Gilmar v. Alexis Nakota Sioux Nation Board of Education

Gilmar v. Alexis Nakota Sioux Nation Board of Education
Collection
Canadian Human Rights Tribunal
Date
2009-10-28
Neutral citation
2009 CHRT 34
File number(s)
T1327/5708
Decision-maker(s)
Findlay, Kerry-Lynne
Decision type
Decision
Decision Content
CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE
MELANIE GILMAR
Complainant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
ALEXIS NAKOTA SIOUX NATION BOARD OF EDUCATION
Respondent
DECISION
2009 CHRT 34 2009/10/28
MEMBER: Kerry-Lynne D. Findlay, Q.C.
I. COMPLAINT
II. BACKGROUND
III. DECISION
IV. COMPLAINANT'S CASE
A. Evidence of Melanie Gilmar
B. Evidence of Richard Svekla
C. Witness Issue
D. Prima Facie Case
V. RESPONDENT'S CASE
A. Evidence of Wolf Kolb
B. Evidence of Liz Letendre
C. Evidence of Georgeann Jones
VI. ANALYSIS/CONCLUSION
VII. REMEDY
A. Systemic Remedy
B. Lost Wages and Lost Pay Due to Hearing Attendance
C. General Damages for Pain and Suffering
D. Special Compensation
E. Interest
F. Solicitor Client Costs
G. Retention of Jurisdiction
I. COMPLAINT [1] Melanie Gilmar's complaint against the Alexis Nakota Sioux Nation Board of Education is dated November 1, 2006, and brought pursuant to section 7 of the Canadian Human Rights Act (the Act). The relevant prohibited ground is sex (pregnancy) pursuant to sections 3(1) and 3(2) of the Act.
[2] Section 7 of the Act reads:
It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual, or
(b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination. [1976-77, c.33, s.7.]
[3] The practices complained of include termination of employment, failure to accommodate, adverse differential treatment, and refusal to hire. It should be noted that failure to accommodate is not a discriminatory practice under the Act. The Tribunal found in Moore v. Canada Post Corporation, 2007 CHRT 31, at para. 86 that failure to accommodate is neither a prohibited ground of discrimination nor a discriminatory practise under the CHRA. There is no free-standing right to accommodation under the CHRA.
[4] The alleged conduct arose between the dates of January 31, 2006 to September 2006, but is also alleged to be ongoing.
[5] Both the Complainant and the Respondent were represented by legal counsel at the hearing. The CHRC was not represented.
II. BACKGROUND [6] The Complainant, Melanie Gilmar (Ms. Gilmar) is a 33 year old teacher who now holds a Permanent Teaching Certification in the province of Alberta. At the time of the hearing, she was employed by Pembina Hills Regional Division No. 7, teaching grades 9 and 10, in her third year there.
[7] At the time the complaint arose, Ms. Gilmar was teaching in Alberta pursuant to a renewable Interim Teaching Certification.
[8] Ms. Gilmar received her post-secondary education in British Columbia from the University of Victoria. She received her Bachelor of Arts degree in 1998 with program emphasis in European and North American History, and Russian Language and Literature. She followed this with a Post-Degree Professional Program Certification in 1999 with program emphasis in Secondary Education - Social Studies and Language Arts Major.
[9] After her University of Victoria studies, Ms. Gilmar taught or substitute taught in a variety of settings in both British Columbia and Alberta, prior to applying for employment with the Respondent.
[10] During that same time period, Ms. Gilmar commenced study toward receiving a Children's Mental Health Certificate through Mt. Royal College in Calgary which she has since obtained.
[11] Additionally in 2000, she completed various short-term training and certifications, mostly offered through Professional Development, including a two day seminar course entitled Later Literacy for Aboriginal Students.
[12] Among her completed workshops were courses in Special Needs & Mainstreaming and First Nations Issues.
[13] In her teaching experience prior to working for the Respondent, Ms. Gilmar taught various subjects at the grades 5, 6, 7, 8, 9, 10 and 11 level, as well as Law 12. Some of these courses were modified for students with special needs.
[14] During an 8 month teaching assignment in 2000, Ms. Gilmar gained additional First Nations Support experience.
