Moodie v. Peel District School Board, 2017 HRTO 1705

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anthony Robert Moodie Applicant

-and-

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

RECONSIDERATION DECISION

Adjudicator: Josée Bouchard Date: December 27, 2017 Citation: 2017 HRTO 1705 Indexed as: Moodie v. Peel District School Board

WRITTEN SUBMISSIONS

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

1On October 12, 2017, the Tribunal issued its Decision in this Application, 2017 HRTO 1349, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.

BACKGROUND

2The Tribunal’s Decision found as follows:

a. The applicant’s main contention was that, while employed at Bramalea Secondary School (“Bramalea”), a colleague thought that the applicant had referred to a student’s mother as “that white mother” and he reported this to the Vice-Principal. The applicant believed that this incident labeled him a racist and led to negative consequences that he characterized as acts of reprisal. 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 were 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, the allegations related to the applicant’s tenure at Bramalea had no reasonable prospect of success.

b. The applicant confirmed at the hearing that he only relied on the ground of reprisal to show that the allegations that occurred after the Bramalea incidents were in violation of the Code. He argued that those allegations were all acts of reprisal after being labeled “racist” by the administration of that school. When 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. In addition, the applicant could point to no evidence that the respondents had the intention of reprising against the applicant. The allegations of reprisal had no reasonable prospect of success.

THE REQUEST FOR RECONSIDERATION

3The Request for Reconsideration provides the following reasons why the Tribunal should reconsider its Decision:

a. The decision was made based upon incorrect information, which was never submitted or agreed to by the applicant in the summary hearing. More specifically, the Vice-chair noted that the applicant no longer wished to pursue the discrimination allegations based on family status or age. The applicant maintains that his allegations are centered on the interaction he had regarding the discriminatory treatment of his son at Bramalea Secondary School when he was in grade 9, which triggers the ground of family status. In addition, the applicant argues that it is a known fact from observation that the Peel District School Board (“the Board”) discriminates against employees in hiring permanent employees based on their age.

b. There was no promise of recommendation from the principal, Ms. Chew, to the applicant, no recommendation was requested and no refusal was made by Ms. Chew. It was Ms. Chew’s responsibility to provide an appraisal based on the teacher’s performance and competency.

c. The applicant did not state that his failure to file an Application was because he thought the union would file a grievance.

d. The applicant did not contact the police following the incidents of April 2017 while employed at Meadowvale High School.

e. The Vice-chair acted beyond the scope of the summary hearing by failing to acknowledge the evidence provided to support reprisal and racism based on colour, ethnicity, family and age.

f. The Vice-chair acted beyond the scope of the summary hearing by limiting the scope of the incident at Bramalea to the respondents’ position.

4In their Response to the Request for Reconsideration, the respondents note that the applicant’s request for reconsideration should be dismissed, as it simply constitutes an attempt to obtain a different result. More specifically, the respondents argue as follows:

a. The Vice-chair provided the applicant with a fulsome opportunity to make submissions, and gave fair consideration to the submissions made by the applicant. Ultimately, however, the Vice-chair agreed with the respondents that the Application had no reasonable prospect of success.

b. The Application was properly dismissed as having no reasonable prospect of success as the applicant failed to point to any evidence that he was discriminated or reprised against by the respondents. The applicant was given multiple opportunities to point to such evidence in the course of the hearing, but was unable to do so.

c. The applicant alleges that it was incorrect for the Vice-chair to infer that he was no longer alleging discrimination on the basis of family status or age. This is a disingenuous statement. At the summary hearing, the applicant was asked multiple times on which grounds his allegations were based. He was provided with multiple opportunities to clarify the grounds. He agreed as follows at the hearing:

o His allegations of discrimination started in 2014 with the Bramalea allegations, and anything before that point was only to provide context.

o He alleged he was discriminated against at Bramalea on the basis of a statement he had made in respect of a parent. As this statement was allegedly perceived as being racist, he was consequently allegedly labelled a racist.

o He thought the Bramalea incident was “racially based”.

o The rest of the allegations other than the incident at Bramalea were reprisals.

o When asked whether he was alleging discrimination on the basis of family status, the applicant indicated he had no intention of wasting the Tribunal’s time on that.

d. Similarly, the applicant states that “there was no promise of recommendation from Ms. Chew to the applicant”. While it is not clear that such promise was made or whether the applicant believed such a promise was made, the applicant did allege numerous times at the hearing that not receiving a recommendation from Ms. Chew allegedly impacted him, and constituted an alleged reprisal by Ms. Chew. As such, the Tribunal properly considered whether the applicant was able to point to evidence that the respondents (which include Ms. Chew) had the intention of reprising against him. As the applicant was unable to point to any such evidence other than his own belief that he had been reprised against, his allegations of reprisal were properly dismissed.

e. The applicant denies stating that he thought the union would file a grievance. In fact, at the hearing the Applicant took the position that the union “did not have carriage, but they could deal with the matter”. In any event, it is an undisputed fact that the applicant did not file a human rights application and did not assert that his Code-based rights had been violated, at least not until this Application was filed.

