Meeting 9: Round Up (Including Bullying)

Facts

The student was a student at York University (named as the corporate respondent).  In 2011, he filed an application of racial discrimination against the University, a fellow student and two professors. He claims that while taking a course at the respondent university, the fellow student refused to let him participate in a group assignment and used a racial slur to describe him.  His application states that the two professors “failed to reasonably respond to his concerns and failed in their duties to organize group projects”. 

 An interim decision (McLennon v York University [2011 OHRTD 2128] )removed the two professors as personal respondents, using the Persaud factors[1].  The Tribunal concluded that “all of the allegations against the Personal Respondents are with respect to acts and /or omissions that occurred during the course of their employment and the University has agreed to assume responsibility for their conduct.” 

 The Tribunal then ordered the applicant to answer two questions within fourteen days:

  Is Ms. Lam a proper respondent to the Application?

1. Do the allegations against Ms. Lam raise an issue of equal treatment with respect to “goods, services and facilities” under the Code?

This hearing deals with these two questions, which went unanswered by the applicant.

Issues

1. Is Ms. Lam a proper respondent to the Application?
2. Do the allegations against Ms. Lam raise an issue of equal treatment with respect to “goods, services and facilities” under the Code?

Decision

1. No
2. No

Reasons

1. See 2
2. The Tribunal found that the fellow student was “not providing services to the applicant as contemplated by the Code.” And that, as such, “the Code does not apply to allegations of discrimination between fellow classmates” (para 8). The Tribunal based its ruling on the reasoning provided in Mehidi v George Brown College, 2010 HRTO 1486, and quoted the following passage, taken from paras 4-6:

 The Tribunal does not have a general power to evaluate relationships between individuals, or to inquire into all claims of unfairness or misbehavior. It hears applications that allege violations of the Code.

 Under s.1, every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

There are no facts suggesting that the personal respondent was responsible for the provision of any educational services to the applicant. The Tribunal has found in similar circumstances that the Code does not cover allegations of discrimination or harassment made against fellow classmates: see Theisen v. Ontario (Attorney General), 2009 HRTO 1781 (CanLII) and Tohidy v McKenzie, 2009 HRTO 2264 (CanLII). Although under the Code, harassment by co-workers or co-tenants can give rise to claims against those individuals, there is no specific provision covering claims of harassment against fellow classmates.

Facts

The applicant, Mr. Zhang, was a first year law student at the University of Western Ontario.  In 2007, the dean of the faculty of law began receiving complaints from his fellow students and professors about his classroom conduct and the contents of his Facebook.  In class, he asked questions involving fellow students and which were “unduly gruesome”, “macabre frightening” and “graphic”.  He wanted to know, for example, if he would be found guilty of murder or manslaughter if he purposefully placed an intoxicated fellow student in a position where she would choke to death on her own vomit.  He would also, in class, watch videos about terrorist and suicide bombers or read texts about these subjects.  His Facebook, where he called himself “Dr. Frank N. Stein”, contained troubling posts referring to going on killing sprees, eating babies, being “free to observe torture without criminal liability” and learning how to get away with murder in law school.

The Dean “exercising the powers authorized by the [University of Western Ontario] Code [of Student Conduct]” (13), temporarily suspended the student from campus pending a psychiatric evaluation. The psychiatrist found that the student met some of the criteria for schizoid personality, but “possessed little, if any, risk to the safety of University student and academic body” (14).  There were, however, “a few issues in his personality that merited follow-up” to eliminate the possibility that they would eventually “develop a higher risk for violet acts” (14) 

The student met with the Dean and Campus Security to discuss conditions under which he could return to the university.  The University made it clear that the student’s Facebook postings were “part of the behavior that gave rise to the suspension by the Dean” (15). An exchange of emails between the student and the dean referred to those conditions, the consequences of not meeting those conditions and the student’s willingness to comply.  Dean allowed the student to return to law school at the end of November.

 On March 3, 2008 another incident occurred.  The student posted (in English then in German) the following message and image on his Facebook (paras 19 and 20 in the decision). 

I have no tolerance for subhuman filth. Their days are numbered and they will be shown no mercy, because they are worth nothing.

Besides the posting is a photograph of a young soldier holding a machine gun.   

A frightened and shocked friend (and fellow-student) of Zhang reported the posting to the University when he discovered it on Facebook following an argument in which Zhang had accused him of being subhuman (i.e. of having sexual relations with people of colour).  On March 20^th, the dean expelled Zhang from law school. On Oct 1, 2008, he had a hearing before the University Discipline Appeal Committee[1] which denied his appeal in a 7-page single-spaced report and justified his expulsion based on powers authorized by the student code of conduct which prohibits “any assault, harassment, intimidation, threats or coercions” and “knowingly creating a condition that endangers the health, safety or well-being of a person”.

