HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
David Noble
Complainant
-and-
Ontario Human Rights Commission
-and-
York University
Respondent
INTERIM DECISION
Adjudicator: Michael Gottheil
Indexed as: Noble v. York University
Appearances
David Noble, complainant ) On His Own Behalf
Ontario Human Rights Commission ) Anthony Griffin, Counsel
York University, )
Lorna Marsden, Patricia Bradshaw, ) William McDowell, Counsel
Robert Drummond, respondents; )
Mamdouh Shoukri, proposed respondent )
INTRODUCTION
1This is a Complaint brought under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”), alleging discrimination in employment and services on the grounds of creed and reprisal. The Complaint was filed on January 16, 2006, and was referred to the Tribunal by the Ontario Human Rights Commission (the “Commission”) on June 12, 2008, under the “old Part IV” of the Code. A hearing of the merits of the Complaint is scheduled to proceed on September 14, 15, 16, 22, 23 and 24, 2009.
2This Interim Decision deals with a number of preliminary and procedural issues raised by the parties. Oral submissions on these issues were presented at a hearing held on May 22, 2009.
BACKGROUND
3The complainant is a full-time professor at York University (“York”). In September 2004, he began a series of efforts challenging York’s policy (since repealed) of not scheduling classes on Jewish high holidays (the “policy”). The complainant asserted that York’s policy was discriminatory, as it created distinctions in employment and the provision of educational services on the basis of creed, giving preference to individuals who observed the tenets of a particular faith over others.
4On September 12, 2004, the complainant sent a letter to Lorna Marsden, then President of York, raising his concerns and requesting that York change its policy. On October 29, 2004, he sent a further letter to Patricia Bradshaw, Chair of the York Senate, making a similar request. In subsequent years, the complainant sought to press the issue by alternatively proposing to hold classes on the Jewish high holidays, or cancelling classes on the high holidays of other religions.
5York refused to change its policy, and in January 2006, the complainant filed a Complaint with the Commission. In addition to claiming the policy was in violation of the Code, the Complaint alleged that York had engaged in a campaign of reprisals against the complainant because of his efforts to enforce rights under the Code.
6In the fall of 2008, York did formally amend its policy, and no longer cancels all classes on the Jewish high holidays.
ISSUES AND DECISION
Preliminary Issues resolved Prior to or at the Hearing
7At the time the Complaint was referred to the Tribunal, York advised that the York Senate was in the process of considering whether to change the policy. The Tribunal ruled that it would adjourn these proceedings pending the outcome of those considerations. In December 2008, York advised that the policy had been changed, and counsel for York provided a letter of confirmation to the Commission and the complainant. As a result, the parties agreed that the portion of the Complaint alleging discrimination on the ground of creed, seeking a change to York’s policy, was now moot. The remaining portion of the Complaint, alleging reprisal, remains and will continue to hearing.
8In addition, a number of disputes arose between the complainant and York regarding disclosure of documents. The parties were able to resolve these matters and, therefore, the Tribunal need not address this issue.
Issues Remaining in Dispute
9The following preliminary issues remain in dispute:
a. A request by the respondents to have the personal respondents Marsden, Bradshaw and Drummond removed as personal respondents;
b. A request by the complainant to have Mamdouh Shoukri added as a personal respondent;
c. A request by the respondents to strike certain portions of the Commission’s and the complainant’s pleadings that relate to particular events in 2004, on the basis that those matters were dealt with in a previous grievance arbitration proceeding;
d. A request by the respondents to strike certain facts and allegations in the complainant’s pleadings as they are irrelevant to the present proceeding.
a. Request to Remove the Personal Respondents
10The question of whether an individual is properly named as a personal respondent in a human rights proceeding has been considered in a number of recent decisions of the Tribunal. (See Sigrist and Carson v. London District Catholic School Board et al., 2008 HRTO 14; Persaud v. Toronto District School Board, 2008 HRTO 31; Winter v. Arnprior (Town) 2009 HRTO 713).
11In Sigrist the Tribunal set out the general approach to this issue, stating as follows at para. 42:
The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the [old] Code, a corporation is deemed to be liable for “any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent”. Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.
12In Persaud, the Tribunal expanded on these principles as follows, at para. 5:
Applying these principles to the Tribunal’s power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:
Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who [is] sought to be removed?
Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?
Would any prejudice be caused to any party as a result of removing the personal respondent?
In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.
