Please enable javascript to view this page in its intended format.

Queen's University
 

Baharloo v UBC [2011] BCHRTD 290

What questions does a Tribunal ask itself when considering whether a Senate Committee has dealt appropriately with a human rights-related case involving the expulsion of a student?    

Facts

Mr Baharloo was a PH.D candidate at UBC in the Faculty of Dentistry from the fall of 2004 to the fall of 2009, when he was removed from the program. Mr. Baharloo’s version of the events leading to his removal differs significantly from those of the Faculty (outlined below).

According to Mr. Baharloo, Dr. Brunette (his thesis advisor) engaged in course of conduct that amounted to discrimination and harassment on the basis of race and disability starting in 2007. This involved physical and verbal threats as well as harassment and discrimination on the basis of race and disability. When, in the spring of 2008, the University allegedly refused to investigate his complaint against Dr. Brunette, Mr. Baharloo became ill (depression/anxiety) and consequently missed several months of work in the lab. When he took an official leave of absence in the fall of 2008, his funding was cut. Upon his return to the university, Mr Baharloo met with his committee. AT the January 2009 meeting, Dr. Brunette allegedly continued to harass him and placed unreasonable restrictions on his lab time. In August 2009, he was denied a leave of absence due to mental disability allegedly provoked by the alleged harassment/discrimination. Finally, in September 2009, he was asked to withdraw voluntarily from the University. When he failed to do so, the University removed him from the program in Nov. 2009.

According to the Faculty, it was Mr. Baharloo engaged in a course of problematic conduct in the lab (“ongoing disagreements” “very disruptive” (26)) starting in 2007.  Dr. Brunette tried to address the aggressive conduct and advised him to use the UBC counselling services. His relationship with the student deteriorated over time. The student took an unauthorized and unexplained leave of absence starting in May 2008 followed by an official leave of absence in August 2008. His PhD funding was not cancelled as a result of his leave of absence; it had simply expired in August 2008 and was not renewed because Mr. Baharloo had done very little work and spent very little time in the lab. The January 2009 return to the program meeting, his director set conditions under which the student would be allowed to return to the lab “Those conditions included that he conduct himself in a professional manner without being disrespectful or aggressive with other members of the Lab”, that he submit a thesis proposal and that he refrain from ordering materials without permission (30).   The faculty agrees that in September 2009, Mr. Baharloo was asked to withdraw voluntarily from the University. When he failed to do so, the University removed him from the program in Nov. 2009.

 

The tribunal found that the student appealed to the Senate Committee claiming that the decision to terminate him from the program arose from “improper or unfair procedures” including several allegations of harassment and discrimination by his thesis director on the basis of race and disability.  The Senate Committee dismissed his appeal.  Mr Baharloo appealed the Senate’s Committee’s decision to the BC tribunal.  The University applied to have the application dismissed on the grounds that it had already been appropriately dealt with at the University. The student argued that the university’s process of hearing testimony was different from the tribunal’s process; that it was not an external, independent proceeding and that Dr. Brunette had not been a party to the Senate appeal.

Issues

1)       Has the substance of this complaint been appropriately dealt with in another proceeding?

2)        Does it matter that the process used by Senate Committee was different from the process used at Tribunal hearings?

3)       Does it matter that the Senate Committee’s process was internal?

4)       Does it matter that the director was a party to the Senate appeal?

Decisions

1)       Yes

2)       No

3)       No

4)       No

Reasons

1)       The Tribunal accepted that the Senate Committee hearing was “another proceeding for the purposes of s. 27 (1) (f)[1] and that the committee had dealt appropriately with the human rights issue, “in its essence or pith”[2]. As the Tribunal said: “The essence and pith of the complaint are allegations of discriminatory behavior by two respondents (UBC and Dr. Brunette) on the basis of race and physical disability […] .These issues were raised, considered and rejected by the Senate Committee. (48) 

2)       While the Senate Committee’s hearing did not follow the same procedures as would a Tribunal (the former allowed witnesses to hear other witnesses’ testimony and failed to have the witnesses sworn or affirmed, unlike the latter), this amounts only to a procedural difference.  It is not evidence that the senate committee’s process was “substantially unfair:[3]” 

3)       “It is clear from the Tribunal’s decisions that the use of an internal appeal process, without more, is not sufficient to lead to a finding that a complaint cannot be dismissed under s. 27 (1) (f): see Franco (2004).

4)       “Mr. Baharloo notes that Dr. Brunette was not a party to his appeal to the Senate Committee. I agree, but note that Dr. Brunette was present before the Senate Committee, was called to testify and was, presumably, subject to cross-examination. Mr. Baharloo’s allegations as against Dr. Brunette were fully aired before and considered by the Senate Committee. As outlined above, the Senate Committee found those allegations to be unsubstantiated. In these circumstances the Committee’s decision has appropriately dealt with the substance of Mr. Bahraloo’s complaint.” (53).

 



[1] “In Franco v Vancouver Community College, 2004 BCHRT 6, E v. An Institution, 2010 BCHRT 124, the Tribunal accepted that an internal academic appeal process was “another proceeding” for the purposes of s. 27 (1) (f), and I accept that to be so in this case.” (45)

 

[2] “As the Tribunal has repeatedly said, and the Court of Appeal affirmed in Workers Compensation Board v BCHRT , 2010 BCCA 77, para 39 (currently on appeal to the Supreme Court of Canada), determining whether the other process has appropriately dealt with the human rights complaint requires an examination of the decision in the other proceeding and consideration of whether the human rights complaint, in its essence or pith, was dealt with in a manner suitable or proper to that essence or pith. This, in turn, suggests that the appropriate manner of dealing with a complaint may differ depending on the essential nature of the complaint in issue. The Tribunal is concerned with the substance as opposed to the form of the manner in which the complaint was dealt with.” (46)

 

[3] “In Migliorini v Greate Victoria Public Library, 2005 BCHRT 47, the Tribunal held that the question is not whether the other process dealt with the substance of the complaint in precisely the same way as the Tribunal would have.  In my view, this rationale also extends to the procedures used in the other proceeding. In this case, there is nothing in the information before me, other than the bare assertion that the procedure was different, which would lead to a conclusion that the procedure before the Senate Committee was substantively unfair”

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000