Adrienne Harris v. Humber College Institute of Technology and Advanced Learning, 2009 HRTO 1822

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adrienne Harris

Applicant

-and-

Humber College Institute of Technology and Advanced Learning, Claire Cowan, Cindy Hunt, Kathleen MacMillan and Clay MacDougall

Respondents

DECISION

Adjudicator: Jennifer Scott Date: November 9, 2009 Citation: 2009 HRTO 1822 Indexed as: Harris v. Humber College

AppearanceS BY

Adrienne Harris, Applicant ) On her own behalf

Humber College Institute of Technology ) and Advanced Learning, Respondent ) Brenda Bowlby

Claire Cowan, Clay MacDougall, ) Kathleen MacMillan, Cindy Hunt and ) Brenda Bowlby Zeneth Myrie, Personal Respondents )

Background and Procedure

1This is an Application filed January 23, 2009 under section 53(5) of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). The underlying human rights complaint was filed with the Ontario Human Rights Commission on May 30, 2005 and abandoned upon filing this Application with the Tribunal. The complaint involves an allegation of discrimination on the basis of race in a grade dispute between the applicant and Humber College Institute of Technology and Advanced Learning (“Humber College”).

2The Case Resolution Conference (CRC) was conducted on October 1, 2009 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(5) applications proceed in a fair, just and expeditious manner. On consent, the respondents proceeded first with their evidence.

3The following witnesses gave evidence at the hearing: Kathleen MacMillan, Clay MacDougall, Cindy Hunt, Claire Cowan and Zeneth Myrie on their own behalf and on behalf of Humber College. Adrienne Harris and Lorna McLeod testified for the applicant.

4The hearing of this Application was bifurcated and the issue of liability was determined first. This CRC Decision deals solely with the question of liability.

5During the hearing, the applicant sought to call a fellow student as a witness who also had a grade dispute at Humber College with a different professor in a different course. The student was successful in her grade dispute, but felt the process was unfair because of her race. I did not allow this student to testify. There was no complaint against this professor in the applicant’s complaint and the experience of the other student bore no similarity to the experience of the applicant which is alleged to have been discriminatory.

Nature of the Dispute

6The applicant, Adrienne Harris, claims discrimination in the receipt of services on the basis of race pursuant to sections 1 and 9 of the Code against Humber College and against the personal respondents Claire Cowan, Clay MacDougall, Kathleen MacMillan, Cindy Hunt and Zeneth Myrie. The applicant alleges that she was discriminated against by Humber College and the personal respondents during the grade review process in a course called “Young Families Health”.

DECISION

7The Application is dismissed. What follows are my reasons.

Baccalaureate Program in Nursing at Humber College

8In 2001, the qualifications for becoming a registered nurse in Ontario changed. Nurses were no longer able to register with the College of Nurses with a three year diploma in nursing and instead had to complete a four-year baccalaureate degree in nursing. Humber College, which had previously offered a diploma program in nursing, responded to this change by entering into a partnership with the University of New Brunswick (“UNB”) to offer a four-year baccalaureate program in nursing. Although Humber College provides the program, the degree is granted from UNB.

9The agreement between Humber College and UNB provides that UNB’s regulations and academic rules (“academic regulations”) apply to the students in Humber College’s nursing baccalaureate program. Under UNB’s academic regulations, a student must attain at least a C grade (55% to 59%) to pass a nursing course. A student who fails the same course twice is withdrawn from the program for at least one year before they can reapply.

10In the fall of 2002, the applicant enrolled in the nursing baccalaureate program at Humber College. In her first term, she failed two out of six courses. She made up these courses during the summer of 2003 term. In the fall of 2003, the applicant failed a course called “Young Families Health”. The applicant repeated this course in the fall 2004 term and it is this course that is the subject of the human rights complaint.

Grade Dispute in Young Families Health

11In the fall 2004 term, the applicant passed her first midterm exam in Young Families Health. She received a mark of 55%.

12The applicant failed her second midterm exam. The applicant met with her professor, Zeneth Myrie, to dispute her grade. When Ms. Myrie went through the exam, the applicant noticed that one and one-half pages of the exam had not been marked. Ms. Myrie agreed to have another professor mark the second midterm exam. Even with the re-marking, the applicant failed the second midterm exam. The applicant believes she received a grade of 54%. Humber College’s records indicate the applicant received a grade of 53%.

13The applicant failed the final exam with a grade of 52%. The applicant wanted to see her final exam because there had been discrepancies in the marking on the second midterm.

14The applicant went to see Claire Cowan, the program coordinator, in early January 2005. She continued to be concerned about her second midterm mark and her final exam mark. The role of the program coordinator is to address a student’s concerns over grades. Ms. Cowan also teaches in the baccalaureate program and taught Young Families Health to the applicant in the Fall 2003 term. The applicant was unable to meet with Ms. Myrie about her final exam because she was no longer teaching at Humber College in January 2005.