13In the present case, York has provided a letter from counsel confirming that it will take responsibility for any infringement of the complainant’s rights resulting from the actions of the personal respondents. Counsel also confirms that he undertakes to call each personal respondent as a witness, thereby permitting the Commission and the complainant an opportunity to cross-examine each individual. It appears that in the circumstances, there is no issue with respect to factors 1-3 and 5 set out in Persaud.
14The Commission supports York’s request, while the complainant opposes it. In its submissions, the Commission did note the peculiar circumstances of this case, in that the only outstanding allegation is reprisal. A finding of reprisal under the Code requires a finding that an individual intended to reprise against the complainant. The Commission and respondents acknowledge that, generally, it would be odd to characterize an intentional act of reprisal in violation of section 8 as an action taken in the “normal” course of one’s employment.
15Notwithstanding, I find it appropriate to order that Marsden, Bradshaw and Drummond be removed as respondents in these proceedings. York has indicated that it assumes full responsibility for any of the personal respondents’ actions as alleged. There is no question that York is capable of making good on any remedy which may be awarded if a violation is found. Neither the Commission nor the complainant has shown any prejudice to their ability to fully present the case.
16Beyond this, I note the very essence of the complainant’s allegation is that York, as an institution, sought to punish him because of his campaign to change the policy. This is not a situation where it is alleged that a rogue employee engaged in discriminatory conduct or harassment without the knowledge or consent of the employer. To the contrary, the allegations here are that York, at its highest institutional levels, sought to reprise against the complainant. In this context, and because there is nothing before me which would suggest the removal of the personal respondents would in any way impede a full and fair hearing of the merits of the claim, I find that it is appropriate to grant the respondent’s request.
b. Adding Mamdouh Shoukri as a Personal Respondent
17Dr. Mamdouh Shoukri is the current President of York University. The complainant alleges that in the fall of 2008 he sent a letter to President Shoukri regarding the policy, and his intention to hold classes on the upcoming Jewish high holidays. President Shoukri forwarded the complainant’s correspondence to Dean Drummond for response. The complainant claims that President Shoukri’s actions constituted a reprisal since he knew, or ought to have known, that Dean Drummond was part of the alleged campaign to punish him (the complainant) because of his efforts to have York change its policy.
18Without commenting on the merits of the allegations, for the same reasons noted above relating to the removal of Marsden, Bradshaw and Drummond, I find that it is not appropriate to add Mamdouh Shoukri as a personal respondent. I note that, at the hearing on May 22, 2009, counsel for York undertook to call Dr. Shoukri as a witness. I find that the complainant would suffer no prejudice in fully advancing his claim of reprisal by not adding Dr. Shoukri as a personal respondent.
c. Striking of Allegations related to certain events in 2004
19The respondents seek an order striking the following paragraphs of the Commission hearing brief:
On November 18, 2004, Noble distributed a hand-out entitled “The York University Foundation: The Tail that Wags the Dog”.
On November 19, 2004, The Canadian Jewish Congress Ontario Region and The United Jewish Appeal issued a press release, suggesting that Noble’s actions constituted anti-Semitism. The same day, York issued a joint press release (with The York University Foundation, Hillel, and Solidarity for Palestinian Human Rights), denouncing the material distributed by Noble as highly offensive bigotry.
On November 21, 2004, the Canadian Jewish News ran a story on the topic. The story also noted that Noble was trying to stop York from cancelling classes on Rosh Hashanah, Yom Kippur and Good Friday. The article noted that the president of the Canadian Jewish Congress supported York’s practice. At this point, Noble’s letters to Marsden and Bradshaw had not been made public.
As a result of the joint press release, Noble filed a grievance, alleging that York had breached Article 10.01 of the Collective Agreement. The grievance proceeded to arbitration, and by decision dated November 26, 2007, the arbitrator found that the issuance of the joint press release was a breach of Article 10.01 by York. York was ordered to remove the media release from its website, and to pay damages to Noble.
20The respondents submit that the facts and allegations contained in these paragraphs were fully litigated before Arbitrator Russell Goodfellow in a grievance arbitration proceeding. The respondents argue, on the basis of section 45.1 of the Code, and the doctrine of abuse of process, the Tribunal should strike these allegations.
21The Commission and the complainant oppose the request. They argue that the question of whether York breached the Code was not before the Arbitrator, and the Arbitrator’s decision did not determine whether York’s actions in November 2004, in response to the leaflet, were part of the alleged campaign of reprisal against the complainant for seeking to change York’s policy. The Commission and the complainant argue that there is no attempt to re-litigate, and no abuse of process.
