CITATION: Tamming v. Durham District School Board, 2025 ONSC 3118

DIVISIONAL COURT FILE NO.: 761/24

DATE: 20250530

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Backhouse, Matheson, and Shore JJ.

BETWEEN:

PHILIP TAMMING

Applicant

– and –

DURHAM DISTRICT SCHOOL BOARD,

Self-represented

Frank Cesario, for the Respondent, Durham District School Board

CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 218, and

HUMAN RIGHTS TRIBUNAL OF ONTARIO

Respondents

Amy Kishek, for the Respondent, CUPE, Local 218

Mindy Noble, for the Respondent, Human Rights Tribunal of Ontario

Heard at Toronto: May 21, 2025

REASONS FOR JUDGMENT

Backhouse J.

Overview

[1] Mr. Tamming brought an application at the Human Rights Tribunal of Ontario (“HRTO” or the “Tribunal”), alleging that his termination as an Educational Aide Assistant at the Durham District School Board (the “Employer”) was based on discrimination against him as a male. He also alleged that his termination was a reprisal against him based on his complaints about students’ rumours and gossip about him, which he alleges constituted sexual harassment. The HRTO dismissed Mr. Tamming’s application on November 13, 2024, after a summary/preliminary hearing on the basis that the application had no reasonable prospect of success.

[2] Mr. Tamming submits that the HRTO’s Decision reported at 2024 HRTO 1610 (the “Decision”) should be quashed and the matter remitted to the Tribunal to be considered on its merits.

[3] For the reasons set out below the application is dismissed. In summary, the Decision was reasonable. There was no evidence other than Mr. Tamming’s subjective opinion that the Employer violated the Human Rights Code, R.S.O. c.H.19 (the “Code”).

BACKGROUND:

[4] Mr. Tamming was hired to work as an Educational Assistant with the Employer. In this position, he was also a member of CUPE Local 218. On December 7, 2018, Mr. Tamming was terminated for the following stated performance concerns:

[1] Inappropriate interactions with female students;

[2] Arriving late to work;

[3] Sleeping while in class; and

[4] Engaging in a heated confrontation with a male high-needs student.

[5] The events in question all occurred within Mr. Tamming’s 70-day probationary period (i.e., within the first 70 days of being a permanent employee). This probationary status is expressly set out in the Collective Agreement between the Employer and CUPE.

[6] Mr. Tamming commenced an application at the HRTO. He claimed that the Employer discriminated against him on the protected ground of sex and that it engaged in an impermissible reprisal by firing him when he asked that the Employer address students at the school to tell them not to gossip about him. He also stated in his submissions to the Tribunal that the Employer’s failure to address the rumours and gossip constituted sexual harassment against him.

HRTO Decision

[7] The HRTO dismissed Mr. Tamming’s application on the grounds that his claim was not supported by any evidence and therefore had no reasonable prospect of succeeding. It held that even accepting all the facts alleged by Mr. Tamming as true, Mr. Tamming had not been able to point to any evidence that supported his assertion that the actions of the Employer were connected to the Code ground of sex. Mr. Tamming set out several theories and demonstrated his belief that he suffered an injustice. However, he did not connect the Employer’s conduct to Mr. Tamming’s sex, which was the protected ground he alleged.

[8] Although Mr. Tanning did not allege sexual harassment in his application, the HRTO also considered and dismissed his arguments around this claim. The Tribunal found that the allegation was vague and based on Mr. Tamming’s speculation that students were gossiping and spreading rumours about him. The Tribunal found that the Mr. Tamming did not point to any evidence to support his allegations about sexual harassment. The Employer filed submissions regarding those rumours and gossip in a separate proceeding before the Ontario Labour Relations Board (“OLRB”), but there was no evidence to support his allegations about sexual harassment. The OLRB proceeding was subsequently withdrawn.

[9] Finally, the HRTO considered Mr. Tamming’s submission that his termination constituted a reprisal for his complaint about the students’ gossiping and rumours. He could not point to any evidence showing that his concerns about the gossip and rumours were the reason for his termination beyond his own suspicions or beliefs. His allegation was a bald assertion.

Issue

[10] There is only one issue for the court in this application: was the HRTO’s decision reasonable?

Court’s Jurisdiction

[11] This court has jurisdiction to hear this application pursuant to ss.2 and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c.J.1.

Standard of Review:

[12] Section 45.8 of the Human Rights Code, R.S.O. 1990, c. H.19, provides that a decision of the HRTO may only be altered or set aside if it is “patently unreasonable”. In Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458, at paras. 42-68, the Court of Appeal clarified that reasonableness review applies.