f. The applicant denied stating that he had reported the April 2017 matter to Peel Regional Police. While this appears to be an accurate statement, at the hearing the applicant did state that he had reported an incident, following which the Board called the police. In any event, this finding of fact does not trigger reconsideration, as it is neither in conflict with Tribunal jurisprudence nor does it involve a matter of public importance.

g. The applicant also alleges that the Vice-chair failed to consider "additional information", more specifically information filed on May 25, 2017. The adjudicator heard submissions from all parties on these documents and whether they should form part of the summary hearing, and implicitly held that these documents and allegations should not in fact form part of the hearing as there is no evidence that this information is connected to the allegations in the Application.

THE LAW

5Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.

45.7(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

6The Tribunal has issued Rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, effective as of January 2014). Most relevant to this Decision is Rule 26 which states:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision

26.5 A Request for Reconsideration will not be granted unless the Tribunal is satisfied that

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

7The Tribunal’s Practice Direction on Reconsideration includes the following statement:

Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Reconsideration is not an appeal or an opportunity for a party to change the way it presented its case.

8As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

ANALYSIS AND CONCLUSIONS

9I find that the applicant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

10As indicated above, the applicant relies on Rule 26.5(c) of the Rules of Procedure.

11In support of his Request, the applicant largely repeats arguments made orally before the Tribunal. A request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered.

12The applicant has not identified any new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier.

13The applicant alleges that the decision was based on inaccurate information. He maintains that he never relinquished his claims of discrimination based on family status or age. However, the applicant was provided with multiple opportunities to provide particulars of these allegations and to point to evidence that the allegations do not have “no reasonable prospect of success”. The applicant failed to do so. It is clear that the Request for Reconsideration is an attempt to repair deficiencies in his case, which, as the Practice Direction on Reconsideration points out, is not a proper basis for reconsideration. See Thambipillai v. Toronto District School Board, 2012 HRTO 1184 at para. 7.

14In his Request for Reconsideration, the applicant submits that the Decision is based on factual errors, namely that Ms. Chew did not promise a recommendation, that he thought the union would file a grievance, and that he did not call the police following the April 2017 incidents while employed at Meadowvale High School. The respondents agree that the applicant did not call the police following the April 2017 incidents, but it is unclear whether the applicant made the other two statements.

15Allegations that an applicant was attributed statements he or she allegedly never made are not a ground for reconsideration. The applicant must establish that the decision is in conflict with established case law, or that the proposed reconsideration involves a matter of general importance. Disagreeing with the Vice-chair’s view and assessment of the proposed evidence, such as in this case, does not satisfy the criteria for reconsideration. In addition, none of the alleged errors, if corrected, would alter the finding that the Application “has no reasonable prospect of success”. Farahani v. Toronto (City), 2012 HRTO 1295 at paras. 11 to 14.

16I am not convinced that any findings made in the Decision are in conflict with established jurisprudence.

The May 25, 2017 Allegations – Meadowvale High School

17On May 25, 2017, the applicant filed submissions that included new allegations of incidents that occurred in April 2017. The respondents opposed the introduction of the new allegations and maintained that they would be significantly prejudiced by the addition of the allegations. The respondents argued that the new allegations were different in nature than the allegations in the Application and should not be considered in the context of the Application.

18This matter was not addressed in the Decision and, although not a reason for reconsideration, I take this opportunity to remedy this failure. At the summary hearing, I heard detailed submissions from the parties about whether the new allegations should be considered by the Tribunal.

19The allegations made in May 2017 were different in nature than the allegations raised in the Application and would have broadened the scope of the hearing considerably. The Application referred to the applicant’s tenure as a Long-Term Occasional teacher and all the allegations referred to the applicant specifically. The allegations raised in May 2017 related to inappropriate information posted on a Google class account that teachers and students at Meadowvale had access to. The author and aim of the inappropriate postings were unknown.

20The applicant did not raise the allegations until very late in the process, in May 2017, and he did not file a Request to Amend the Application. As a result, the allegations filed in May 2017 did not form part of the Application. However, as a consequence, this does not preclude the applicant from raising these allegations in the future.

21The Request for Reconsideration is denied.

Dated at Toronto, this 27th day of December, 2017.

“Signed by”

Josée Bouchard Vice-chair

Addendum

22In his submissions, the applicant noted that paragraph 12 of the Decision states “The applicant self-identifies as bi-racial”. He submits that this should be amended. In his Application, the applicant describes himself as “of a biracial union. My father is a Jamaican of African origin and my mother is a Mulatto”.

23As I omitted to address this in the Reconsideration Decision, through this Addendum the last phrase of paragraph 12 of the Decision is corrected to read “In his Application, the applicant identifies himself as a person from a bi-racial union” instead of “The applicant self-identies as bi-racial”.

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

“Signed by”

Josée Bouchard Vice-chair