[15] The various subjects Ms. Gilmar has taught include Language Arts, Math, Physical Education, English, French, Drama, Science, Computers, Career and Personal Planning, Outdoor Education, Study Skills. She has also carried out some administrative duties.
[16] Of some particular relevance to these proceedings, Ms. Gilmar had prior teaching experience in Social Studies in grades 7, 9 (IOP), 9 (regular classes), and 11. The IOP designation again indicates teaching of special needs children.
[17] Alexis Nakota Sioux First Nation is located approximately 85 kilometres west of Edmonton, near the town of Glenevis, Alberta. The Respondent (Alexis) is the Board of Education for the Alexis Nakota Sioux First Nation. I will use the name Alexis to refer to both the Board of Education and the school, as both bear that name as does the First Nation itself.
[18] Alexis governs and operates on-reserve the Alexis Elementary and Junior/Senior High School, providing instruction in grades one through twelve. It is an accredited school, offering grade twelve matriculation upon completion. Alexis also governs and operates an on-reserve Adult Academic Upgrading Program.
[19] The number of students in the grade school varies, but currently totals approximately 230 students. There are currently 18 support staff and 14 teaching staff members. None of the non-aboriginal teaching staff live on reserve.
[20] Alexis also funds some Band member students that live on reserve to attend Onoway elementary school and Onoway Junior/Senior high school through a tuition agreement. These are off-reserve public education facilities under the jurisdiction of the Northern Gateway Regional Division No. 10.
[21] Ms. Gilmar was employed as a teacher for Alexis for a one year term commencing September 1, 2004 through to August 31, 2005. She was then offered a second one year contract in June 2005, commencing September 1, 2005 which should have ended therefore on August 31, 2006.
[22] Based on her first year of teaching at Alexis, and with a new contract offer, she commenced teaching for the second consecutive year on August 30, 2005, at or about which time Ms. Gilmar informed the Alexis School Principal, Mr. Wolf Kolb, that she was pregnant and would be commencing a seven month maternity leave as of January 31, 2006.
[23] The second contract when presented to Ms. Gilmar in September 2005, had been altered by the Director of Education, Liz Letendre, to a term of September 2005 through to January 31, 2006.
[24] Liz Letendre was employed by Alexis as the Director of Education throughout the relevant dates of this complaint, and remains in that position.
[25] Wolf Kolb was first a teacher, and later Principal, of the Alexis Elementary and Junior/Senior High School for several years including at the time that this complaint first arose. At the time of the hearing, Mr. Kolb was no longer an employee of Alexis.
[26] Alexis did not offer Ms. Gilmar another teaching contract after her departure for maternity leave on January 31, 2006.
III. DECISION [27] The Tribunal, for the reasons that follow, finds that Ms. Gilmar has made out a prima facie case of discrimination against Alexis within the meaning of section 7 of the Act, on the basis of sex (pregnancy). The Tribunal further finds that Alexis has failed to establish a bona fide occupational requirement to discharge the onus upon it. As a result, Ms. Gilmar's complaint is substantiated.
IV. COMPLAINANT'S CASE A. Evidence of Melanie Gilmar [28] Ms. Gilmar testified that she kept a written record of her interactions with Alexis as it is common practice in the teaching profession to do so about employment matters, and also she was advised to do so by her pre-natal care professionals. Most of her testimony was from independent recall; at some points she relied partly on her written records kept contemporaneously, which were exhibited. I found Ms. Gilmar's evidence to be detailed, consistent under cross-examination, and credible in all respects.
[29] As to her introduction to Alexis, Ms. Gilmar testified that she originally interviewed to teach Grade 7, but was ultimately hired to teach Grade 6.
[30] Ms. Gilmar had worked as a First Nations academic support teacher in Chilliwack, British Columbia for 7 months. She testified that she had thoroughly enjoyed learning about First Nations culture at that time, and helping her students adapt to a learning environment. Some of those First Nations children had mild to moderate learning difficulties that required special goal-setting and accommodation.
[31] Further, Ms. Gilmar was taking a Children's Mental Health certification at the time of her application to teach for Alexis (completed in 2006). From this background and experience she was looking for a teaching position with First Nations students, desiring to help them with their special needs. At Alexis, all students are First Nations children.