Zhang appealed to the Court from the decision of the University Discipline Appeal Committee with the following issues:

Issues

1)      Is the decision of the appeal committee in violation of the student’s constitutional right to free speech as guaranteed by the Canadian Charter of Rights and Freedoms, and section 6 of the Code of Student Conduct

2)      Did the University breach its duty of procedural fairness to Mr. Zhang with respect to the informal agreement into which he entered with the Dean?

3)      Did the University of Western Ontario breach its duty of procedural fairness to him with regard to his previous disciplinary record

4)      Does the Code of student conduct extend to off-campus activity

5)      Did the University fail to provide him with adequate disclosure in order to make the case against him

Decisions

1)      No

2)      No

3)      No

4)      Yes

5)      No

Reasons

1)       “We have no doubt whatever about the correctness of the decision of the appeal committee. This court is mindful of the historical importance of encouraging free speech on university campuses, and rigorously defending the right of students to debate difficult and often highly unpopular issues with passion. However, free speech has limits, including the making of threats and defamation of character. Uttering threats is proscribed by the Canadian Criminal Code. Defamatory libel is a serious tort. In the instant case, the pane found after hearing viva voce testimony from Mr. R that he felt personally threatened by the Facebook posting of Mr. Zhang. In so finding, the panel was right to conclude that the applicant was not protected by his professed right to free speech.” (35)

2)      “The complaints of procedural unfairness cannot be sustained. Clearly, Mr. Zhang’s previous disciplinary record was integral to the issue of whether Mr. Zhang had breached his agreement with the Dean. With respect to the agreement itself and the fact that it was merely confirmed by emails, the record establishes that Mr. Zhang fully understood the terms upon which he was permitted to return to law school and those terms were clear and unambiguous. As to his complaints with respect to disclose, Mr. Zhang was given a fair, effective and real opportunity to know the case against him: Mikkelsen v University of Saskatchewan, 2000 SKQB 45. We find that the procedures followed by the University throughout its dealings with Mr. Zhang were fair and reasonable. It could never e=be asserted that the procedures adopted were “manifestly unreasonable” (37)

3)      See #2

4)      “Regarding Mr. Zhang’s complaint that the University should not have the authority to consider his off-campus activities, it has been held in Pacheco v. Dalhousie University 2005 NSSC222that Universities have the right to exert control over the non-academic behavior of students because they have a duty to protect members of the University community. See also Re. B and W (1985), 52 OR (2d) 738 at 743 (H.C.J.). The Student Code of Conduct expressly states that it applies to off-campus conduct. The provision is neither vague nor overbroad. It places ascertainable limits on the University’s right to regulate off-campus conduct. In our view, the provisions contained in the Code are reasonable. /The Code states that it applies to off-campus conduct if that conduct has, or is reasonably seen to have, an adverse effect on the rights of the university members to “use and enjoy the University’s learning and working environments”. The applicant submits that the word “enjoy” is undefined, highly subjective and over-broad. We disagree. The word “enjoy” is easily understood and must include the prohibition of conduct that is threatening to the safety and security of a student, as directed against Mr. R. 

5)      See #2

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

• Yes
• No
• No
• 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).

Facts

This case involves two employees of the Bank of Montreal who worked at different branches and who did not know one another even though one was in a common law relationship with the other’s former husband. The latter admitted to her employer that she had accessed the former’s financial information over 174 times, contrary to policy. The snooping employee (Tsige) was put on a week’s leave and denied a bonus.  Unsatisfied, the employee whose privacy had been violated (Jones) went to court to sue Tsige for damages.   When the court dismissed her case on the grounds that Ontario does not recognize the tort of breach of privacy, Jones took her case to the Court of Appeal. 

Issue

Does Ontario law recognize a right to bring a civil action for damages for the invasion of personal privacy?

Decision

Yes

Reasoning

The Court of Appeal ruled that “in [its] view, it is appropriate for this court to confirm the existence of a right of action for intrusion upon seclusion.” (65)

In its Rationale, it says that case law supports the existence of such a cause of action, mentions the protections offered by the Charter for personal, territorial and informational privacy; outlines how advances in information technology have changed the way we store, retrieve and communicate information;  indicates a need to protect “readily accessible” personal information that is threatened by those advances in technology and finally, indicates the need to provide victims with legal remedies to violation of their privacy (66-69).

Features:

• The Key Features of this cause of action are, first, that the defendant’s conduct must be intentional, within which I would include reckless; second that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. ‘However, proof of harm to a recognized economic interest is not an element of the cause for action. I return below to the question of damages, but state here that I believe it important to emphasize that given the intangible nature of the interest protected, damages for instruction upon seclusion will ordinarily be measures by a modest conventional sum  (71)

Limitations

• “These element make it clear that recognizing this cause of action will not open the floodgates. A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy. Claims from individuals who are sensitive or unusually concerned about their privacy are excluded; it is only intrusions into matters such as one’s financials or health records, sexual practices and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.” (72)

 Damages

• Limited at $20,000.  “I would ne3ither exclude nor encourage awards of aggravated and punitive damages” (88)
• “The factors identified in the Manitoba Privacy Act, which, for convenience, I summarize again here, have also emerged from the decided cases and provide a useful guide to assist in determining where in the range the case falls;

1. The nature, incidence and occasion of the defendant’s wrongful act;
2. The effect of the wrong on the plaintiff’s health, welfare, social, business or financial position ;
3. Any relationship where domestic or otherwise, between the parties;
4. Any distress, annoyance or embarrassment suffered by the plaintiff arising from the wrong; and
5. The conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant.  (87)

In this case, Jones was awarded a mid-range ($10,000) amount in damages for Tsige’s intrusion on her seclusion. 