22For the reasons that follow, I am not prepared to strike paragraphs 3-6 of the Commission’s hearing brief. However, I find that it is appropriate to provide direction on the scope of the evidence that will be permitted in relation to the alleged facts.
23As noted in the Commission’s hearing brief, on November 18, 2004, the complainant circulated a leaflet entitled “The York University Foundation: The Tail that Wags the Dog.” The leaflet raised questions about the York University Foundation, a fundraising arm of the University, and whether because of its composition, and what the complainant alleged to be a pro-Israeli bias, policies of York also reflected a particular bias. York responded with a media release condemning the leaflet. In addition, other organizations condemned the leaflet, and the complainant, for the assertions raised in the leaflet, and its tone.
24The complainant filed a grievance under the terms of the collective agreement in force between the York University Faculty Association and the University. The grievance stated, in part:
David Noble hereby grieves, with the formal support of the York University Faculty Association ("YUFA"), that the Administration has discriminated against him on the basis of his political beliefs and/or his non-conforming personal or social behavior, contrary to Article 3.01 of the Collective Agreement and has violated Article 10.01 of the Collective Agreement by failing to protect and promote academic freedom and, in particular, his freedom to examine, question, teach and learn and his freedom to pursue without interference or reprisal his research ... and to criticize the University or society at large and to be free from institutional censorship.…
The grievance sought, in part, the following remedy:
such further and other relief as may be necessary to provide appropriate redress for the grievor and to reaffirm the Administration's commitment to a culture of "mutual respect on the York University campus and its commitment to academic freedom and its commitment to the creation of a community where individuals can criticize the University or society at large without fear of interference or reprisal from the Administration.
25Article 3.01 is the “no discrimination” clause, and reads as follows:
The parties agree that there shall be no discrimination, harassment, interference, restriction, or coercion exercised or practiced with respect to any employee in any matter by reason of race, creed, colour, age, sex, marital status, family relationship, number of dependents, nationality, ancestry, place of origin, place of residence, political or religious affiliation or beliefs, sexual preference or orientation, nonconforming personal or social behaviour, disability, nor by reason of membership or non-membership in the Association, nor previous or impending exclusion from the bargaining unit, nor lawful activity or lack of activity in the Association. "Non-conforming personal or social behaviour" shall not include failure to conform to the terms of this Agreement or to carry out the duties and responsibilities stipulated herein.
26The grievance was referred to arbitration. After hearing 15 days of evidence and argument, the Arbitrator concluded that York had breached the complainant’s academic freedom, in violation of Article 10.01 of the collective agreement. The Arbitrator decided, however, that in the circumstances, it was not necessary to determine whether Article 3.01, the anti-discrimination provision, had been violated by York. The Arbitrator noted that in the arbitration, the union had not focused on the claim that Article 3.01 had been infringed. In any event, the Arbitrator ruled that even if he had found a violation of that Article, he would not have awarded any additional remedy.
27York advances several arguments in support of its position that paragraphs 3-6 of the Commission’s hearing brief should be struck, and that the Commission and complainant should not be entitled to rely upon the facts contained therein, as part of the allegation that York reprised against the complainant for seeking to change the holiday policy. York argues that the facts were fully litigated in the arbitration, and a remedy was awarded. It argues that the wording of the grievance, and the terms of Article 3.01, (in particular the language prohibiting discrimination, harassment, threats, coercion or restriction) clearly demonstrate that the issue of reprisal was before the Arbitrator. York argues that even if it is found that the issue of reprisal for the violation of a Code right was not raised in the grievance, it could have been, and on that basis, the Tribunal should strike the allegations.
28Section 45.1 of the Code provides:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
29In Campbell v. Toronto District School Board, 2008 HRTO 62, the Tribunal discussed the principles underlying section 45.1 and the doctrine of abuse of process.
29Before turning to an examination of the legal principles, it is useful to set out some guiding principles that will inform the following discussion. First, the Code is an important public policy statute, protecting rights which are quasi-constitutional in nature. Those rights would be meaningless without access to a mechanism for their enforcement – the right to pursue a complaint under the Code should therefore not be denied absent a compelling reason. Second, responsibility for the administration of justice and the enforcement of legal rights in Ontario is spread across a panoply of courts and tribunals. Some of these courts and tribunals have overlapping jurisdiction, and many have considerable expertise in particular areas of law. The Tribunal must undertake its own work with an appreciation of its role in the broader scheme of administrative justice, providing leadership in the interpretation and application of the Code while respecting the legitimacy of decision-making by other tribunals within their own mandates.