[32] Commencing September 1, 2004, Ms. Gilmar was offered a one year contract with Alexis. This offer was first based on her written application that included her educational credentials, her transcripts, a child welfare check, and a criminal record check. This was followed by an interview with a panel of three: Liz Letendre, Director of Education, Wolf Kolb, School Principal, and Shane Allan, School Vice-Principal. The class she taught averaged about 25 students in size.
[33] Alexis paid their teachers based on a pay grid outlined in the contract, which in turn was based on the teacher's experience in Alberta. Ms. Gilmar had previous experience in British Columbia but this did not form part of the pay grid recognition.
[34] The relevant employment contract contains a Personal Leave provision, which allows a teacher to request up to 3 days leave for personal reasons per one year term, with pay less the cost of Alexis hiring a substitute teacher. There are other terms concerning unpaid leave as well.
[35] Ms. Gilmar took time away in October 2004 under the above provisions to attend a family reunion and see her dying mother-in-law. Her request, which she was told is within the discretion of the Principal, was originally denied but later granted. There was some disagreement between Ms. Gilmar and Mr. Kolb as to how she would be paid during her time away, and how the substitute teacher would be recompensed, but this was resolved. To Ms. Gilmar, this was a minor professional matter which was dealt with and removed as a concern.
[36] During the year, Mr. Kolb would generally do two teacher evaluations when he would visit a classroom, sit in on the instructions long enough to form performance opinions, and prepare a written report. That report would be seen by the teacher, and discussed with her.
[37] Ms. Gilmar's first evaluation took place on November 15, 2004. Generally, Mr. Kolb would see more than one class to assess the teacher, but in Ms. Gilmar's case he only observed one class because, he advised, of his busy schedule.
[38] Ms. Gilmar enjoyed her time teaching at Alexis and wanted to continue. As to any difficulties in her classroom, she testified that some students were very defiant toward authority, used coarse language and spoke inappropriately threatening her with Chief and Counsel sanctions because of their families' position in the Band. She had some frustrations about this, as she observed that these children were treated more leniently and she was unable to get the school or school board administration to take any real action against this behavior. She testified that she did not accept this behavior, but tried to work with it and improve the situation.
[39] Among her teaching methods, Ms. Gilmar created some individual programs for the children, and engaged their parents. She instituted birthday celebrations with the classroom, so that each child could feel special even if they weren't as academically ahead as others. She found that this successfully mitigated against the need for disciplinary practices. Ms. Gilmar testified that it is `standard procedure' for a teacher to recommend which students would fit a special needs program, for example a child with oppositional defiance behavior, and she did so.
[40] Ms. Gilmar testified that Mr. Kolb did review her first evaluation with her, one that she was well pleased with. There were two question marks at Item #5 and Item #6 on the evaluation, but these were not issues of serious concern. Ms. Gilmar testified that she used various tools to evaluate learning, such as tests and worksheets. The need to utilize these evaluations does not arise every day, however, and did not happen to coincide with the Principal's attendance for one class to observe. The question mark at Item #5 simply related to Mr. Kolb not being able to assess her use of that methodology at that time.
[41] The question mark at item #6 of the evaluation pertained to Ms. Gilmar net yet having filed a Professional Growth Plan. Ms. Gilmar knew she was expected to develop a written Plan, but at the time of the evaluation did not know that it was to be filed through the Principal. When she realized this, she quickly filed one to comply.
[42] Ms. Gilmar's second evaluation in her first year with Alexis took place on March 11, 2005. She again was very pleased with the indications that she had met all professional standards. This evaluation was taken after her first Personal Leave. The evaluation indicated no cause for concern.
[43] In June, 2005, Ms. Gilmar testified that Mr. Kolb advised her that he was going to recommend her for a second year of teaching from September, 2005 through to August, 2006. She responded that she was very pleased she would be in the same school and the same grade, and she accepted the offer so made.
[44] Ms. Gilmar's first day of her second year of teaching was August 30, 2005, as classes began the next day. After a staff meeting on that day, Ms. Gilmar advised Mr. Kolb that she had discovered in July that she was pregnant. She advised him that she had planned the pregnancy so that she could take 7 months off for maternity leave, and return to teach in September, 2006.