[13] It is well-settled that the standard of review is reasonableness. Mr. Tamming provides no support for his incorrect submission that the legal issues he is arguing constitute questions of law that are central to the legal system as a whole and therefore are subject to correctness review.

[14] The courts in Ontario have repeatedly affirmed that the HRTO is a highly specialized expert tribunal that is entitled to “the highest degree of deference” on judicial review on these types of decisions: Ontario (Health) v. Association of Ontario Midwives, supra, at para. 65-83; Yan v. 30 Forensic Engineering Inc., 2023 ONSC 6475, at para. 27.

Analysis

Was the HRTO’s decision reasonable?

[15] Mr. Tamming focused his submissions on his argument that the Employer had no justification for determining that misconduct occurred and that this was discriminatory. He argued that the Employer was not justified in terminating his probationary employment based on the misconduct addressed above and should not have credited student complaints and concerns. But that was not the issue at the Tribunal and is not the issue in this Court The Tribunal determined that there was no reasonable prospect that he could succeed on his allegations of discrimination—in other words that there was no evidence either proffered by Mr. Tamming or to which he could point to support his allegations that he was fired or reprised against because he is a man.

[16] Mr. Tamming argues that the Tribunal made the following errors:

1. The HRTO failed to presume the truth of his factual assertions and to judge the case on a balance of probabilities.

2. The HRTO erred by insisting that the protected ground of sex be the sole reason for the adverse impact that he experienced when it need only be a factor in the adverse impact.

3. The HRTO failed to properly consider the evidence. Instead, the HRTO relied on instances of speculation and belief.

[17] Mr. Tamming further states that new information is available. He states that:

1. The Employer stated that the union did not provide him fair representation.

2. The Employer falsely stated that Mr. Tamming had been inappropriately touching students.

[18] Contrary to Mr. Tamming’s submission, the HRTO decision did not fail to presume the truth of his allegations. However, the Tribunal reasonably distinguished between accepting the facts alleged by Mr. Tamming and accepting his assumptions about why he was treated unfairly. At paras. 6 and 7 the Tribunal stated:

[6] The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment that they experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary or the evidence is not disputed by the applicant.

[7] However, and significantly, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The purpose of the summary hearing is to determine whether the applicant is able to point to any information which tends to support their belief that they have experienced discrimination under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any evidence that may reasonably be available to the applicant to connect the allegedly unfair treatment with the Code’s protections.

[19] The HRTO did not unreasonably insist that the protected ground of sex be the only reason for the adverse impact. Rather, it found no evidence that the protected ground of sex was a factor in any way in Mr. Tamming’s treatment. At para. 25, the HRTO stated:

[25] Even if I assume that the allegations made by the applicant are true, the applicant did not, in their submissions made in the hearing, point to any evidence in their possession, or that may reasonably be available to them, to indicate that any of the actions of the respondent [the Employer] were connected to the Code ground of sex, as alleged in the Application.

[20] Contrary to Mr. Tamming’s submission that the HRTO did not consider the evidence and relied on speculation and belief, the HRTO found:

[27] It is clear that the applicant strongly and genuinely believes that an injustice was done to them. However, the applicant did not point the Tribunal to any evidence to support a link between the applicant’s ground and the respondent’s actions, namely the termination of their employment by the respondent, the respondent’s alleged failure to investigate and respond appropriately to the allegations of inappropriate interactions made against the applicant, and the respondent’s alleged failure to address gossip and rumours amongst students. The applicant did not point to any evidence that the respondent’s actions were not directly responsive to the applicant’s actual conduct. For example, the applicant did not point to any evidence to support their belief that a female in the same situation would have been treated differently by the respondent. As noted, the Tribunal cannot address allegations of unfairness that are unrelated to the Code.

[21] The Tribunal also considered the Applicant’s allegations of sexual harassment, despite those allegations not being pleaded. The Tribunal concluded that even if the allegation was properly before it, “the applicant did not point to any evidence to support their allegation of sexual harassment…the applicant did not provide any particulars relevant to their allegation of sexual harassment…Rather, the information shared by the applicant was speculative and vague”: Decision, paras 31-34.

[22] The Tribunal also considered and rejected Mr. Tamming’s allegations of

reprisal, as follows:

[40] The applicant, in their Application and submissions made during the hearing, appears to allege that their employment was terminated due to the applicant raising concerns with the respondent about gossip and rumours amongst students at the school. According to the applicant, the gossip and rumours related to the complaints made against the applicant alleging inappropriate interactions with female students.