Facts

In the fall of 2010, Carleton Lifeline (a now decertified pro-life student group at Carleton University) requested permission to display its Genocide Awareness Project in an outdoor location of Carleton University. The University declined to grant permission on the grounds that the graphic images of the exhibit might be “offensive and disturbing” to some members of the community. It did, however, offer the group space in an indoor location. The students protested this decision but the University held firm.  Against the University’s wishes, Carleton Lifeline went ahead with their exhibit in the outdoor area. The University called the police, which attended the scene and arrested several students for trespass.  The charges were later dropped.  

Two members of the group subsequently filed a law suit against the University. In their statement of claim they “alleged breaches of ss. 2, 9, and 15 of the Charter of Rights and Freedoms ("Charter"); breach of university policies; breach of a fiduciary duty; damage to reputation; wrongful arrest; breach of contract; and claims in negligence both against CU and [...] individually named Defendants”.

The University has tried twice to have the lawsuit struck down.  In a 2011 ruling, the court “dismissed the Defendants' motion in respect of the wrongful arrest claim, struck the claim for breach of fiduciary duty without leave to amend, and struck the remaining claims with leave to amend within 30 days”.  

The students amended their remaining claims in accordance with the court’s orders, which the court, in its 2012 ruling, summarized as follows:

“The amended pleading details the relationship between CU, its employees and the Plaintiffs, as full-time fee paying students; the rights and obligations of the parties as described by reference to CU's internal policies, namely the Human Rights Policies and Procedures ("HRPP") and the Student Rights and Responsibilities Policy ("SRRP"); it quotes verbatim from the first and second paragraphs of the HRPP where CU acknowledges "a legal undertaking and responsibility to prevent discrimination"; the reasonable expectations of the Plaintiffs in relation to the policies; how CU fell short of its obligations; and the harm which flowed, including damage to reputation from CU's use of its authority to engage the police and other measures against the Plaintiffs.”(23)

In this decision, the court ruled on the University’s application to strike the amended statement of claim “with respect to the Charter claims, the negligence claims both as they relate to CU and the individual Defendants, and the stand alone claims pertaining to the university policies.”

Issues

1. Should the court strike the charter claim against CU?
2. Should the court strike the claim in negligence against CU?
3. Should the court strike the claim in negligence against individual employees of CU?

Decisions

1. Yes
2. No
3. Yes
4. The Court ruled that the Charter did not apply to Carleton University in this case. It explained that in order for the Charter to apply to a University activity, the latter has to be “ascribed to government, as in the case of implementation of a specific statutory scheme or government program.” (6). Unlike the University of Calgary, whose “governing structure involved significant government involvement” (14) lead the Court (in Prigden v University of Calgary, 2010) to find that it was, in fact, “delivering a specific government program in partnership with the government” (14), and was therefore subject to Charter claims,   Carleton University has a structure and governance which is “in no way prescribed by the government” (14).  Neither of the two acts cited by the plaintiffs as evidence of its link to the government (Carleton University Act 1952 and the Post-secondary Education Choice and Excellence) “establish government control or influence over CU in any manner, let alone with respect to allocation of space or venues on campus property.” (17). The Court added that even if Carleton was under the control or influence of government, the students’ claim had failed to plead “under any of the enumerated or analogous grounds of discrimination which have served as a basis for unequal treatment based on stereotypical attitude ascribed to the group rather than on the true worth and ability or circumstances of the individual” (18). This failure could have led the court to strike the claim (19).

Rationale

The Court determined that it would not strike the negligence claim.

First of all the students had not only coupled the allegations of negligence with allegations pertaining to the Human Rights Policies and Procedures (HRPP) and the Student Rights and Responsibilities Policy (SRRP) but had also reflected the necessary elements for a cause of action in negligence. In its deliberations, the court asked itself two questions:

• Does the amended pleading reflect the necessary elements for a cause of action in negligence?
• Does the amended pleading reflect the same concerns expressed in Aba-Alkhail v. University of Ottawa, 2010 ONSC 2385[1]?

The court found that the amended pleading passed the first test because it “pleads the facts that give rise to the duty of care”.  However, it did not reflect the same concerns expressed in the Aba-Alkhail case, where the pleadings were untenable because the only facts presented were that “the plaintiff was a student at the University and the University had the alleged policies". 

