3908-99-U David B. Grainger, Applicant v. Windsor-Essex Catholic District School Board, Responding Party v. The Greater Essex County District School Board, Intervenor.

BEFORE: Brian McLean, Vice-Chair.

APPEARANCES: Dave Grainger appeared on his own behalf; Paul L. Mullins appeared on behalf of the responding party; No one appeared on behalf of the intervenor.

DECISION OF THE BOARD; August 15, 2001

1. This is an application under section 96 of the Labour Relations Act (the “Act”) which alleges a violation of section 87(1) of the Act.

2. Section 87(1) states as follows:

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.

3. The applicant’s assertion in this application is that the Windsor-Essex Catholic District School Board (the Catholic Board) imposed a pecuniary or other penalty on the applicant because he filed an application under section 96 of the Act against the Windsor-Essex Public School Board (the “public Board”).

4. The background facts to this application are not in dispute and have been set out in several Board decisions. The Board’s decision dated October 4, 2000 in Board Files 0708-99-U, 3628-98-U, and 4112-98-U recites these facts as follows:

7. The material facts and allegations can be summarized briefly. The responding party is a public district school board, formed as a result of the 1998 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.

8. The 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.

5. The applicant was employed by the Greater Essex County District School Board (“the Public Board”) which is the responding party in Board Files 0708-99-U, 3628-98-U and 4112 98 U. This application is against the Catholic School Board in the same area, the responding party Windsor-Essex Catholic District School Board (“the Catholic Board”) which also banned the applicant from the schools in its jurisdiction.

6. The applicant’s assertion in this application is that the Catholic Board, which has a close relationship with the Public Board, banned him from Catholic School Board property in retaliation for his having filed a complaint against the Public Board. The Catholic Board’s defence is that the applicant was banned, not for the complaint, but because it learned of his alleged inappropriate conduct and acted in accordance with the Education Act to protect the health and safety of students.

7. The applicant was the only witness to testify. There was no real dispute about his evidence.

8. The applicant had a multi-faceted relationship with the Catholic Board. The applicant was a member of the Heart Health School Committee which was made up of representatives from, among others, the Windsor-Essex Health Unit, the Catholic Board, and schools in the Board. The purpose of the committee appears to have been to design programs to improve the physical health of school children in Windsor-Essex. The applicant was a member of the committee because of his skipping background. Despite apparently being aware of the allegations which have been made against the applicant the Catholic Board representatives on the committee did not object to his presence. Indeed, they encouraged him to attend at schools to promote the skipping programs developed by the committee and to give exhibitions and workshops to students.

9. The applicant also had financial incentive for his participation on the committee. The applicant owned a company, Jump Aerobics Inc. which provided instructors (including the applicant) to schools for skipping workshops and exhibitions. In addition, the applicant owned another company, the Rope Shop, which sold high quality jump ropes to schools. At the time of the events giving rise to this application the amounts of money involved were not high. Jump Aerobics Inc. was paid $100 for the provision of an instructor on a few occasions. In addition the Heart Health School Committee bought approximately $5000 worth of jump ropes for distribution to schools from the Rope Shop. The funds for these projects were provided by the Ministry of Health through the Health Unit.

10. The applicant has never been an employee of the Catholic Board. To the extent any school engaged his services (or more correctly the services of Jump Aerobics Inc.) they were reimbursed by the Health Heart committee.

11. The applicant also gave evidence about the nature of the relationship between the Catholic Board and the Public Board. He characterized it as a close relationship. The Catholic Board acknowledges that it has an ongoing relationship with the Public Board. The two Boards co operate financially in some areas in order to share costs.

12. The applicant also testified about the events which led to this application. Prior to January or February, 1999 the applicant’s relationship with the Catholic Board was excellent. However, in late 1998 or early 1999 he filed an application under section 96 of the Act against the Public Board. Shortly after doing so he began to hear that there may be “problems” with his appearing on Catholic Board property. Soon he was advised by school principals that the Board had advised them not to permit him on school property. His lawyer sent a letter to the Board. Counsel for the Catholic Board replied that as a result of the fact that the applicant’s legal process with the Public Board was ongoing, the applicant was not permitted on Catholic Board facilities. The applicant attempted to appeal the Catholic Board’s ruling but they did not hold a hearing.

13. Finally, the applicant testified that he believes that he is wrongly accused and that as a result the Catholic Board is treating him badly. He has been to court three times on these kinds of charges, including the ones at issue in his arbitration, and on each occasion they have been dismissed. Twice judges have found his accusers to have been collaborators and dishonest. He remains a teacher in good standing and has been in the presence of children on many occasions without incident.

Decision

14. The first issue to be determined is the location of the onus in this case. The applicant asserts that it lies with the Catholic Board. He relies on section 96(5) of the Act. That section states:

96. (5) On an inquiry by the Board into a complaint under subsection (4) that a person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to this Act as to the person's employment, opportunity for employment or conditions of employment, the burden of proof that any employer or employers' organization did not act contrary to this Act lies upon the employer or employers' organization.

15. The Catholic Board argues that section 96(5) does not pertain because the applicant is not and was not an employee of the Catholic Board.

16. I agree with the position advanced by the Catholic Board. Section 96(5) shifts the onus to the “employer” in cases which involve allegations of penalties as to “employment, opportunity for employment or conditions of employment”. Even if “employment” could be interpreted to include more than just traditional employment relationships it could not be extended to include what was in the essence commercial relationship that existed between the applicant and the Catholic Board. It is even more accurate to say that the economic relationship was between the applicant’s companies and the Health Heart Committee with the Catholic Board as the beneficiary of that relationship. In my view section 96(5) of the Act does not apply to persons who are engaged in a commercial relationship with the employer or, in this case, a person alleged to be acting on behalf of an employer. I find, therefore that the applicant bears the onus in this case.

17. In order to prove his case the applicant must lead evidence that all or part of the reason why the Catholic Board barred the applicant from its facilities was because the applicant filed the complaint against the public Board. The only evidence that the applicant led relates to the relationship between the two Boards and the timing of the Catholic Board’s decision to bar him. While I am satisfied that the two Boards had a close relationship that is not evidence of the Catholic Board’s intentions. Similarly, while the timing of the Catholic Board’s decision may be suspect, it is equally consistent with the Catholic Board decision makers learning of the allegations because of the applicant’s application. It also may be just coincidence. Quite simply, the applicant adduces no direct evidence of the Catholic Board’s intent to punish the applicant for his having filed an application against the Public Board. There is no basis for the Board to find a breach of section 87 of the Act.

18. For all of the foregoing reasons the application is dismissed.

“Brian McLean”

for the Board