[45] Mr. Kolb congratulated her, but commented that he thought that once she was home with a new baby she might want to take a whole year off for maternity leave. He agreed with her that her leaving at the end of January 2006 would be ideal because it coincided with the mid-year school break. He further advised that Alexis had interviewed a Georgeann Jones to teach grade 3, but that Alexis had not yet hired her, and encouraged Ms. Gilmar to use Ms. Jones as a substitute prior to her leave for purposes such as doctor appointments or sick days. There was no indication from Mr. Kolb at this time that Ms. Gilmar's expectations of returning to teach as of Fall 2006 was unfounded, unwelcome, or unlikely. To the contrary, comments such as discussing the length of her maternity leave, led Ms. Gilmar to reasonably believe that her request and suggestion found favour with Mr. Kolb.
[46] Ms. Gilmar testified that Mr. Kolb's positive response pleased her, and made her feel confident about her plans and the timing of them. She advised Mr. Kolb that she and her spouse had agreed that he would stay home to care for the new baby upon her return to work, as he was employed in customer service at a bank and earned less than she did.
[47] Pursuant to Mr. Kolb's suggestion, Ms. Gilmar did then use Ms. Jones for all her substitution needs including doctor appointments and a second Personal Leave in October 2005.
[48] Three weeks into the new school year, on or about September 22, 2005, Ms. Gilmar was handed her new contract by Mr. Kolb, but there had been a date change showing it ended on January 31, 2006 instead of the end of August as discussed and agreed. She questioned Mr. Kolb about this. He advised her that it had been prepared by Liz Letendre, the Alexis Superintendant, who drew up all the teaching contracts.
[49] Upon reflection, it also concerned Ms. Gilmar that the contract was silent concerning any change of date or expectation, should the pregnancy terminate for whatever reason making the maternity leave unnecessary.
[50] In or about this time, Ms. Gilmar spoke to two other teachers who had returned to teaching after maternity leaves without problem, which gave her comfort that she would be treated fairly. She also had already been teaching for almost a month, and felt that if she did not sign the contract as presented that this would cause problems and perhaps threaten her position.
[51] At the time, Mr. Kolb explained to Ms. Gilmar that he really didn't understand why the change was made, but that he assumed it was simply done to coincide with her maternity leave, and that the Superintendent would follow appropriate procedures. Given all the circumstances, Ms. Gilmar was uncertain, but ultimately this seemed reasonable and she relied on Mr. Kolb's assurances.
[52] The new contract showed her salary based on the grid now at $46,624.00 per year, with the same leave provisions. She signed it on September 24, 2005.
[53] Ms. Gilmar testified that although she is aware that all schools have a policy manual, the Alexis one was not referred to during staff meetings she attended, nor did Mr. Kolb tell her to refer to it. She claimed the first time she had seen it was when it was presented through these proceedings, after her complaint was filed. She noted that the manual calls for there to be two evaluations per year done, but she only received these in her first year of teaching.
[54] Mr. Kolb did not do an evaluation of Ms. Gilmar's teaching in her second year with Alexis, September 2005 to January 2006. Ms. Gilmar assumed at the time that his schedule was simply too busy to allow it. At the time she was unconcerned as she had no reason to believe that her teaching was not accepted by Mr. Kolb and Alexis.
[55] Ms. Gilmar was asked about her stated desire to obtain her Permanent Teaching certificate. She had become eligible to apply as of October 19, 2005.
[56] She testified that starting in September 2005 and over several conversations, she approached Mr. Kolb to ask if he would assist her in the certification process. He advised her at the time that it was a three part process, and her supervision would have to be done by an outside agency. Alexis usually made such arrangements, therefore he said he would look into what could be organized and get back to her.
[57] In October 2005, she and Mr. Kolb had a further conversation about Ms. Gilmar's certification. At that time, Mr. Kolb advised her that it could be done before she left on her maternity leave, but it would be very rushed as ideally it should be done over the course of a whole school year. He suggested to her that she wait until she returned and had a full school year to complete it, because she might find it a stressful process.
[58] Ms. Gilmar testified that at first she felt she had a good class, was teaching even better than the year before when she was new to the environment, and that it would not be a problem to complete the process within the present term. On the other hand, she felt that Mr. Kolb was trying to look out for her, and that his was a thoughtful recommendation that she should listen to.
