The Human Rights Tribunal of Ontario has dismissed a discrimination and reprisal application filed by a former educational assistant with the Durham District School Board (DDSB) who alleged “stereotypes and assumptions about men” as one of the root causes for his dismissal.
The decision, rendered by Adjudicator Amanda Connolley, found there was “no reasonable prospect of success” under the Human Rights Code and emphasized the necessity for applicants to provide evidence linking alleged unfair treatment to prohibited grounds under the Code.
Background
P.T. alleged that his employment was terminated due to discrimination based on sex and that he faced reprisal after raising concerns about gossip and rumours among students. He further claimed that the DDSB failed to properly investigate allegations against him and to address harmful gossip, which he argued constituted sexual harassment.
Employed as an educational assistant, P.T. was terminated on December 7, 2018, due to performance concerns cited by the DDSB. These included “inappropriate interactions with female students; arriving late to work; sleeping in class; and engaging in a heated confrontation with a male high-needs student.”
While P.T. acknowledged some of these incidents, he provided explanations for his actions. For instance, he admitted that his leg made contact with a female student’s leg during a gym activity but contended that it was inadvertent and did not constitute inappropriate touching.
‘Stereotypes and assumptions about men’
P.T. argued that the DDSB’s decision to terminate his employment was based on “stereotypes and assumptions about men,” stating that “because I’m a male the principal and school board made assumptions and relied on stereotypes to determine that some fault or misconduct occurred.”
He believed that a female employee in his position would not have faced the same outcome, asserting that “had this happened to a female employee there is no way this outcome would have occurred.”
During the combined summary and preliminary hearing held on April 29, 2024, P.T. introduced a new allegation of sexual harassment. He claimed that the rumours and gossip among students regarding his alleged inappropriate conduct constituted sexual harassment, and that the DDSB’s failure to address them, along with its participation in spreading them through filings at the Ontario Labour Relations Board and the Tribunal, exacerbated the harassment.
Tribunal’s decision
Adjudicator Connolley found that even if all the facts alleged by P.T. were accepted as true, he had not provided any evidence linking the DDSB’s actions to his sex. The Tribunal emphasized that “accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly.” The decision highlighted that P.T. did not point to any evidence suggesting that a female in the same situation would have been treated differently or that the DDSB’s actions were based on anything other than his actual conduct.
Regarding the new allegation of sexual harassment, the Tribunal noted that P.T. had not requested to amend his application to include this claim and found that his assertions were “speculative and vague.” The decision stated that “the applicant has not pointed to any evidence to support their allegation that the alleged rumours and gossip could be construed as sexual harassment.”
In addressing the reprisal claim, P.T. contended that his termination was in retaliation for raising concerns about the gossip and rumours among students. However, the Tribunal found no evidence to support this assertion. Adjudicator Connolley wrote: “The applicant 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.”
The Tribunal reiterated the legal standard applied in summary hearings, referencing the case of Forde v. Elementary Teachers’ Federation of Ontario, which established that “there must be a basis beyond mere speculation and accusations to believe that an applicant could show a breach of the Code.” The decision further clarified that an applicant’s belief, no matter how strongly held, is insufficient without evidence that could reasonably support a finding of discrimination.
The Tribunal concluded by dismissing the application, stating: “I find that the applicant has been unable to point to any evidence that they possess or any evidence that may be reasonably available to them to make that connection or link to a prohibited Code ground. As such, the applicant has no reasonable prospect of success in establishing that the respondent’s conduct amounts to discrimination.”
For more information, see Tamming v. Durham District School Board, 2024 HRTO 1610 (CanLII).
