Jerome v. Toronto District School Board, 2017 HRTO 906

Human Rights Tribunal of Ontario

B E T W E E N:

Fletcher Jerome Applicant

-and-

Toronto District School Board Respondent

DECISION

Adjudicator: David Muir Date: July 20, 2017 Citation: 2017 HRTO 906 Indexed as: Jerome v. Toronto District School Board

APPEARANCES

Fletcher Jerome, Applicant Self-represented

Toronto District School Board, Respondent Avneet Grewal, Counsel

1This Application alleges discrimination with respect to employment because of race, ancestry and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2In its Response, the respondent raised preliminary objections to this Application continuing in the Tribunal process.

3Having reviewed the file, the Tribunal decided to schedule a preliminary hearing to determine whether this Application should be dismissed, in whole or in part, on the basis that:

a. It appears that some of the allegations may be untimely; and,

b. There is no reasonable prospect that the Application or part of the Application will succeed.

4The preliminary hearing was held by telephone conference call on June 12, 2016. Both parties participated.

5For the reasons that follow the Application is dismissed because it has no reasonable prospect of success.

6With regard to the delay issue, the applicant clarified at the preliminary hearing that the allegations related to events prior to March 2015 are largely provided as background and are no longer issues for which the respondent can be liable under the Code.

7With the description of background events, many of which were included in a prior Application, in this Application the applicant makes three broad allegations:

a. That because of systemic discrimination the applicant has been unable to secure a permanent full-time position as a teacher;

b. That records of his teaching days in 2013 have been removed and he no longer has access to them;

c. That he was fired on March 18, 2015 for discriminatory reasons or in reprisal for a prior complaint and/or the prior Application.

8The applicant has been employed by the respondent as an occasional teacher since 2007. He was dismissed from his employment in March 2015 in circumstances described below. Dismissal in this context means removal from the occasional teachers list. He was re-hired (returned to the occasional teachers list) by the respondent in October 2015 and remains an employee to date as an occasional teacher. The applicant desires to obtain a full time permanent “contract” position with the respondent but to date has not been able to. The applicant evidently has a sincere belief that he has been treated unfairly by the respondent and he believes that his “Indian” status which he has acknowledged in all of his dealings with the respondent has been a factor in how his career has developed.

9As the Tribunal noted in the Case Assessment Direction which directed that this preliminary issue hearing be held, the Tribunal does not have the power to deal with or remedy general allegations of unfairness. The Tribunal only has the power to deal with discrimination, harassment or reprisal that is prohibited by the Code. Discrimination in the legal sense requires proof that the respondent's adverse treatment of the applicant is based, at least in part, on the applicant’s race, disability or other prohibited ground under the Code. In other words, the prohibited ground must be connected to the adverse treatment.

10Having considered the pleadings of the parties and their submissions at the preliminary hearing I find that this Application has no reasonable prospect of success as it is currently framed because the applicant is unable to point to any evidence which would tend to establish a link between the actions of the respondent and the grounds of discrimination claimed. I also find that that the applicant was unable to point to any evidence that would establish that the actions of the respondent were intended as a reprisal for either of his prior complaint about a principal or the prior Application.

11The applicant was dismissed from his employment as an occasional teacher in March 2015. Although this was the date that the applicant was notified of his dismissal, the dismissal in fact had happened prior to March and the applicant was aware of this fact because he did not re-register prior to June 30, 2014. Pursuant to the collective agreement governing the applicant’s employment in the Spring of each year all occasional teachers are required to register for re-employment for the following academic year. The deadline for re-registering is June 30. An occasional teacher who is removed from the occasional teacher list for other reasons or has failed to register for re-employment may make a request for re-activation by August 4. The applicant was generally aware of this process and acknowledges that he failed to register and also missed the deadline for re-employment or re-activation.

12The applicant asserts that in December 2014 he went to the respondent’s website and was able to make an application for re-activation despite having missed the August 4 deadline. He also asserts that when he heard nothing from the respondent he made contact with the Occassional Teacher’s Office but heard nothing until he received the March 18, 2015 letter advising him that he had been terminated.

13The applicant believes that the respondent seized on his failure to register as a pretext to get rid of him. However there is no evidence that this is the case.

14The applicant relies on the fact that he is a qualified male indigenous teacher who wants to teach kindergarden students. He believes that there is a shortage of people with his skills in the system. He also asserts that there is evidence of a shortage of occasional teachers in the period after he applied for re-activation and that positions for which he is qualified went unfilled. All of these factual assertions may be true but the applicant is unable to point to any evidence that would show he was dismissed due to a Code based ground.

15The respondent did not dispute that the applicant was able to access its website and might have been able to click on a box that would have led him to believe that he had requested re-activation but there is no dispute that the occasional teacher list for the year had been closed. I note that the website has since been changed according to the applicant and occasional teachers are no longer able to do what he did in December 2014.

16I also note that when the applicant spoke to his trade union about the issue he was told that he should apply for re-employment. The applicant did so and was re-employed for the following academic year.

17Aside from this most significant problem with this aspect of the applicant’s case, I also find that there is also no evidence to which the applicant can point that would link the decision to end his employment with either the fact that he is an indigenous person or the fact that he had made a prior complaint about a principal. The applicant acknowledged that the Application was largely concerned with this latter allegation of reprisal. While the applicant sincerely believes this to be the case, he could point to no evidence beyond his belief to support such an inference.

18There is also not evidence to which the applicant could point that this decision was intended as a punishment for a prior complaint by the applicant. See for example Mirea v. Canadian National Exhibition, 2009 HRTO 32; Chan v. Tai Pan Vacations, 2009 HRTO 273, Noble v. York University, 2010 HRTO 878 at para. 31.

19The applicant also stated that he believes that there are systemic barriers to his being able to secure permanent employment with the respondent. However this belief, whether well founded or not, was not at all particularized. The applicant only asserted that barriers exist, despite policy indicating that the respondent would encourage the hiring of teachers from protected groups including indigeneous teachers, because he had not secured a permanent position in ten years. Again although based on an evidently sincere belief, more is required than that in order for a case to go to a full hearing on the merits.

20With regards to the final allegation that the respondents records were altered such that he was unable to see all of the days he had worked in June 2013 the applicant was unable to point to any evidence that this faulty record keeping if it occurred as alleged was connected to any Code ground. The applicant believes that this was done deliberately by Ms. P, the subject of the prior Application, in order to make it more difficult for the applicant to prove his case in the prior Application. The respondent did not dispute the fact that the applicant was unable to see the dates he had worked in June 2013 and offered no explanation for it. However the applicant was unable to point to any facts that would tend to link Ms. P to the change in the respondent’s records. Nor is there any evidence to link the change or ability to access the respondent’s records to a Code ground. It is important to note that this change had no actual impact on the applicant other than possibly making it more difficult for him to determine the date that an event occurred.

21For all of these reasons I find that this Application must be dismissed because there is no reasonable prospect that it can succeed.