In this case, the students allege that the University “orchestrated their arrest, harassment and intimidate, and consequent damage to reputation” (30) contrary to its “pointedly recognized legal responsibility” outlined in the HRRP (31).  If the court presumes that the facts are true, then “prima facie duty of care is not foreclosed, and arguably foreseeable risk of harm arises where CU rejects its own recognized legal responsibility to students” (30). However, a trial would allow the University to present any “good policy reasons for refusing to recognize a duty in the circumstances”.  A trial would “carefully examine the context, including the policy implications of recognizing a duty of care where the university has pointedly recognized a legal responsibility, as it has in this case through the HRRP” (31).

• The Court determined that the individual employees named by the plaintiffs are exempt from the claim of negligence because the allegations against them “relate to decision made within their ostensible authority as CU employees.” (32).  It used a test outlined in ScotiaMcLeod Inc (1996) which indicates that personal liability arises only when
• The actions of the employees are themselves tortious (34)
• The actions of employees exhibit a separate identity or interest from that of the corporation, or employer, so as to make the act of the conduct complained of their own

McLeod also added that “in the absence of findings of fraud, deceit, dishonesty or want of authority on the part of employees or officers, the instances in which personal liability is found are rare”

In this case, the pleadings failed to show that employee’s actions were tortious or that they exhibited a separate identity or interest from the university. Furthermore, they raised no allegations of accused of fraud, deceit dishonesty or want of authority.

 
Facts

In March 2009, the University of Ottawa appointed an investigator to conduct a fact-finding process into an allegation of sexual harassment made by a resident, Dr. Forbes, against one of its doctors, Dr. Said. The Investigation reported that Dr. Forbes accused Dr. Said of asking her out to supper three times and that Dr. Said admitted to asking her out twice. Based on the investigator’s report, the dean then conducted his own investigation and recommended that the University terminate Dr. Said’s employment as Assistant Professor. University did not accept this recommendation; it instead placed Dr. Said on probation for one year and required him to receive training in harassment in the workplace.

The previous year (August 2008) had applied for promotion to associate professor in August 2008.  By the time the Clinical Teaching Personnel Committee (CTPC) met to consider his application, which had already been recommended by the Departmental Faculty Promotions Committee, the University had already investigated and disciplined the doctor.  The Dean, who was the chair of the CTPC, advised the committee that the Dr. Said had been found guilty of sexual harassment; that he was under probation by the university and under investigation by the College of Physician and Surgeons of Ontario (CPSO). The CTPC recommended that Dr. Said not be promoted to associate professor based solely on this information, which put him at odds with section 3 of the Standards & Procedures for Promotion of Clinical Faculty.

In January 2010, the Dean communicated the negative recommendation to Dr. Said and suggested that there could be no appeal. In response, Dr. Said’s counsel intervened securing an appeal for Dr. Said and raising a concern of “reasonable apprehension of bias”. It requested that the dean recuse himself from the process given his involvement in the sexual harassment investigation and his decision to terminate Dr. Said.

The dean did not recuse himself from the process. Following Dr. Said’s appeal to the CTPC, the dean appeared before the committee where he stated that “it was not the CTPC’s role to re-open the sexual harassment investigation” (16). The CTPC voted unanimously to uphold its previous negative recommendation based on the fact that “Dr. Said did not meet the professional standards expected as per the standards and procedures for promotion for clinical faculty in the Faculty of Medicine”. (17). While the dean invited the doctor to make further submissions before he submitted a recommendation to the Joint Committee,  the doctor, seeing the futility of the situation, chose not to avail himself of the opportunity. 

The Joint Committee met to discuss the Dean’s negative recommendation of Dr. Said in June 15, 2010 and denied the doctor his promotion based on his failure to meet professional standards expected for promotion according to Policy.

As a result of this decision, Dr. Said was unable to practice medicine in Ontario. He was forced to leave the country to find work.  He filed a complaint to the Supreme Court of Ontario.

Issue:

• Did the dean’s involvement in the process raise a reasonable apprehension of bias?

Decision

• Yes

Legal principle/test

The Court found that the University had a procedural duty of fairness in carrying out application processes, especially those where the stakes were so high. In this case, for example, a negative recommendation of Dr. Said would result in his inability to practice medicine in Ontario. It noted that the duty of fairness includes a requirement that the application process be free from bias or from the reasonable apprehension of bias.

It used “the test for reasonable apprehension of bias […] found in the dissent of de Grandpré J. in Committee for Justice and Liberty v. Canada (National Energy Board)⁸:

                    ... the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information.... [T]hat test is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly." (29)

The Court noted that a violation of the bias rule in this context would be found where a member of a tenure committee had a preconceived opinion of the candidate’s suitability “played a significant role in the making of the decisions” (31)

Reasoning

The Supreme Court provided the following rationale in paragraphs 32 and 33:

Order

34    An order will issue quashing the decision of the Joint Committee. The applicant shall have his costs of the application fixed at $15,000.

