0708-99-U David B. Grainger, Applicant v. Douglas Fox a.k.a. Doug Fox, Victoria Olson a.k.a. Vicky Olson, The Greater Essex County District School Board, Responding Parties.

3628-98-U David B. Grainger, Applicant v. Elliot Dunlop, The Greater Essex County District School Board, Responding Parties.

4112-98-U David B. Grainger, Applicant v. Val Pistor, The Greater Essex County District School Board, Responding Parties.

BEFORE: Anthony Brown, Vice-Chair.

APPEARANCES: Dave Grainger on his own behalf; L. P. Kavanaugh and Jack Sullens for the responding parties.

DECISION OF THE BOARD; October 4, 2000

1These are three applications pursuant to section 96 of the Labour Relations Act, 1995 (the "Act") alleging violation of subsection 87(1).

2At the conclusion of the first day scheduled for hearing, September 27, 2000, the Board made a brief oral ruling dismissing the applications. These are the reasons for its ruling.

3At the outset of the hearing the responding party objected to the applicant’s intention to tape record the proceedings. The applicant indicated that as he was representing himself without assistance, he needed a tape recorder to assist him in taking notes. The Board ruled that the applicant should be permitted to tape record the proceedings provided that this was done unobtrusively and that the applicant understood that the tape recording would not constitute an official transcript and could not be used as such in this or any other proceeding. The applicant assured the Board and the responding party that the tape recording was intended only to assist him to make notes and he did not intend to use it in any other proceeding.

4The applications originally claimed violation of subsection 87(2) which pertains to union conduct. The Board permitted the applicant to amend his applications to allege violation of subsection 87(1) rather than 87(2), as the nature of these complaints is clear from the body of the applications.

5During the course of the hearing, the Board also reminded the applicant that, although he had a right to be unrepresented, he should be aware that the Board could not advise him with respect to his application but could provide information about the Board’s procedures. The Board also explained that when a matter is scheduled for a “hearing” in the normal course, the hearing includes preliminary matters raised by either party. The responding party had given notice of its intention to make preliminary motions.

The Legislation

6Subsection 87(1) of the Act states:

87. (1) No employer, employers' organization or person acting on behalf of an employer or employers' organization shall,

(a) refuse to employ or continue to employ a person;

(b) threaten dismissal or otherwise threaten a person;

(c) discriminate against a person in regard to employment or a term or condition of employment; or

(d) intimidate or coerce or impose a pecuniary or other penalty on a person,

because of a belief that the person may testify in a proceeding under this Act or because the person has made or is about to make a disclosure that may be required in a proceeding under this Act or because the person has made an application or filed a complaint under this Act or has participated in or is about to participate in a proceeding under this Act.

Facts

7The material facts and allegations can be summarized briefly. The responding party is a public district school board, formed as a result of the1998 merger of the Board of Education for the City of Windsor and the Essex County Board of Education. The applicant was employed as a teacher by the Essex Board. He was dismissed effective December 31, 1993. In June, 1995, a board of arbitration issued a majority decision upholding the dismissal after nine days of hearings. In June, 1996, the applicant applied for judicial review and, on October 13, 1998, a panel of Divisional Court remitted the matter to a new arbitration board, differently constituted. The responding party was refused leave to appeal in May, 1999. The Board is advised that the new arbitration board has now commenced hearing the matter.

8The responding party has prohibited or “banned” the applicant from access to its property. The applicant is heavily involved in coaching the “Jumping Jacks” precision skipping team, an organization that uses school facilities by permit after-hours. Briefly put, the applicant claims that the ban imposed by the responding party is, in effect, in retaliation for his having commenced proceedings under the Act, contrary to subsection 87(1). The responding party asserts that the ban was imposed because of the alleged conduct of the applicant in respect of female students that gave rise to his dismissal from employment.

9The application in Board File No. 3628-98-U was filed on January 28, 1999. The focus of this application is the alleged interference by the responding party in the relationship between the applicant and the coterminous Windsor-Essex Catholic District School Board. The applicant alleges that, following his filing of a section 74 complaint against the applicant’s union in Board File 3209-98-U, Elliot Dunlop, an employee of the responding party, informed an employee of the Windsor-Essex Catholic District School Board that the applicant was not allowed in the public schools. The applicant alleges that this communication resulted in the Catholic school board prohibiting him from access to its property and cancelling the applicant’s skipping programs in its schools. The applicant further states that at the time this communication was made by Mr. Dunlop, the applicant was attending several schools of the responding party without any problems. The applicant asserts that Mr. Dunlop is “employed in administration and as such would have knowledge of the OLRB complaint.”