15Ms. Cowan reviewed the second midterm exam with the applicant and believed she was entitled to an additional one to two marks on the short-answer questions. She also had the multiple choice part of the mid-term re-run (it is marked electronically) to ensure that there were no errors. Ms. Cowan reviewed the final exam with the applicant and concluded there were no discrepancies in the marking. Even with the increase in the second mid-term mark to 55%, the applicant still had an overall failing grade in the course of 53.65%.

16Ms. Cowan did not give the applicant her final exam to review. Instead, she reviewed the areas of weakness with the applicant. Ms. Cowan had been instructed by the Associate Dean, Cindy Hunt, that students in the nursing faculty were not permitted to review their exams. Ms. Cowan understood the rationale for this rule was to protect the integrity of the tests which were used again. This rule was applied to all students.

17The applicant continued to believe that there were discrepancies in her final exam. Ms. Cowan suggested that she meet with the Associate Dean Nursing Dr. Hunt. Dr. Hunt cancelled her first appointment with the applicant in mid January 2005. When the applicant met with Dr. Hunt at the rescheduled appointment on January 25, 2005, she asked to see her final exam. Dr. Hunt did not allow the applicant to see her final exam.

18The applicant continued to be dissatisfied with how Humber College was addressing her grade dispute. She then met with Kathleen MacMillan, the Dean of the School of Health Sciences at Humber College. Dr. MacMillan met with the applicant on February 8, 2005. The applicant wanted to look at her final exam. Dr. MacMillan did not allow the applicant to review her final exam.

19During the meeting on February 8, 2005, Dr. MacMillan noticed that the applicant did better on the multiple choice questions than on the short answer questions. Dr. MacMillan asked the applicant whether she had a learning disability because she believed this might explain the discrepancy in the applicant’s ability to communicate her knowledge on a multiple choice question as compared to a short answer question. The applicant was offended by Dr. MacMillan’s question.

20Finally, the applicant went to see the Deputy Registrar at Humber College, Clay MacDougall. Mr. MacDougall asked the applicant to submit a formal review of her grade in writing. The applicant submitted her formal request on February 10, 2005.

21Dr. Hunt completed the formal grade review. Ms. Cowan met with Dr. Hunt to review the applicant’s assigned grade. Two faculty members reviewed both the short answer and multiple choice questions for the two midterms and the final exam. The responses were rechecked and the final scores totalled. All findings were consistent in concluding the applicant failed the course.

22On April 19, 2005, the applicant submitted an application for an academic appeal hearing to Mr. MacDougall. The reasons for the appeal were two-fold: (a) there was confusion around her grade change (during the review process); and (b) the applicant had not been allowed to review her final grade in her final exam.

23When Mr. MacDougall reviewed the text of the appeal application, he realized for the first time that the applicant had not been allowed to see her final exam. Mr. MacDougall knew that UNB allowed students to review their exams to enable them to appeal a specific grade assigned or the validity of the question or answer given. By reviewing the exam, the student was able to state specific grounds of appeal.

24On May 11, 2005, Mr. MacDougall wrote to the applicant and advised her that the grade review that had been conducted was invalid because she had not been permitted to review her exam contrary to UNB academic regulations. Mr. MacDougall advised the applicant that she could review her exam on May 18 or 19, 2005. He advised the applicant that failure to review her exam would leave her failing grade in place and she would be required to withdraw from the nursing program for a period of twelve months.

25By letter dated May 16, 2005, the applicant advised Mr. MacDougall that she was taking the matter of her grade review and denied appeal further, based on harassment and discrimination.

26The applicant filed her complaint with the Ontario Human Rights Commission on May 30, 2005.

27The applicant has not returned to the nursing program.

Final Grade Appeal Processes

28Under the 2004/2005 academic regulations (“Academic Regulations”), the grade dispute process at Humber College for diploma, certificate and postgraduate programs included an informal and formal component. The student was required to proceed informally first by taking the following steps: (a) discuss the matter with the faculty member; (b) discuss unresolved matters with the program co-ordinator; and (c) if the student remained unsatisfied, the student was to meet with the Dean to attempt to finally resolve the situation at the School level. If the student was not satisfied with the informal appeal, a formal appeal could be initiated in writing to the Registrar. The documentation for the formal appeal had to be completed within six weeks from the end of the course. The Academic Regulations were silent on whether or not the student had the right to see his/her exam.

29The grade review process at UNB was more formalized. Upon receipt of a request to review a final course grade, the Chair of the Department or the Dean discussed the matter with the instructor to determine if a change in grade was warranted. If the student was not satisfied with the results of this process, a panel of three was struck to review the grade and provide reasons. The student had the right to appeal this committee’s decision. As part of the grade review process, students were entitled to see their own examinations after grades had been released.

Alleged Discrimination

30The applicant alleges she was discriminated against when:

(a) she was prevented from seeing her exam;

(b) her marks changed from teacher to teacher during the review process;

(c) the grade review process proceeded without her review of the exam;

(d) she was denied the right to appeal because she was required to undertake the review process again;

(e) Caucasian students were given the opportunity to make up their failed grade at another University and she was removed from the program permanently; and

(f) Dr. MacMillan asked her if she had a learning disability.