30Further, both public and private interests require finality in litigation. As expressed by the Supreme Court of Canada in Danyluk:
The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular, is only entitled to one bite at the cherry… An issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided. (para. 18).
30While a high value should be placed on principles of finality, judicial economy and the recognition that other adjudicative bodies have the responsibility and jurisdiction to interpret and apply the Code, ultimately the question will turn on whether the “substance of the application” was appropriately dealt with in “another proceeding.” I agree completely with the reasoning and result in Campbell, and reject the Commission and complainant’s argument that simply because the grievance did not refer to, or allege a violation of the Code, section 45.1 has no application.
31Likewise, I reject the argument that because the Arbitrator did not determine whether discrimination occurred, then section 45.1 does not apply. Along with the other considerations set out in Campbell and subsequent Tribunal decisions, the question in determining whether to exercise a discretion under section 45.1 is not whether an applicant received the result and remedy they were seeking in the other proceeding, but whether there was a full and fair opportunity to have the human rights claim considered, before an adjudicator who had the jurisdiction to interpret and apply the Code. There is no question that the Arbitrator had that jurisdiction.
32The problem for the respondents in this case is that the “substance” of the Complaint now before the Tribunal – that York engaged in a campaign of reprisal because the complainant was attempting to have York change its policy – was not before the Arbitrator. The grievance was about a different matter – that York took actions against the complainant because he issued and circulated a leaflet. The issue of reprisal, to the extent that it formed part of the grievance, was in relation to the claim that York was attempting to limit or punish the complainant for exercising his academic freedom and discriminating against him because of nonconforming personal or social behaviour, not his Code rights. Indeed, there was never an assertion that issuing and distributing the leaflet was an exercise of a right under the Code.
33The Commission and complainant’s reliance on the facts surrounding the issuance of the leaflet and York’s response is to demonstrate an alleged pattern of reprisal. It is part of a continuum of events spanning a number of years. My determination might be different if the facts alleged in the Complaint were solely about the leaflet and York’s response, and the complainant was simply seeking additional remedies for the same conduct, under the rubric of the Code.
34In this regard, I acknowledge York’s position that there may be situations where the Tribunal should (and would) exercise its discretion under section 45.1 to dismiss all or part of an application, where the claim being made in an application before the Tribunal could have been raised in “another proceeding.” I need not canvass all of the circumstances and considerations that might apply in such a case. In interpreting section 45.1, due regard would have to be had to the significance of previous statutory language, where the Commission had the discretion to refuse to consider a complaint where it determined that the matter could or should have been more appropriately dealt with under another Act. The current Code does not provide the Tribunal with that specific discretion.
35However, section 45.1 does provide the Tribunal a broad discretion to prevent re-litigation of issues, as does the doctrine of abuse of process. As the Tribunal said in Campbell, the principles underlying section 45.1 may incorporate the principles underlying the doctrine of abuse of process. At paragraphs 35-39, the Tribunal explained the doctrine:
35The term “abuse of process” has been applied to a variety of circumstances in which a court or a tribunal has found it unfair to permit proceedings to continue. It may bring proceedings to an end where there has been inordinate delay (see Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44), where in a criminal context there has been unfair or oppressive treatment of an accused (R. v. Conway, 1989 CanLii 66 (S.C.C.)), or based on the cumulative effect of breaches of fairness and delay (Anonuevo v. General Motors of Canada Ltd. (No. 3) (1998), 1998 CanLII 29850 (ON HRT), 32 C.H.R.R. D/322 (Ont.Bd.Inq.)).
36It can also apply to an attempt to re-litigate a claim, as described by the Supreme Court of Canada in CUPE:
… Canadian courts have applied the doctrine of abuse of process to preclude re-litigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice. (para.37).
37The Court went on to state that the “policy grounds supporting abuse of process by relitigation are the same as the essential policy grounds supporting issue estoppel”, referring to the following excerpt from a legal text:
The two policy grounds, namely, that there be an end to litigation and that no one should be twice vexed by the same cause, have been cited as policies in the application of abuse of process by relitigation. Other policy grounds have also been cited, namely, to preserve the courts' and the litigants' resources, to uphold the integrity of the legal system in order to avoid inconsistent results, and to protect the principle of finality so crucial to the proper administration of justice. [Donald J. Lange, The Doctrine of Res Judicata in Canada, Markham, Ontario: Butterworths, 2000 (at pp. 347-48), cited in CUPE at para.38].