Facts

The Peel Law Association runs the A. Grenville and William Davis courthouse in Brampton, Ontario.  The Association has a policy restricting access to certain areas of the courthouse, including its lounge and library. In these areas, only lawyers are permitted access; members of the public and paralegals are a not allowed in. To enforce this policy, copies of which are posted on the doors to the lounge/library, a certain number of librarians are authorized to ask unknown persons for identification. These librarians regularly screen persons in the library and lounge who are unknown to them.

On the date in question, the personal respondent (an employee authorized to enforce the access policy) was walking through the lounge on her way to the robing room to investigate a report of an unknown person. She deviated from this task when she saw three black men sitting in the lounge. She approached the men and asked them, one at a time, to state and then prove their professional status.  A heated argument ensued, in which Mr. Pieters, who had been in the middle of a phone call, announced to his caller that he was being subjected to an act of racial profiling. When asked by the complainants why she was asking them for ID, she stated that paralegals were not allowed in the lounge; when asked why she was targeting only black people, she falsely responded that she knew that everyone else in the lounge were lawyers.  Four persons who were unknown to the personal respondent and who had witnessed the interaction with the complainants all produced ID in anticipation that they, too, might be asked for it. The respondent was so shaken by the angry confrontation with the respondents that she did not confirm that their ID was credible. The Tribunal found that her approach was “aggressive”, “blunt”, “demanding”, “abrupt”, “offensive” and “demanding” and that the overall experience of the respondents was “demeaning”.

Following this conversation, the librarian accompanied Mr. Pieters to the courtroom in order to retrieve one of his business cards. Later that day, following a meeting in which the personal respondent made an incident report to the PLA Board of Directors, additional signage was posted in the areas around the lounge and library alerting persons to the admissibility policy.

First decision

In an earlier decision,Pieters v. Peel Law Association [2010] HRTO 2411,the Tribunal used the following standards, taken from the Phipps v. Toronto Police Services Board [2009] to make a determination of racial discrimination:

• The prohibited ground or grounds of discrimination need not be the sole or major factor leading to the discriminatory conduct; it is sufficient if they are a factor;
• There is no need to establish an intention or motivation to discriminate; the focus of the enquiry is on the effect of the respondent’s actions on the complainant;
• The prohibited ground or grounds need not be the cause of the respondent’s discriminatory conduct; it is sufficient if they are a factor or operative element;
• There need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and
• Racial stereotyping will usually be the result of the subtle unconscious beliefs, biases and prejudices.

It also referred to the following words from the Nassiah v. Peel [2007] case:

 I find the racial profiling social science evidence is relevant because it speaks to, not just the initial decision to stop, detain, pursue an investigation, but also supports the general phenomenon that the scrutiny applied to the subsequent investigation is different, more heightened, more suspicious, if the suspect is Black. The stereotyping phenomenon is the same, whether it manifests itself in the discretion to stop/arrest/detain a person in part because they are Black, or whether it manifests itself in the form of greater suspicion, scrutiny, investigation in whole or part because a suspect is Black.

It used the following three-part schema to make a finding of prima facie discrimination

1. Differential treatment

The Tribunal found that the applicants had made a prima facie case of discrimination: the personal respondent singled out and aggressively questioned three black men and no other unknown persons.

2. Lack of a persuasive non-discriminatory reason

 The PLA's arguments in defense of the personal respondent were either incorrect (the respondent did speak to Mr. Pieters), or unsupported (the librarian never testified that she linked the respondents with the persons who had re-arranged furniture) or untenable (if the librarian was on the way to a different room to investigate another unknown persons report then why did she stop to speak to the three respondents)?  Furthermore, the explanation provided by the personal respondent (she knew everyone else in the room to be lawyers) was shown to be false (there were at least three other unknown persons in the lounge). The Tribunal stated that it was "the lack of a persuasive non-discriminatory reason for the questioning of the applicants provided either at the time of the incident or at the hearing leads me to conclude that the personal respondent's decision to question the applicants was indeed tainted by considerations of their race and colour". (90).

3. Manner in which the questioning took place

The Tribunal found that "the way in which the personal applicant approached the applicants and the blunt and demanding manner in which she asked her questions was not how she would approach and question persons that she imagined were lawyers and had a right to be in the lounge, and [it] was prepared to draw the inference that the way in which she interacted with the applicants was tainted by consideration of their race and colour". (91)

Pieters Law Assn appealed to the Ontario Supreme Court, bringing forth the following issues:

Issues

1. Did the Tribunal err by unreasonably determining that a prima facie case of discrimination had been established and/or by impermissibly reversing the onus?
2. Did the Tribunal unreasonably reject rational and credible explanation of non-discriminating reason for the conduct complained of?
3. Yes
4. Yes

Decisions

Legal Principles

At Paragraph 14, the court stated that “In order to prove a prima facie case of discrimination, there must be evidence of

a)      A distinction or differential treatment;

b)      Arbitrariness based on a prohibited ground;

c)      A disadvantage; and

d)      A causal nexus between the arbitrary distinction based on a prohibited ground and the disadvantage suffered.”