10The responding party asserts that Mr. Dunlop was the school board’s representative on a sub-committee comprised of local health, school and community representatives and thereby learned of the applicant’s interest in using the elementary schools to conduct skipping workshops. It asserts that Mr. Dunlop then became aware from school principals of the responding party that the applicant was not permitted on board property. The responding party denies that Mr. Dunlop was aware of the section 74 complaint, but agrees that Mr. Dunlop, upon becoming aware of the “ban” against the applicant, informed a representative of the Catholic school board in January, 1999, that the public board had prohibited the applicant from coming onto its property.

11The relief sought by the applicant in Board File No. 3628-98-U is compensation for loss of income, a letter of apology from the responding party, and an order “directing the responding party to instruct its employees not to interfere, either directly or indirectly, with any lawful activities of David B. Grainger.” The applicant explained to the Board that he wants the public board to be directed to tell the Catholic board that it should let the applicant back onto its property.

12The complaint in Board File No. 4112-98-U was filed on March 4, 1999. It pertains to a letter sent by the responding party’s Director of Education, Val Pistor, to the applicant on February 23, 1999 stating that the applicant is not allowed “on any property or schools of the Greater Essex County District School Board”. The parties agree that the applicant also received a letter dated April 11, 1997 from the Director of the predecessor Essex school board notifying him that he was not permitted “to enter our school buildings or property, specifically Kingsville District High School, on April 12, 1997.” The applicant’s position is that the April 11,1997 letter was not a ban against coming onto all school board property and he states that he continued to access school board property as a coach, on rope skipping business and to provide workshops. He notes that he was charged with trespassing at Kingsville High School on April 12, 1997. It appears that the trespassing charge was withdrawn by the Crown without a trial. In addition, the (then) Director of the Essex school board wrote to the applicant on January 23, 1996 directing that “you are not permitted to enter our school buildings or property except as specifically and directly associated with the attendance of your children at our schools.”

13The applicant asserts that the only reason for Mr. Pistor’s letter of February 23, 1999 “was to intimidate him and cause him financial hardship because he had filed a complaint with the OLRB.” He states in his pleadings: “The applicant firmly believes that Val Pistor and [the respondent] realize that if the OLRB directs the Elementary Teachers’ Federation of Ontario to fund his litigation, he will be back to work”.

14The responding party asserts that Mr. Pistor’s letter to the applicant was to remind him that he was not permitted on school board property because he was continuing to attend on the board’s premises despite the previous notices.

15The remedies sought in Board File No. 4112-98-U are an order restraining the responding party and its employees “from interfering, either directly or indirectly, with any lawful activities of David B. Grainger.” The applicant also seeks an order restraining the responding party and its employees “from molesting, annoying or harassing the applicant, either directly or indirectly.” He also seeks compensation for loss of income.

16The application in Board File No. 0708-99-U was filed on June 7, 1999. The applicant asserts that Victoria Olson, the principal of Jack Miner School, sent a representative of the “Jumping Jacks” a threatening letter advising that the permit to use Jack Miner School would be terminated if they did not stop the applicant from coaching their team at the school. Ms. Olson’s letter was not formally appealed to the school board by the applicant (as permitted by section 265 of the Education Act) but a “Jumping Jacks” delegation did apparently ask the school board to rescind Ms. Olson’s letter, which the school board declined to do. The applicant states that he “does feel that it is more than coincidental that the Principal would send a threatening letter on instructions from a superintendent [Doug Fox] almost a week after the School Board has found out that they may have to reinstate the Applicant if they fail at the new Board of Arbitration.” The responding party asserts that Ms. Olson’s letter to the Jumping Jacks merely reminded them of their existing understanding that they could use the school on condition that the applicant was not permitted on the premises.

17In Board File No. 0708-99-U, the applicant seeks “an order directing the [responding party] to pay any cost and/or loss of the Jumping Jacks Precision Skipping Team that they may incur as a result of the actions of [the responding party] or its employees.” He also seeks an order directing the school board to send him a letter of apology for interfering with his relationship with the Jumping Jacks.

Preliminary Motions

18The responding party made preliminary motions for dismissal without a hearing on the merits, in accordance with notice given in its pleadings.

19First, the responding party submits that subsection 87(1) of the Act does not apply because at all material times there was no employment relationship between the applicant and the responding party. It asserts that the facts do not come within any of clauses (a) to (d) of the subsection. It notes further that the applications provide no details about the claim for loss of income. The applicant submits that the Board does have jurisdiction and he maintains that he is an “employee” for the purpose of bringing these applications.

20The responding party’s second submission is that the Board does not have the jurisdiction to order the responding party to admit the applicant to its property because matters concerning the safety of students are within the jurisdiction of the school board.

21The responding party argues, in the alternative, the Board should exercise its discretion not to make the orders requested by the applicant. It submits that a decision by a principal to bar someone from a school can be appealed pursuant to section 265 of the Education Act, and that this is an alternate forum for consideration of these matters.