38The Supreme Court emphasized that the focus of the abuse of process doctrine is less on the private interests of the parties, and more on the integrity of the adjudicative process. Therefore, the motive of the party seeking to re-litigate an issue is not a decisive factor in the application of the doctrine (see CUPE, paras. 43-46). This point is worth noting here. There may be various reasons why an individual may seek to conduct litigation of the same or similar issues in different forums, or to challenge a prior adjudicative finding through another proceeding. In the case before me, it is apparent that the complainant’s mother is deeply concerned for her son’s education and life opportunities. Presented with the challenges of her son’s disability, it is perhaps no surprise that she would seek relief wherever she may find an opportunity. To call her endeavour an “abuse of process” is not to conclude that she has acted oppressively or abusively, or that she is driven by malice or bad faith. As I have indicated, abuse of process is a legal doctrine whose focus is the integrity and coherence of the adjudicative process.
39In Snow, the Tribunal canvassed cases in which the Supreme Court’s reasoning in the CUPE decision was applied, referring in particular to the decision in Cremasco, and stating:
In Cremasco, Tribunal, supra the Tribunal asked itself the question: "Would it be fair to proceed?" The Tribunal also stated that the public perceives the human rights process as an integral part of the justice system. Therefore, if the reputation of the larger system is to be preserved, one must consider whether, in the view of reasonable and informed but ordinary people, it would be fair to proceed with the complaint, where the issues before the Tribunal have already been heard and determined in a different forum. This decision was upheld by the Federal Court Trial Division: Cremasco, FCTD, supra and the Federal Court of Appeal: Cremasco, FCA, supra. (para.56).
36Ultimately, I do not find that it would be an abuse of process to permit the Commission and complainant to rely upon the facts set out in the Commission’s hearing brief, as part of a continuum of events in support of the claim the complainant suffered reprisal for attempting to exercise his rights under the Code. However, I would make two observations. First, my ruling does not mean the Commission and the complainant will be permitted to re-litigate the entire matter which was before Arbitrator Goodfellow in order to embarrass or vex the respondent and others. The factual allegations set out in the Commission’s hearing brief are focused and specific. The Commission and the complainant will be entitled to call evidence, subject to my ruling set out below, to establish the facts alleged.
37Second, it appears that most (if not all) of the facts asserted in paragraphs 3-6 of the Commission’s hearing brief are not in dispute. I would encourage the parties to discuss the possibility of an agreed statement of facts. Absent any agreement, the decision of Arbitrator Goodfellow stands as having determined a number of factual allegations. The Tribunal will not allow any party to re-litigate any factual findings made by Arbitrator Goodfellow. To do so, as was made clear by the Supreme Court in CUPE, would be an abuse of process. (See also Deesasan v. Toronto Police Services Board, 2009 HRTO 687.
d. Striking of a portion of the Complainant’s Supplementary Hearing Brief
38The complainant filed a supplementary hearing brief. One of the allegations set out in the hearing brief related to certain litigation undertaken by York in the Ontario Superior Court. The respondents request that these allegations be struck as they are irrelevant to the Complaint before the Tribunal. The Commission supports the respondents’ request.
39The complainant argued that the allegations about the current litigation are in response to a statement in the respondents’ hearing brief that York welcomed and encouraged an open academic community where individuals are free to express differing opinions. The complainant did not assert that the litigation was directly related to the alleged pattern of reprisal which forms the basis of the Complaint before the Tribunal.
40As a result, I find that the allegations related to the litigation to be irrelevant to the matter before the Tribunal and should be struck.
41In view of the above, I make the following orders:
a. Lorna Marsden, Patricia Bradshaw and Robert Drummond shall be removed as personal respondents and the style of cause shall be amended accordingly;
b. The Request to add Mamdouh Shoukri as a personal respondent is refused;
c. The Request to strike paragraphs 3-6 of the Commission’s hearing brief, and the allegation that York’s response to the November 2004 leaflet was part of the reprisal against the complainant for his exercise of rights under the Code, is dismissed. This order is to be read in conjunction with this Interim Decision, and for further clarity, no party will be able to challenge or re-litigate any fact determined by Arbitrator Goodfellow;
d. The request to strike the portions of the complainant’s supplementary hearing brief dealing with Superior Court litigation is allowed.
Dated at Toronto, this 5^th^ day of August, 2009.
“Signed by”
Michael Gottheil
Chair