (Form 1) includes very few facts which would tend to support the applicant’s claim that a factor in the decision to remove him from a job assignment was discrimination. In the applicant’s Reply however, he does assert some facts which, if proved, may support the claim. The applicant asserts that he is qualified to teach the course and has had considerable experience in doing so:

Few students knew how to access the program. That day, one of the materials was computer. They used computers to work on their resume and application letter which I have many years teaching experience and successfully taught in other schools. For those who could not access the program, they had nothing to do but played computer games. In Grade L0 Civics, not all the time that students would use computers. (emphasis added)

3The applicant also asserts that when the proposed personal respondent returned to his classroom in the afternoon of March 31, 2017, the proposed respondent:

did not respect me as a teacher. She did not even ask permission or say hello to me, She just went directly to the computer and talked to the students.

4The respondent responds to these allegations by asserting that it became clear that the applicant was unable to teach the material to its satisfaction.

The Requests

5The Toronto District School Board (“TDSB”) filed a Response to the Application together with a Request for Order and a Request for Summary Hearing (“Requests”).

6The applicant has filed a Reply to the Response as well as two Requests of his own. In a Request filed on October 26, 2017, the applicant sought the removal of the TDSB as a respondent. On November 24, 2017, the applicant filed a Request to add a second individual respondent.

7The applicant filed a further Request on December 1, 2017, to declare the identified respondents in default because of an alleged failure to file a Response to the Application. By correspondence dated December 11, 2017, the respondents were directed that they need not respond to this Request.

8The parties’ Requests raise two issues:

• Who are the proper responding parties to this Application.

• Whether or not this Application should be dismissed because all or part of it has no reasonable prospect of success.

The Proper Parties to the Application

9In his Application the applicant asserts that an occasional teaching assignment was taken from him because of his ethnic origin, place of origin and race. The applicant identified as the proper respondents to the Application Danforth Collegiate and Technical Institute (the “school”) and Hansa Patel, an employee of the school..

10In its Response, the TDSB indicated that it and not the school was the proper organizational respondent because the school has no separate legal identity and cannot be a respondent. The applicant takes issue with this claim.

11The respondents seek the removal of the individual respondent initially identified by the applicant and opposes the applicant’s Request to add a second individual respondent.

12The applicant opposes the removal of the individual respondent; seeks the addition of a second individual respondent; and opposes the TDSB position that it, and not the school, is the proper organizational respondent.

13The Request of the respondent to remove the school and substituting the Toronto District School Board is granted. Similarly, the Request to remove Hansa Patel is granted.

14As regards the identity of the proper organizational respondent, this is a straightforward issue. Contrary to the assertions of the applicant, the school is not a legal entity separate from the TDSB and cannot be a respondent in an Application. The applicant argues that the TDSB is his employer and that it should not be identified as a respondent. The applicant’s claim is discrimination in employment. The school is not the applicant’s employer, the TDSB is. It seems to me clear that the TDSB is the proper organizational respondent. The style of cause is amended accordingly.

15It follows that the December 1, 2017 Request must be denied. The request assumed that the school was the proper organizational respondent and therefore the Response filed by the TDSB and not the school was defective. The Request has no merit and is dismissed.

The Personal Respondents

16The TDSB seeks the removal of Hansa Patel as a respondent. The applicant opposes this Request and seeks an Order adding an additional individual respondent.

17Both Requests involve a consideration of similar issues.

18The Tribunal has held in Smyth v. Toronto Police Services, 2009 HRTO 1513, that when determining a request to add a respondent, the Tribunal should consider the following three questions:

(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?

(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

(3) Would it be fair, in all the circumstances, to add the proposed respondent?

19The application of the first stage involves considering whether there are allegations made in the Application that could lead to a finding that the proposed respondent violated the Code. At the second stage, the Tribunal applies the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5 (“Persaud”), which focus principally on whether there is an organization that is part of the proceeding, which is able to take responsibility for the conduct, and whether the conduct of the individual respondent is a central issue in the proceedings. The factors from Persaud are applicable to both requests to add individual respondents and requests to remove them. At the third stage, the Tribunal may consider a variety of factors, including the effects on the hearing process of adding the proposed respondent, the reasons the proposed respondent was not named in the Application or Response, and prejudice to the other parties.