[59] Additionally, and most significantly as events unfolded, Ms. Gilmar thought at that time that she would be returning to teach at Alexis after her maternity leave, and was unaware of any reason that she would not be. As a result, she did not proceed through the certification process at that time, and she was professionally disadvantaged by the delay.
[60] Ms. Gilmar testified that she was never notified by Mr. Kolb, any other Alexis representative, or in writing from any source that there were deficiencies in her teaching, or that there were concerns as to her commitment to the Alexis students.
[61] During the first term of her second year at Alexis, Ms. Gilmar did take a second Personal Leave to attend a family wedding where she and her husband were part of the wedding party. Again, Ms. Gilmar felt the request was handled professionally, and that she and Mr. Kolb continued their collegial relationship before and after that Leave.
[62] As to her own assessment of her teaching in her second year at Alexis, Ms. Gilmar testified that she felt she was doing well: she felt even more pleased to be at Alexis; she had built a rapport and respect over time; there was continuity now; and she had been able to refine and build upon her teaching experience the year before.
[63] Evidence was given as to a Record of Employment ROE given to Ms. Gilmar upon her taking maternity leave. She testified that she requested her ROE from Ms. Letendre so that she could apply for Employment Insurance maternity benefits. There was no top up given through Alexis. The reason for her leaving on the ROE is cited as F, which is the code for maternity.
[64] At the time of her leaving, Ms. Gilmar testified that she e-mailed Ms. Letendre for her ROE, and indicated to her at that time she would be returning in September as she had told Mr. Kolb earlier. Also, Mr. Kolb had told her to write a letter of intent to return, and he would follow up with that for her. On her last day she asked him as to the timing on that letter, and he indicated he would like it from her before May, 2006.
[65] Ms. Gilmar was very specific that she had no indication from anyone representing Alexis that she would not be returning. Mr. Kolb and staff organized a surprise baby shower for her, Mr. Kolb gave her a personal gift in addition to the group gift(s) that were given, and Mr. Kolb's participation led her to believe that they were still on amiable and collegial terms. She felt her working relationship with Mr. Kolb was consistently positive. Mr. Kolb and others encouraged her to return and bring her baby in for a visit when she could. Her overall sense was that she would be returning to teach in September 2006.
[66] Ms. Gilmar's child was born on February 27, 2006. As she was invited to do, Ms. Gilmar brought her new baby to Alexis in mid-March, 2006. She testified that her former students came running up to her with excitement. Some of them, and Mr. Kolb, held the baby. At that visit, Ms. Gilmar took the opportunity to ask Mr. Kolb the date the new school year was starting, and he reminded her to give him her letter of intent by April.
[67] Ms. Gilmar sent the letter of intent to both Mr. Kolb and Ms. Letendre on April 27, 2006.
[68] On May 2, 2006 Ms. Gilmar received an e-mail from Mr. Kolb stating that she would not be offered a teaching position at Alexis for the 2006 -2007 school year. Ms. Gilmar testified that she was shocked and concerned, and did not accept the reasons initially given by Mr. Kolb that Alexis was downscaling the teaching staff.
[69] Over time, Ms. Gilmar came to understand that Ms. Georgeann Jones, who had been hired to substitute for her while she was on maternity leave, was given a full-time teaching position with the grade 6 class that she had taught the year before. She also came to understand that there were other teachers hired for the 2006 - 2007 year, at least some of whom were less qualified than she. She believed that Ms. Jones' academic qualifications were no greater than her own, and that before Ms. Jones substituted for her, Ms. Jones had not taught in many years.
[70] The day after Ms. Gilmar received the May 2, 2006 e-mail, she telephoned Mr. Kolb to question him on his reasoning for not renewing her position, and he advised her that Alexis was looking for a different skill set....of more benefit to the school than what she possessed. When she pressed him on what he meant by skill set, his response was unclear and inadequate. When she asked him about the grade 6 instruction, he responded that the school was restructuring, and then he told her that he and the Alexis board had thought she would be taking a whole school year off. He also told her that the Alexis Board felt she wasn't happy there, which also shocked her. In other words, Ms. Gilmar felt that Mr. Kolb's responses kept changing when she pressed him to be more specific or back up the reasons he was giving her.