At Paragraph 15, the Court cited the following passage from the McGill University Health Centre (2007) where the Supreme Court distinguished between discrimination and distinction:

• “What flows from this is that there is a difference between discrimination and distinction. Not every distinction is discriminatory. It is not enough to impugn and employer’s conduct on the basis that what was done had a negative impact on an individual in a projected group. Such membership alone does not, without more, guarantee access to a human rights remedy. It is the link between that group membership and the arbitrariness of the disadvantage criterion or conduct, either on its face or in its impact, which triggers the possibility of a remedy. And it is the claimant who bears this threshold burden.

Reasons

1. The Court determined that: “In summary, the Tribunal erred in determining there was a prima facie case of discrimination. No evidence was adduced that was capable of supporting the finding of a distinction or differential treatment or that any such treatment was motivated by race or colour. Moreover, by failing to require the complainants to satisfy the nexus requirement, the Tribunal improperly reversed the burden of proof placing an impossible onus on the applicants to disprove discrimination. “ (47-48)

No differential treatment

The Court determined that the Tribunal’s conclusions were inconsistent with its finding of facts:

It found that the Tribunal made its finding of prima facie discrimination based on the following conclusions:

a)      The complainants were the only black men in the lounge

b)      The complainants were the only persons that the librarian questioned

c)      The librarian interrupted her planned trip to the robing room to question the complainants.

d)      The librarian confronted the complainants in “an aggressive and demanding manner”.

However, it also found that the Tribunal’s findings of fact were inconsistent with these conclusions[1]

a)      The first conclusion was contracted because there was clear evidence explaining why the librarian approached the complainants; they were the first persons she saw when entering the room.  The Court said, at paragraph 24, that “The Vice-Chair appears to have ignored the fact of the complainants’ location when holding that “the applicants and Mr. Waldron were the only Black men and the only persons the personal respondent chose to question” as a factor in establishing a prima facie case of discrimination by Ms. Firth”  

b)      The second was contradicted by the Vice-Chair’s determination that the librarian’s explanation for speaking only to the complainants was credible.  The Court pointed out, at para 26, that “The fact that her overall credibility was undermined by her explanation that she knew everyone else in the room to be lawyers which was found not to be credible, does not change the finding that her focus was on Mr. Pieters at the time, and that this focus was a credible explanation for the fact that she did not check the identification of other persons in the lounge.

c)      The third conclusion was contradicted by the Vice Chair’s findings that the librarian’s actions were routine; they were governed by policy and in accordance with her daily practice. At paragraph 27, the Court said that “In finding evidence of discrimination, the Vice-Chair also relied on the fact that Ms. Firth had changed her planned trip to the robing room in order to check identification in the lounge. However, the Tribunal accepted the evidence that Ms. Firth regularly checked both areas, as well as the library, and that her conduct was not irregular.” 

d)      The fourth conclusion was contradicted by the Vice-Chair’s finding that the librarian often confronted patrons (racialized and non-racialized) in an aggressive and demanding manner. At paragraph 33, the Court said that in the circumstances, “the fact that the incident was contentious does not establish differential treatment, particularly where there were other situations when non-racialized persons had been offended when asked for identification by Ms. Firth”

Given the contradiction between findings of fact and conclusions of discrimination, the court determined that the Tribunal had erred in reversing the onus of proof to the respondents. In paragraphs 34-38, the Court explains its determination:

“In the circumstances, I agree with the applicants that the Tribunal had no evidentiary basis upon which to conclude that Ms. Firth subjected the complainants to differential treatment.  Moreover, the Vice-Chair’s conclusion in para. 84. that “these facts are sufficient to require the respondent to provide an explanation for their actions to support their position that the decision to question the applicants was not tainted by race or colour”, in effect reverse the onus of proof. The undisputed evidence is that Ms. Firth’s duties included asking for identification to confirm the admissibility of persons in the lounge and library. Her position at the hearing was that she acted on this occasion in the context of those duties. By improperly reversing the burden of proof, the Tribunal place her in the difficult position of trying to prove a negative, namely , that her conduct in the performance of her routine duties was not motivated by race and colour. With respect, the Tribunal erred in doing so.

