Xia v. University of Toronto Students’ Administrative Council, 2009 HRTO 2275

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

YangYun Caroline Xia Applicant

-and-

University of Toronto Students’ Administrative Council, Paul Bretscher, Richard (Rick) Telfer and Jennifer Hassum Respondents

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: Mark Hart Date: December 30, 2009 Citation: 2009 HRTO 2275 Indexed as: Xia v. University of Toronto Students’ Administrative Council

APPEARANCES BY

YangYun Caroline Xia, Applicant ) On her own behalf University of Toronto Students’ Administrative Council, Paul Bretscher, Richard (Rick) Telfer and Jennifer Hassum, Respondents ) Michael Richards, Counsel

1This is an Application made under s. 53(3) of the Ontario Human Rights Code, dated December 30, 2008. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on August 18, 2006.

2The applicant alleges that she experienced discrimination in respect of employment because of her race and colour contrary to ss. 5 and 9 of the Code, in relation to the hiring of a Garden Coordinator by the respondent Students’ Administrative Council (“SAC”) in June 2006.

3The Case Resolution Conference (“hearing”) in this matter was held on November 16, 2009 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications, that section 53(3) applications proceed in a highly expeditious manner. On consent of all parties, I took the lead in questioning the witnesses and heard from the applicant and two of the personal respondents, Jennifer Hassum and Rick Telfer.

4As the Application relates to the denial of a job and as the reason for the applicant not being considered for this job was within the knowledge of the respondents and their witnesses, I commenced my questioning of the witnesses with Jennifer Hassum and Rick Telfer before proceeding to question the applicant, once again after discussion with and on consent of the parties. Cross-examination of opposing witnesses was allowed after I had completed my questioning of each witness.

Scope of the Application

5At the commencement of the hearing in this matter, I questioned the applicant regarding the scope of the allegations raised in her Application. The underlying complaint which forms the basis of the Application addresses a series of events pertaining to a community garden by the SAC office, dating back to 1998. On the basis of the material filed by the applicant, it was unclear to me what information included in the complaint was merely background or contextual information, and what information formed the basis of allegations that the Code had been violated.

6In particular, in material filed with the Tribunal by the applicant, she had stated that paragraphs 3 to 7 of her complaint were just “historical background”. The applicant also had stated: “SAC posted a job opening for which I applied. My complaint pertains to my application for that job posting”.

7As there was other information contained in the complaint in addition to the job posting issue and the paragraphs that expressly had been identified as historical background, I questioned the applicant regarding each additional paragraph in order to ascertain whether this information too was just part of the background or whether it formed the basis of an allegation of a violation of the Code apart from the issue of the job posting.

8Paragraph 8 of the complaint described certain statements alleged to have been made by the personal respondent Jennifer Hassum in the context of a Public Election Forum held in February 2006. The applicant confirmed that this was just background information, and was not an allegation of a violation of the Code.

9Paragraph 9 of the complaint described certain alleged treatment of the applicant by the personal respondent Rick Telfer, the banning of the applicant from SAC premises, and the alleged destruction of her personal files and some belongings in or about April 2006. The applicant again confirmed that this was background information because no job was involved at the time, and was not an allegation that the Code had been violated.

10Paragraph 11 of the complaint, in addition to raising the issue of the applicant not being hired for the Garden Coordinator position, also contained information about the denial of an honorarium for the applicant in relation to volunteer work that she had been performing in the community garden. I expressly asked the applicant whether the denial of an honorarium was just another part of the background to her complaint, or whether it formed a separate basis upon which she was alleging that the Code had been violated. The applicant confirmed that this information was just another part of the background.

11I then confirmed with the applicant, on the basis of the detailed review of her complaint that had just been conducted, that the only allegation of a violation of the Code that she was raising in this proceeding was in relation to the denial of the Garden Coordinator position, and the applicant confirmed that this was correct.

12This exercise was significant, because the respondents had raised a number of preliminary objections to the Application, including issues as to the timeliness of some of the matters raised, whether some of the matters raised supported a prima facie case of discrimination, and whether matters relating to the applicant’s volunteer work were within the Tribunal’s jurisdiction. On the basis of the clarification provided by the applicant regarding the scope of the Application and her confirmation that it only pertained to the denial of the Garden Coordinator position, the respondents withdrew all of these preliminary objections and I proceeded with the hearing.