22The applicant did not respond directly to the responding party’s assertion that there is an alternate forum. He notes that the school board did not respond favourably to the delegation that asked the school board to rescind the above-mentioned letter from Victoria Olson. He explained that the school board’s actions were in retaliation for his having filed a section 74 complaint under the Act. He explained that his arbitration hearing is on-going. He submits that the actions of the responding party prevent him from earning an income.

Decision

23For reasons which follow, the Board decided to exercise its discretion not to inquire further into these applications. It is therefore not necessary to determine whether subsection 87(1) only applies if there is an employment relationship between the parties, or whether the Board has the power to grant the applicant’s requested remedies. The Board will assume without deciding that it has jurisdiction and could make an order of the nature requested by the applicant in appropriate circumstances, if a violation were proved.

24The factors taken into account by the Board in the exercise of its discretion under section 96 will depend on each particular case.

25In these applications, one consideration is that the parties are currently engaged in an arbitration proceeding that will determine the outcome of the applicant’s dismissal grievance. If the applicant is successful at arbitration, the arbitration board will fashion an appropriate remedy, which could include reinstatement to employment. Reinstatement would logically result in a lifting of the ban on after-school access, as well. Therefore, the outcome of the arbitration may ultimately provide the applicant with a remedy similar to the central one sought before the Board, namely access to the schools. Although the issues raised under subsection 87(1) are obviously different from those raised in the grievance, and the outcome of the second arbitration would have no direct bearing on the outcome of these applications, the Board is entitled to take into account that there is another forum currently being used by the parties which may in some way resolve the issues fundamental to the instant applications.

26Another factor considered by the Board is the applicant’s likelihood of success in these applications. The applicant asserts that until February, 1999, it was not clear that he was under a complete ban from all properties of the new District School Board. He continued to attend the schools for the purposes of Jumping Jacks and related activities. However, even if the Board were to agree that the “ban” was limited, vague or inconsistently enforced, it is clear from the letters of January, 1996 and April, 1997 that the responding party’s predecessor board had imposed some restrictions on the applicant’s access to its schools prior to the section 74 complaint. On its face, the letter to the applicant from Val Pistor in February, 1999 clarified that the ban extended to all the schools of the newly constituted school board. The pattern of restricting (if not completely prohibiting) the applicant’s access had been established long before the applicant filed a complaint against his union or won a court decision remitting his grievance to a new arbitration board. This militates against drawing the inferences advocated by the applicant. The school board states that the ban was motivated from the outset by a concern for the safety of young persons on school premises. Even if the Board agreed that the ban was unfair or ill-founded, the ban would only be relevant to subsection 87(1) if it were connected to the applicant’s complaint under section 74 or some other proceeding under the Act. There are no material facts pleaded that, even if assumed to be true, would sufficiently connect the dots between the ban and a complaint or other proceeding under the Act. In respect of the communication between Mr. Dunlop and the Catholic school board, it is very doubtful that the responding party or Mr. Dunlop were motivated to communicate with the Catholic school board because the applicant had filed a section 74 complaint against his union or was involved in any other proceeding under the Act. Mr. Dunlop was on a sub-committee looking at how public and separate schools could be used in respect of a Ministry of Health initiative. Because of the ban, Mr. Dunlop’s school board would not have considered any proposal made by the applicant to run skipping workshops in the public schools, and it was to be expected that he would convey this information to his contact with the Catholic board. (The applicant raised the issue of whether the reverse onus in subsection 96(5) applies. In my view it does not because the allegations against the responding party are not in respect of “employment, opportunity for employment or conditions of employment” as required by that subsection. The issue is the applicant’s access to schools, not his employment with the responding party.)

27In my view, these applications have little chance of success on the merits even assuming the truth of the applicant’s material factual assertions.

28The third and, in my view, most important factor is the nature of the remedy being sought in each application, as outlined above. The foremost remedy requested is that the applicant be allowed to operate Jumping Jacks and related activities on school board property. Should the Board be inclined to make this order even if the applicant could prove a violation of subsection 87(1)?

29It is a statutory and common law duty of a school board to ensure the safety of its pupils. The Board has no mandate to assess the risk, if any, of permitting the applicant to be on school property. Therefore, even if a violation of subsection 87(1) were proved, it is unlikely that I would make the requested orders, assuming that I have jurisdiction to do so.

30It is also unclear to me what labour relations purpose would be served by ordering the school board to permit the applicant onto its property in order to conduct a private enterprise, keeping in mind also that Jumping Jacks can operate at locations other than publicly-funded schools.

31The Board also considers that there may be other, more appropriate legal avenues open to the applicant to contest the Board’s ban which have not been exhausted. For instance, the applicant has apparently not formally requested a hearing by the school board to reconsider the letter of February 23, 1999 written by its Director of Education, nor has he sought judicial review.

32For the foregoing reasons, the Board made an oral ruling on September 27, 2000 dismissing the applications.

“Anthony Brown”

for the Board