[71] Ms. Gilmar testified that she advised Mr. Kolb that she was happy at the school, and that any conflicts that had occurred she felt were minor and had been dealt with. She was very shocked and concerned, and very confused as to the reasons Mr. Kolb was giving her.
[72] Ms. Gilmar further testified that even at this juncture, Mr. Kolb alluded for the first time to professional issues, but did not present any of the reasons or specifics, rather saying that other teachers brought other experiences to the table.
[73] Ms. Gilmar stated that she reiterated her special needs experience, and that she was happy to offer those skills to the school. She emphasized that she wanted to work with the students who really needed her.
[74] Between May 5 and 10, 2006, Ms. Gilmar called Ms. Letendre about a pay error, and brought up her dismissal. Ms. Letendre stated that she did not know of it, but proffered that she prefers if teachers take a full year off for maternity leave. She suggested she would speak to Mr. Kolb about the matter.
[75] Ms. Gilmar then contacted Mr. Kolb again, as she now understood that she would have to start looking for employment elsewhere. As a result of her request, Mr. Kolb provided her with a strong letter of reference dated May 16, 2006.
[76] Ms. Gilmar felt that the letter of reference was a fair assessment, and believed in part because of the letter's contents that she had done a good job and that Mr. Kolb would have hired her back but could not because of the re-structuring he had talked to her about. Nevertheless, as she continued with her job search she remained concerned about whether Alexis had followed a legitimate procedure in the way they had ultimately treated her.
[77] These doubts led Ms. Gilmar to file a Canada Labour Code complaint at the end of May, 2006.
[78] Exhibited in the proceedings was a letter dated July 17, 2006 from Mr. Kolb to a representative of HRSDC (Human Resources and Skills Development Canada) in response to Ms. Gilmar's complaint. Once again, she testified as to her surprise that in this letter he expressed that she did not possess the skills to fill any positions available at Alexis. Ms. Gilmar also learned for the first time that Alexis was taking the position that her second contract ended her employment as of the end of January, 2006.
[79] Ultimately, the Labour Code complaint was dismissed on the basis that Ms. Gilmar had a fixed term contract that had ended January 31, 2006.
[80] Subsequently, in mid-July, Ms. Gilmar came across two job postings published in the Edmonton Journal for teaching positions at Alexis for the 2006-2007 school year, which she felt qualified for. When she contacted Mr. Kolb about these postings, he indicated that Alexis was looking for teachers with different skill sets than she possessed. He told her she could apply anyway, but she felt she had a standing application with Alexis as all of her information was on file and Alexis knew of her continuing interest in a post there. In any event, on cross-examination she pointed out that this conversation took place on a Friday, with the job postings closing on the following Monday. There was neither time to put in a separate application, nor time to prepare new hard copies of relevant materials and have them couriered.
[81] An issue arose in the course of the hearing as to what degree of extra-curricular time and interest Ms. Gilmar put in as a teacher at Alexis. In Mr. Kolb's letter of reference he praises her for volunteering to create a cross-country running team that grew from 3 to 20 students and competed in a First Nations meet, noting that she continued to coach it when she was pregnant. He also noted that she helped out with the Christmas concert, pursued professional development, and attended social events.
[82] Another issue that arose during the course of the hearing was the Alexis practice concerning the offering of one year or multi-year teaching contracts. It was Ms. Gilmar's observation, and her understanding from other teaching staff, that Alexis routinely offered new teachers a one year contract. After that first year, if all went well, the teacher was normally offered a further one year contract or more probably a three year contract. Because of this, Ms. Gilmar did not question being offered a second one year contract, as she thought a three year contract would follow the following year.
[83] Ms. Gilmar was questioned as to whether her second contract of employment with Alexis had been given to her conditionally, contingent on her improving her teaching performance. Ms. Gilmar testified that she was totally unaware that this might be the case, and made the point that if it was, why did Mr. Kolb not evaluate her in the September 2005 - January 2006 term. I accept that this contract was offered for a one year term and that it was not contingent on her performance.
[84] She maintained that she was never criticized for her direct teaching skills, nor told that she did not have enough First Nations content or interest in First Nations culture, nor that she did not participate sufficiently in extra-curricular on reserve activities. The first she heard of such comments and criticisms of her performance was post her Labour Code complaint.