20In my view it is appropriate to remove Hansa Patel as a personal respondent and to deny the applicant’s request to add another individual.

21As regards the individual respondent initially identified by the applicant, there were no apparent allegations about this individual’s conduct in the Application. However, in his Reply to the Response in which the respondent asserted that this individual had nothing to do with the decision but merely communicated the decision of the proposed respondent to the applicant, the applicant asserted without any particulars that the two “connived” together. In my view there are no allegations of discrimination by this individual beyond the bald assertion with no factual support of connivance. As such there is no compelling reason – indeed no reason at all – to include this individual as a respondent. I would also observe that it is clear that this individual would have been acting in the course of her employment and that that the TDSB is able and legally required to accept liability in these circumstances. Accordingly the Request of the respondent is granted, Hansa Patel is removed from the Application and the style of cause amended accordingly.

22Having regard to the factors set out in Persaud, the request of the applicant to add the proposed respondent is denied. The respondent asserts that this individual made the decision she did in the course of exercising her responsibilities as a curriculum leader. The applicant does not assert otherwise. Accordingly it appears that this individual was acting in the course or her employment. It is also clear that the TDSB can is able to and is legally obligated to take responsibility for the decisions made by this individual and any remedy that might be granted in the event that a Code violation is found would be provided by the TDSB. As such there is no compelling reason to include this person as a party to this Application. The applicant’s Request is denied.

The Request for Summary Hearing

23This Request is denied. The Tribunal’s Rules provide that where such a Request is denied it need not give reasons for doing so. I do not intend to provide detailed reasons but the following comments are appropriate.

24There is no direct evidence of discrimination alleged. Moreover, as indicated above, there are very few facts pled in the Application from which an inference might be drawn that a factor in the decisions of the respondent were the personal characteristics of the applicant. However, in the Reply, the applicant does make allegations which at this stage preclude the conclusion that there is no reasonable prospect of the Application succeeding. That of course does not mean that there is a reasonable prospect of success, but there may be enough in the pleadings which if proven might require the respondent to lead some of its evidence about the conclusions concerning the applicant’s ability to teach the material he was required to. The Tribunal does not substitute its judgement on these matters and it does not matter whether the applicant, or the Tribunal, agrees with the respondent’s decision. Rather the issue may be whether or not an inference might be drawn in all of the circumstances including the applicant’s allegations that he was competent and had considerable experience teaching the material, that a factor in the decision was one or more the grounds cited in the Application.

25In this case I have concluded that it may not be possible to determine whether there is no reasonable prospect that the Application can succeed without hearing some evidence, and accordingly in the summary hearing process, where no evidence is tendered, these issues sometimes cannot be resolved. However, as the Tribunal discussed in Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777, this does not necessarily mean that the next step is a full hearing. The Code and the Tribunal’s Rules of Procedure give the Tribunal broad powers to structure hearings to ensure fair, just and expeditious adjudication of Applications.

26This case will be scheduled for a one-day hearing. After hearing the applicant’s evidence it may be necessary to revisit the issues raised in the respondent’s Request.

Orders

27The Tribunal makes the following Orders:

• The applicant’s Requests are denied.

• The respondent’s Request that the TDSB be identified as the respondent and its Request to remove a personal respondent are granted and the style of cause amended accordingly.

• The respondent’s Request for Summary Hearing is denied.

• The case will proceed to a one-day hearing.

28I am not seized.

Dated at Toronto, this 14th day of December, 2017.

“Signed by”

David Muir

Vice-chair

CORRECTION

The decision released on December 14, 2017 misidentified the personal respondent, Hansa Patel, an employee of the school, as “the principal” in paragraphs 9, 16, 20 and 21 of the decision. The error is corrected.