[41] The applicant, however, did not point to any evidence that could substantiate or support their belief that the respondent terminated their employment because the applicant raised a concern relevant to alleged gossip amongst students or that there was an intention on the part of the respondent to retaliate against the applicant for raising this concern. There was no reference to evidence that could support the termination was based on anything

other than concerns about the applicant’s performance. As such, the applicant’s allegation is merely an assertion that a reprisal took place. In the absence of any evidence to support this assertion, there is no reasonable prospect that the applicant would be able to demonstrate an intent to reprise on behalf of the respondent.

[42] I find that the applicant has failed to provide a factual basis, other than a bald assertion, for their claim of reprisal or threat of reprisal against the respondent.

[23] Mr. Tamming also took issue with the Employer’s submissions at the OLRB where he claimed CUPE breached its duty of fair representation. He submitted that the Employer’s submissions were “a fraudulent mis-representation of the facts […]” [sic] and “perpetuated the sexual harassment of spreading false rumours and gossip of inappropriate conduct having occurred.” At para. 35, the Tribunal found:

[35]… While the applicant may disagree with the submissions filed by the respondent in response to the proceedings commenced by either the union or the applicant at the OLRB and the Tribunal, the applicant has not pointed to any evidence to support their belief that respondent’s submissions constitute sexual harassment. In addition, while not determinative of the issue before me, I note that the proceedings before the OLRB were subsequently withdrawn.

[24] Mr. Tamming’s submission that there is new evidence about CUPE’s failure to provide fair representation does not address the Board’s basis for dismissing his application -because there was no evidence to support his allegations of discrimination on a Code protected ground. Nor has he shown that this Court should receive new evidence.

[25] Mr. Tamming also improperly seeks to relitigate the same arguments that were dismissed at the HRTO regarding the duty of fair representation, which is a matter for the OLRB. That duty is not properly the subject of this judicial review nor were any records produced or support for his claim that the Employer gave evidence at the HRTO hearing that CUPE had breached its duty of fair representation.

[26] The Court in Canada v. Vavilov, 2019 SCC 65, at para.85, authoritatively explained the reasonableness standard: “a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker. The reasonableness standard requires that a reviewing court defer to such a decision.”

[27] The applicant on judicial review bears the heavy burden of satisfying the court that there are “sufficiently serious shortcomings” in the decision to warrant quashing it: Vavilov, at para. 100; Thales DIS Canada Inc. v. Ontario (Transportation), 2023 ONCA 866, at paras. 92-93.

[28] The Tribunal accurately set out in its Decision the applicable legal principles relating to summary hearings that governed its Decision. The issue was simply whether, assuming Mr. Tamming’s allegations to be true, his claims of discrimination, sexual harassment and reprisal had any reasonable prospect of success. This required the Tribunal to apply the legal principles to the allegations, evidence and submissions provided by Mr. Tamming.

[29] The Tribunal’s reasoning is logical and justifies its conclusions. As required by its governing caselaw, the Decision assumes the facts alleged to be true, and closely analyzed whether Mr. Tamming pointed to any evidence that supports his assertion of discrimination. There was no such evidence to which Mr. Tamming could point. Simply put, his view (even accepting that he believes it to be true) does not amount to an allegation of discrimination that has any reasonable prospect of success.

[30] At its root, Mr. Tamming’s claim was that he was fired because of “assumptions” and “stereotypes” about men, and that the reasons for his termination were “MeToo fantasy” and constituted “social violence against men”. The Tribunal understood the basis of Mr. Tamming’s claim and applied the relevant legal principles to them. Mr. Tamming pointed to no evidence that he was fired for discriminatory reasons or reprised against because of his sex or that he was treated differently than a female employee in the same situation.

[31] Mr. Tamming has not met his burden on this judicial review to show that the Decision is unreasonable.

Conclusion

[32] The application is therefore dismissed.

Costs

[33] The Employer seeks its costs to which it is entitled as a successful party. Mr. Tamming shall pay costs of $6000 all inclusive to the Employer. The HRTO and CUPE do not seek costs and none are awarded.

Backhouse J.

I agree _______________________________

Matheson J.

I agree _______________________________

Shore J.

Released: May 30, 2025

CITATION: Tamming v. Durham District School Board, 2025 ONSC 3118

DIVISIONAL COURT FILE NO.: 761/24

DATE: 20250530

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Backhouse, Matheson, and Shore JJ.

BETWEEN:

PHIL TAMMING

Applicant

– and –

DURHAM DISTRICT SCHOOL BOARD, CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 218, HUMAN RIGHTS TRIBUNAL OF ONTARIO

Respondents

REASONS FOR JUDGMENT

Backhouse J.

Released: May 30, 2025