[85] Ms. Gilmar was also unaware of any internal appeal process from the decision not to extend her a teaching contract, nor was such a process highlighted or pointed out to her by Mr. Kolb or anyone else on behalf of Alexis.
[86] In the summer of 2006, after she was advised that she would no longer be given a teaching position at Alexis, Ms. Gilmar was given a second ROE issued by Ms. Letendre. This ROE states that the reason for her leaving the employ of Alexis was no longer F as code for maternity, but now K as code for other.
[87] On July 18, 2006 during a conversation with Ms. Letendre, she accused Ms. Gilmar of having not told Alexis at the time her second contract was offered that she was pregnant, and had Ms. Letendre known, she would not have offered her the contract but would have found someone to take the position for the full year. Ms. Gilmar told Ms. Letendre that she did not believe she could be discriminated against because of her pregnancy. Ms. Letendre then re-directed the conversation back to performance issues, to which Ms. Gilmar replied that she felt she was being personally attacked and her professional reputation damaged. She also told Ms. Letendre that she felt she had been blind-sided by Mr. Kolb, and that it would appear that he was telling Ms. Letendre one thing and her another. She also brought up Mr. Kolb misleading her as to going forward with her permanent certification process, and Ms. Letendre said that she was unaware of her request in this regard. She remembered this conversation clearly as she was shocked by what Ms. Letendre said. Ms. Letendre left her with the strong impression that what had transpired had been Mr. Kolb's decision.
[88] When questioned about a May 11, 2006 internal report prepared by Mr. Kolb of Ms. Gilmar's and other teacher's performances, titled Teacher Recommendations, Ms. Gilmar testified that she was shocked by the content. The report recommends that no further contract be offered to Ms. Gilmar. Mr. Kolb detailed when Ms. Gilmar taught, and that she had left for maternity leave. He stated that she is hoping to return in September, that she had been open to his suggestions and made considerable progress, but he felt that her attitude toward the school had been negative and improvements in her teaching had been slow. He summarized that he felt the school would be better served by a stronger more committed teacher.
[89] At the same time that he wrote this internal May 11, 2006 report, Mr. Kolb was telling Ms. Gilmar that the reason she was not being offered a further contract was because the school was downscaling. This document came to Ms. Gilmar's attention through the hearing discovery process, allegedly derived from her personnel file with Alexis, and was unknown to her previously. The substance of Mr. Kolb's assessment reflected in that report was never discussed with Ms. Gilmar by Mr. Kolb or any other Alexis representative.
[90] Of note, the report recommends that Georgeann Jones (Ms. Gilmar's substitute) be given a one year contract, and Mr. Kolb recommended that another teacher who had taught for one year at the school in grade three be given a three year contract.
[91] In the Fall of 2006, when Ms. Gilmar learned that she had been replaced by Georgeann Jones, it was open knowledge that Ms. Jones had been married to a band member and that her children of that marriage were living on the Alexis reserve. In the complaint process Ms. Gilmar had great difficulty obtaining information about Ms. Jones' teaching qualifications or her personnel file at Alexis. The Respondent refused to make any real effort to provide this information, claiming privacy, despite a pre-hearing direction from the Tribunal to produce it. In addition, counsel for Ms. Gilmar was unable to serve a subpoena on Ms. Jones to have her attend at the hearing.
[92] Ms. Gilmar was taken through the documents pertaining to Ms. Jones' educational and professional background that were available at the time of her testimony, and it was evident that their qualifications were roughly equivalent, but that Ms. Gilmar had far more recent experience, including in First Nations teaching and support.
[93] Ms. Gilmar testified that she was aware of the importance of keeping her students engaged, and that she took measures to effect this. In grade 6, all subjects are taught all through the day, so she would use learning games, interaction, models, videos and other teaching aids to keep the children interested in learning.
[94] Under cross-examination, the issue of disrespect by students in her classroom was raised with Ms. Gilmar, who testified to one girl's behaviour in particular that Ms. Gilmar had problems managing. She stated that the girl used vulgar language toward her, and challenged her authority by saying that because her parents /grandparents were band members that there was nothing she could do about it. Ms. Gilmar advised that she had to refer this student numerous times to the School Office and give her detentions, but that her bad behavior continued unchecked by Alexis. At one point, the girl's father came in to speak with Ms. Gilmar, but he was largely unhelpful.