Failure to create a nexus between distinction and race and improper reliance on racial profiling cases

e)      Finally, the court determined that the Tribunal had no evidence upon which to establish a nexus between the treatment of the complainants and their race[2]. Instead, Vice-Chair improperly used an analogy to racial profiling to infer such a nexus[3].  Moreover, even within racial profiling cases, it is insufficient to infer that every racialized person who has an unpleasant interaction with a police officer is a victim of racial profiling; it is always necessary to establish a nexus [4]. The Court determined that “the Vice-Chair appears to have assumed the nexus with the respondents’ race and colour from his finding of differential treatment” (45) “This reversed the onus by, in effect, removing the requirement for the complainants to establish more than a mere distinction in treatment. There was no evidence to demonstrate the required nexus in this case.  Speculation or inferential statements are simply not enough. “ (45-46)

1. The Court found that the Tribunal had unreasonably rejected rational and credible explanation of non-discriminating reason for the conduct complained of. This is because it drew its (erroneous) conclusions of racial discrimination based on its assessment of the librarians’ credibility while failing to resolve two credibility issues involving the contradictory information presented about: 1) the conduct of Mr. Pieters during the encounter with the librarian and 2) the knowledge of the lawyers-only policy by the complainants prior to the encounter with the librarian. This is what the Court determined in paragraphs 53-54: 

“It is true that while the Tribunal has to make finding of fact and credibility, these cannot be reduced to an exact science. Nevertheless, given how the Vice-Chair rested his conclusion regarding Ms. Firth’s lack of credibility, particularly when compared with Mr. Peiters’ testimony, it was necessary for him to resolve these issues. As noted previously, the Tribunal must be accorded the highest degree of deference. However, the particular circumstances of this case, the central issues of credibility had to be examined in light of all the testimony. In our respectful view, the adjudicator erred in not doing so 

Order

The application was allowed, the Tribunal’s decision was quashed with no chance of appeal.  The respondents were to pay $20, 000 to the applicants.

Facts

This case deals with the application of an assistant professor in the Queen’s Faculty of Medicine who claimed that he was denied promotion on the grounds of race.  His evidence included several reports of systemic racism at Queen’s University (the PAC report, the Henry Report, the SEEC response to the Henry Report). While he had no direct evidence of racism, he submitted that it was possible to infer that irregularities in his promotions process and in his final evaluation were driven by racism.

The applicant listed the following as irregularities in the promotions process included:

•  The committee disregarded his external letters of recommendation, which, according to the applicant were very positive
• Contrary to policy requiring that letters of recommendation be written by persons holding a rank superior to the applicant, the committee requested a letter from the applicant’s department head, who held the same rank as himself.
• The committee’s decision not to promote was based in part on false information; the department head informed them that the applicant had 50% time for research whereas he only had a fraction of that time.

Issues

1. Does an applicant need to provide direct evidence of racial discrimination?
2. Does the evidence of systemic racism (the three reports) support an inference that the applicant experienced racial discrimination in relation to the promotions process or the denial of a promotion to the rank of associate professor?
3.  Was the committee’s assessment of the external letters of recommendation based on the applicant’s race?
4. No.  The Tribunal stated at paragraph 86 that it was not unusual for applicants not to have direct evidence of racial discrimination and that Tribunals had to draw inferences based on the “application of well-established principles relating to the use of circumstantial evidence.”These principles were quoted at paragraph 87.”
5. No.  While the Tribunal “placed reliance” on the three reports of systemic discrimination at Queen’s University, i.e. the PAC (1991), The Henry Report (2004) and the SEEC Response to the Henry Report (2006), it ultimately found that this evidence alone was insufficient to make a determination of discrimination against Queen’s.   Rather, the onus was on the applicant to show a link between the systemic racism and any alleged experience of racism[1].  The Tribunal found that whereas the University provided convincing evidence that the committee’s decision not to promote the applicant was based on “legitimate and non-discriminatory concern about his record of research and scholarship and his teaching” (223), the applicant failed to provide any counter evidence that the University promoted non-racialized candidates in the same position as the applicant (clinician-scholar) and with a similar record of research, scholarship and teaching. Moreover, the Tribunal found that the applicant’s “culture of whiteness” argument [2] was weakened in this case by two mitigating factors/facts: 1) two of the 9 members of the applicant’s promotion’s committee were racialized persons [3] and 2) two of the 10 clinician/educators who were promoted solely on the force of their teaching[4] were racialized professors.  In the absence of direct evidence of racial discrimination, which the applicant failed to provide, these facts made it impossible for the tribunal to infer that the applicant was a victim of the Culture of Whiteness at Queen’s.
6. No. The Tribunal determined that the committee duly considered the external letters. Moreover, in the Tribunal’s assessment, the letters were ambivalent, not glowing as the applicant had maintained.  While the referees offered very high praise for the applicant’s research accomplishments that predated his position at Queen’s, they offered only lukewarm praise for his work at Queen’s.  Furthermore, the Tribunal determined that there was no evidence of racial discrimination in the committee’s correct interpretation of the external letters.

Decisions

What happens when the employer treats two instructors differently based on the same negative evaluation?

Facts:

In 2008, the Ministry of Municipal Affairs and Housing contracted the Consulting Matrix Inc. to provide Indigenous relations training (based on a training session provided for another Ministry) for its staff in Northern Ontario. The theme of the training included “the Indigenous peoples, culture and history in Ontario, an understanding of treaty rights, claims and assertions and Indigenous relations; and an introduction to engagement with Indigenous peoples” (19).  The Matrix provided the Ministry with two instructors: an Indigenous woman (to give an Indigenous perspective) and a non-Indigenous male (to give the crown perspective).  There was no contractual relationship between the Matrix’s instructors and the Ministry.

