Canada: Education Assistant's Human Rights Application Dismissed As No Reasonable Prospect Of Success

In a decision dated April 21, 2015, the Human Rights Tribunal of Ontario dismissed an application brought by an Education Assistant against the York Region District School Board on a preliminary basis as the application had "no reasonable prospect of success."

In Adegorite v. York Region District School Board, 2015 HRTO 498, the applicant was a 36-year-old Black man who had been working for the school board on a casual basis since 2010. While he was working at a secondary school in December 2013, the applicant surreptitiously obtained the phone number of a 16-year-old female student attending the school. While the student was not looking, the applicant picked up her phone and memorized her phone number. Later that same day, the applicant called her several times. The student did not recognize the phone number and did not answer; she sent a text message asking "Okay, who is this?". The applicant wrote back "Lol now u curious! Trouble finder! Lol." and sent a message identifying himself, as well as other subsequent text messages. The student responded to very few of the applicant's messages, but when she responded assertively, he would call her a "feisty woman".

The applicant told the student in the messages that he had been observing her at school and he asked about her work. The applicant also asked the student several times in his messages not to tell anyone that they were messaging, and hoped that she was "mature enuf" to know that she should not tell anyone they were texting. His final text, sent at 11:28 pm, said he was "not trying to have anything secret" with her, but people might get the wrong idea. The applicant deleted all the messages from his phone.

A few days after the exchange of text messages, the student met with the school counsellor and principal and showed them the messages, which she had saved on her phone. The student told the principal that the messages made her uncomfortable and that she tried to respond in an "unpleasant and unencouraging" manner. The school undertook an investigation in response to the student's complaint.

Further to her investigation, the principal interviewed the applicant and obtained a written statement from him. The applicant alleged that he took the student's cell phone number because he was concerned for her. Apparently the applicant had knowledge that the student's ex-boyfriend was recently released from prison and the applicant was worried she would be contacted by him. The applicant stated that he wanted to see if the student would answer her phone if she received a call from an unknown number. The principal suspended the applicant pending the completion of her internal investigation.

Upon completion of the investigation, the school board sent a letter to the applicant notifying him that his behaviour amounted to professional misconduct and his employment was terminated with just cause. The principal also referred the matter to the Children's Aid Society and police, in accordance with her statutory duties.

The applicant initially responded to the school board by letter admitting a "mistake", but claimed the student showed "an unhealthy attachment" to him, and that she felt "rejected" by him.

Ultimately, the applicant filed an application with the Human Rights Tribunal alleging that the school board discriminated against him on the basis of his race and sex, and that his termination was a reprisal. The applicant alleged, in part, that the school board ignored its protocols and policies in terminating his employment without imposing progressive discipline; the school board implied unintended meaning when reading his text messages because he is black and male; and he alleged that if a white female education assistant sent similar messages, her employment would not have been terminated.

The school board requested the Tribunal deal with the application on a summary basis and without a full hearing because the application had no reasonable prospect of success. The Tribunal ultimately agreed after a brief hearing where the parties made submissions and presented documents and case law.

The Tribunal found that there was no reasonable prospect that the applicant would be able to prove on a balance of probabilities that his employment was terminated because he is a Black man, particularly when his behaviour was viewed in the context of the text messages sent by the applicant, and considering the age difference and power dynamic between him and the student. The applicant relied on bald factual allegations and speculations, and pointed to very little probative evidence to demonstrate that his race was a factor in the school board's decision to dismiss him. The Tribunal also noted that under the school board's progressive discipline policy, it was not required to utilize a specific step or level of discipline, and had the discretion to terminate an employee's employment where serious misconduct warranted such a response.

Lastly, the Tribunal found that the applicant had no reasonable prospect of proving his dismissal was a reprisal for claiming his rights under the Human Rights Code. The applicant's allegations of reprisal related to a request in 2011 for accommodation of an undiagnosed medical condition. The applicant was unable to point to any evidence suggesting he actually requested accommodation, or that his termination was retaliation for him having done so. Further, the applicant's allegation that the school board's decision to put the applicant in a temporary position in 2012 was retaliation was not related to any prohibited ground of discrimination and constituted a bald allegation. Similarly, the Tribunal dismissed the applicant's claim that the school board's decision to terminate his employment was retaliation for his request to be placed only in secondary schools in 2012 for reasons related to the birth of his child. Such allegation was entirely without foundation.

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