[95] Ms. Gilmar testified that generally swearing at a teacher is considered a major offence. Her reaction would normally be to first try to re-direct the student, second to give them a warning, and third and finally send them to the school office and/or a detention. It is considered an administrative issue once that referral to the school office is made.
[96] Ms. Gilmar also testified that it was a fairly frequent occurrence for parents to drop by the classroom during and outside of class. In addition, she had interaction with parents through the Parent Teacher conferences. Some parents were more involved than others, some only attending at the time of the Christmas concert for example.
[97] When asked if she had initiated any home visits with parents, Ms. Gilmar testified that this had never been brought to her attention, she was not given much guidance on it, and that she did not. She lived a one hour drive away from the Alexis reserve and school, and there was no school time to accommodate home visits. She did however tour the reserve on numerous occasions and did walkabouts.
[98] She also testified that she did attend community functions including one funeral, Christmas masses, creating a competitive running program, and assisting at workshops at school.
[99] Ms. Gilmar was taken through the terms of her employment contracts and she admitted awareness of the 30 day termination and leaves of absence provisions. She acknowledged that she was aware that she would be evaluated through two formal evaluations per year by the Principal, Mr. Kolb, and she expected to be. She reiterated her satisfaction with the evaluation results she had been given and the discussions with Mr. Kolb concerning them. Ms. Gilmar saw it all as appropriate, and part of her professional growth and learning. She maintained that she was shocked to learn that there was anything negative about her performance in Mr. Kolb's later May 11, 2006 report.
[100] Ms. Gilmar also outlined that the routine at Alexis was that you would be given your contract to sign in September after the school year starts. When she first discussed going on maternity leave, all responses to her were positive. She admitted that she received both her teaching contracts a few days in advance to look them over.
[101] Ms. Gilmar also stated that she understood that Mr. Kolb's recommendations on teachers were strongly followed by the Alexis Board, and that he was the most instrumental in the decision-making.
[102] When asked if she integrated First Nations culture into her teaching, Ms. Gilmar testified that she was very enthusiastic about doing this. She gave several specific examples such as using a medicine wheel to illustrate geometry, math, science, and environmental instruction. She spoke of using First Nations medicine cards, and focusing the students on spirit perspective with animals. She would take the students outside at times, and walk out comparative distances between the planets, integrated Stoney language words into her lesson planning, and used the burning of sweet grass. Two of her students were tribal dancers, and one of them a fancy dancer, so she had them showcase their talents in the classroom. She also incorporated First Nations images into her art lessons. I found her demeanour to be very sincere in recounting her desire while at Alexis to incorporate First Nations culture into her lessons, and it was obvious that she made real efforts in this regard. There was no suggestion that she was advised during her teaching that she was not doing enough in this regard in the opinion of Alexis or Mr. Kolb.
[103] On Re-Direct, Ms. Gilmar testified in more detail about the job postings she discovered in the Edmonton Journal during Summer 2006. They were for teaching positions for grade 9 and Outreach for students with special needs like life skills, hunting trips, etc. She made it clear she would have taken any position that Alexis might offer to her.
B. Evidence of Richard Svekla [104] Mr. Svekla is a teacher who taught at Alexis for six years, ending in July 2006. He taught grade 8 Social Studies and elementary classes, and IT (online learning by satellite). He knew Ms. Gilmar from their time both teaching at Alexis.
[105] When he started at Alexis, all teachers were offered one year contracts, but as time went on they were able to get multi-year contracts. His last contract was for three years from 2004-2007, but he decided to leave before it ended. With multi-year contracts, Alexis would update the contracts annually with an update in pay.
[106] Mr. Svekla testified that at the time Ms. Gilmar was teaching there, Alexis would normally offer a one year contract to start and thereafter a three year contract if Alexis was satisfied with your performance. The May 11, 2006 report and recommendations prepared by Mr. Kolb evidence this as stated earlier.
[107] From discussions over time, Mr. Svekla was aware that Ms. Gilmar intended to ret