After the first training session, the regional director of the northwestern services office of the MMAH (who had moderated a training session with the applicant in 2007) received negative oral feedback from three staff members about both presenters. The director called the consulting firm to voice his concerns about the two instructors and to request the removal of the Indigenous instructor. Upon the request of Consulting Matrix, the decision was delayed until the parties had the opportunity to assess the written evaluations. The latter assessed the overall training session given by both presenters, and was very poor; only 33.33% of the attendees found the training to be “very good” (whereas the government training standard was 85%).  There were negative comments about the attitudes, knowledge and presentation styles of both the Indigenous and the non-Indigenoustrainers; however there were more negative comments about the Indigenous trainer. Some of those negative comments about the Indigenous presenter included assertions that she was “being blitzed” “spacey”, “disconnected” and involved with “drug abuse”.  Others commented on her defensiveness/confrontational attitude at the end of the training session when she reacted to an offensive comment made by the other speaker about the duty to engage in meaningful consultation with the Indigenous community (he spoke of the importance of “covering [one’s] ass” by, at minimum, making a phone call.

The Ministry required Matrix to coach the non-Indigenous instructor and to replace the Indigenous instructor.  Matrix complied but was unhappy with the Ministry’s decision. It would have chosen to coach both instructors. The Indigenous instructor was replaced by another Indigenous instructor, who was very well received by the staff.  The non-Indigenousinstructor was coached, but continued to receive poor evaluations for the remaining training sessions.

Issue

• Is an inference of discrimination more probable than not based on all of the evidence?
• Yes

Decision

Reasons

-          “Upon reviewing all of the evidence before me, I find that it is more probable than not that the applicant’s race was a factor at play in the Ministry’s differential response between her and A.B. I make this finding for the following reasons:

1. Both trainers had performance problems at the training and yet they were treated differently. On its face, one of the difference between the trainers is their race;
2. The distinction made by the Ministry to justify the differential treatment is illusory. There is no meaningful difference between a presentation that is poor because it is delivered in a monotone way and a presentation that is poor because the presenter is “spacey”. Both traits could be perceived as disconnectedness. The particular criticism made about the applicant’s presentation style does not take into [consideration] cultural differences that may exist in the communication styles of the two presenters;
3. The applicant was criticized for being opinionated or attitudinal and yet she was retained as an Indigenous person to provide training from an Indigenous perspective. One might expect an Indigenous person to have opinions about the subject-matter of this particular training;
4. A racial stereotype was used by Ministry staff to describe the applicant’s demeanour. It was unclear to me how a link was made between the applicant being disconnected when presenting the slide material and allegations of drug abuse
5. The applicant was subject to greater scrutiny and a more punitive response than A.B. who continued to perform poorly throughout the training. A.B. was seemingly immune from consequences for his performance;
6. The applicant was blamed for the low overall rating of the training even though it applied to both presenters and the training as a whole. The negative comments on the individual assessment were also predominately attributed to the applicant even where she was not identified;
7. The applicant may have had bona fide reason for being defensive at the end of the training in light of the comment made by A.B, and yet she was given no opportunity to explain her performance prior to the decision to direct the termination of her contract.

 Order

The Tribunal ordered the Ministry to pay the applicant $20,000 in damages

Facts

The applicant (Suzanne Adams) alleges that the personal respondent (Amanda Brisson) “yelled, threatened and attempted to bully” employees (including Adams) into doing work outside their assigned duties. Soon after Adams advised the President of the Board of Directors that she would be bringing forward a harassment claim under Bill 168, she was terminated.  She has an allegedly spotless employment record.

She brought her claim of reprisal (wrongful dismissal) forward to the Ontario Human Rights Tribunal.  At no time in her Application does she claim that the harassment she faced at Big Brother and Big Sisters of Cornwall and District amounted to a code-related ground.

Issue

-          Is it plain and obvious that this Application is outside the jurisdiction of the Tribunal?

Decision

-          Yes

Reasons

To determine whether it had jurisdiction to hear this case, the Tribunal asked itself three questions:

1. Does the applicant claim to have experienced reprisal for claiming or enforcing a right under the Code?
2. Does the applicant claim to have experienced reprisal for instituting or participating in proceedings under the Code?  
3. Does the applicant claim to have experienced reprisal for refusing to infringe the right of another person under the Code

These were the answers to those questions:

1. “Given that the applicant has not asserted that the conduct at issue was related to a ground under the Code, her attempts to remedy this conduct cannot be said to be either “claiming or enforcing  a right under the code” (para 8)
2. “With respect to the second criteria, it is clear that the applicant was threatening  to (and eventually did) institute proceedings under the OHSA, but this is entirely distinct from instituting proceedings under the Code” (para 8)
3. “She has not suggested that her job was terminated because she had refused to infringe the right to another person and, in any event this provision relates to a right under the Code.”  (para 8)