31The onus is on the applicant to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant's favour in the absence of an answer from the respondent (Ontario Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (S.C.C.), at para. 28.) Upon establishing a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that its actions were not discriminatory. It is well-established that the threshold for establishing a prima facie case of discrimination is not high.

Procedural Flaws in Grade Review Process

32The applicant has raised many valid concerns about the process followed by Humber College when it conducted the grade review, namely, she was denied the right to see her exam, denied the right of appeal, and information was lost when her grade was reviewed from professor to professor. The applicant alleges these procedural errors were due to her race.

33There was a dispute in the evidence concerning which exam marks were revised by Ms. Cowan. Ms. Cowan believes she raised the second midterm by one or two marks. The applicant believes the increase was to the final exam. I do not need to resolve this dispute because the evidence is clear that Ms. Cowan raised one of the exams by one or two marks, however the increase did not change the fact that the applicant failed the course. I accept the applicant’s evidence that as she proceeded through the grade review process, both Dr. Hunt and Dr. MacMillan did not have the revised mark that had been given by Ms. Cowan

34I find that the nursing program at Humber College followed a standard practice of not allowing its students to review their exams when disputing grades. This practice was in place to protect the integrity of the exams which were used again. When the nursing program realized this practice was contrary to UNB’s process, it offered the applicant the opportunity to review her exams. There is no evidence before me that the applicant was treated differently from other students in the nursing program at Humber College.

35The applicant believes that she was denied the right to appeal her grade because of her race. The grade review is a precursor to the appeal. Because the grade review was flawed, Humber College wanted to correct it. It is unfortunate that the error was identified five months after the course had been completed. This is well beyond the six week period to file the formal appeal. That being said, the applicant was not denied her right of appeal: she was required to complete a proper grade review first.

36The applicant complains that her grades changed from professor to professor and she believes her race was a factor. The only evidence concerning grades changing during the review process is that Dr. Hunt and Dr. MacMillan were not aware that Ms. Cowan had increased the applicant’s marks on one exam by one or two marks. The fact that Drs. Hunt and MacMillan were not aware of the increase is not tied to the applicant’s race. Both faculty members were focussed on the end result which was the failed grade in the course. Unfortunately, this communication gap added to the applicant’s distrust of her final exam mark. When the applicant was refused the opportunity to review her final exam, she lost complete trust in the grade review process.

37I find that the applicant’s procedural complaints were the direct result of the grade review policy itself and the practice by the nursing program to not allow students to see their exams. The Academic Regulations required a multi-level inquiry that was extremely demanding on the applicant. Information was not passed on from one reviewer to another. The applicant was denied the basic right to see her exam. It is unclear to me how she could dispute her grade without seeing her exam. By the time Humber College recognized its procedural error, the applicant was no longer willing to engage in the grade review process with Humber College. It is not surprising that the applicant was fed up. However, the policy and practice were applied to all students. There is no basis upon which to conclude that the procedural flaws bore any relationship to the applicant’s race.

Remaining Complaints

38The applicant has raised two other complaints that are not procedural in nature. The first complaint is that Caucasian students were permitted the opportunity to make up their failed grade at another University over the summer and continue on in the nursing baccalaureate program. The applicant was not able to identify these students.

39Humber College conceded that there was a Caucasian student who was permitted to make up a failed course over the summer. However, that student had only failed the course once and the same course was available at another University. This did not apply to the applicant because she had failed the course twice.

40I accept Humber College’s response. There is no evidence before me that Caucasian students who failed a course twice were given the opportunity to make up the course so that they could continue on with the program without a twelve-month withdrawal.

41The second complaint deals with the inquiry of Dr. MacMillan as to whether the applicant had a learning disability. While it is understandable why the applicant was offended by this comment, particularly because of her race and the fear by many racialized persons that they may be streamed out of demanding academic environments, I do not find that the comment was influenced by the applicant’s race in this case. The applicant performed very differently on multiple-choice and short-answer questions. The applicant did much better answering multiple-choice questions than she did when communicating more descriptive responses to short-answer questions. This led Dr. MacMillan to wonder whether there was a processing difficulty to explain the disparity. I find that there was a non-discriminatory basis for Dr. MacMillan’s question.

Conclusion

42Based on my review of all of the evidence, I find that the applicant has not established that her race played a role in how she was treated during the grade review process. The applicant has established that the process followed by Humber College was flawed. However, flawed processes are not discriminatory processes. There is insufficient evidence in this case to show that the procedural flaws were influenced by the applicant’s race. What the evidence does show is that the flaws were inherent in the Academic Regulations and Humber College’s practice of denying students the right to see their exams, both of which were applied to all students.

43Accordingly, in light of the above conclusions, I do not find a violation of sections 1 and 9 and of the Code by the respondents. This Application is dismissed. In light of the Tribunal’s order, there is no need for a further hearing on remedy.