13After dealing with the respondents’ request for the dismissal of the Application as against the personal respondents (discussed below), I commenced the hearing by questioning Jennifer Hassum in relation to her role in and knowledge of the hiring process for the Garden Coordinator position. After I had completed my questioning of Ms. Hassum and had allowed counsel for the respondents an opportunity to ask any further relevant questions, I permitted the applicant to cross-examine Ms. Hassum. In the midst of her cross-examination, the applicant stated that prior to the Garden Coordinator job, she had held an “implicit job” with SAC on the basis of her volunteer work and prior grants of an honorarium. The applicant took the position that SAC’s failure to pay her an honorarium in 2006 should form part of her “substantive complaint”, such that this issue should be addressed at the hearing as an additional allegation of a Code violation.

14In the interest of proceeding with this matter expeditiously, I directed that the applicant complete her cross-examination of Ms. Hassum and that we also hear the evidence of Rick Telfer on the hiring issue, and that I would hear submissions on the applicant’s request to re-raise the honorarium issue following the lunch break. Following the lunch break, I raised with the applicant my concern that I already had addressed with her at the outset of the proceeding what aspects of the information contained in her complaint were just contextual background and what aspects formed the basis of an allegation that the Code had been violated, and had expressly confirmed with her that the honorarium issue was part of the contextual background and was not an allegation of a violation of the Code. I also expressed concern that on the basis of the applicant’s confirmation that the denial of the Garden Coordinator position was the only allegation of a violation of the Code being raised in this proceeding, the respondents had withdrawn their preliminary objections and we had commenced hearing evidence.

15I invited submissions from the applicant to address my concerns. The applicant submitted that she was not a lawyer and was not being represented by a lawyer in this proceeding, and was simply doing the best according to her ability which was not the ability of a lawyer. The applicant stated that she didn’t intend that the honorarium issue be dismissed, as she had provided full details regarding this issue in the material she had filed. The applicant further stated that she was not clear about the distinction between what was background and what was an allegation of a Code violation.

16In response, counsel for the respondents submitted that this was not really a legal issue; rather, it was just a question of what issues were being raised by the applicant in her own complaint as forming the basis of an alleged violation of the Code. I agree. I was well aware that the applicant was not represented by counsel in this proceeding, and took pains at the outset to explain to her the distinction between information that was contextual background to her complaint, information that was being cited as evidence in support of her allegations, and information that formed the basis of an allegation of a Code violation. I then carefully went through each separate matter raised in her complaint in order to identify what was being alleged as a Code violation. In my view, even an unrepresented applicant should be able to identify what it is that she is alleging amounts to a Code violation.

17Counsel for the respondents also submitted that they would be prejudiced if the applicant was permitted to re-raise the honorarium issue at this time, given not only that they had withdrawn their preliminary objections but also given that their witnesses already had commenced giving evidence and had been subject to cross-examination by the time the applicant attempted to re-raise this issue. I share these concerns. At the very least by the outset of the hearing, a respondent is entitled to know what it is that they are alleged by an applicant to have done that is being advanced as a violation of the Code. Having clarified this with the applicant at the outset of the proceeding, I find that it would be unfair and prejudicial in the midst of the hearing to allow the applicant to go back and re-raise an issue that she already had confirmed was not being advanced as a Code violation.

18As a result, I ruled at the hearing that I would not permit the applicant to re-raise the honorarium issue.

19On December 10, 2009, the applicant sent correspondence to the Tribunal once again requesting that I address the honorarium issue in this proceeding, and re-convene the hearing to address this issue. I already had ruled at the hearing that I would not permit the applicant to re-raise this issue after inviting and hearing submissions from the parties, and there is nothing in the correspondence from the applicant that causes me to change this ruling.

Removal of Personal Respondents

20The respondents had requested at the outset of the proceeding that the Application be dismissed as against the personal respondents. After hearing submissions from the parties on this issue, I made the following oral ruling at the hearing:

1. The respondents have made a request that the Application be dismissed as against the personal respondents.
2. The applicant has clarified that the only allegation raised in this proceeding that her rights under the Code have been infringed relates to the denial of the Garden Coordinator position.
3. There is no dispute that the hiring decision for this position was made by the corporate respondent and that the corporate respondent also is responsible for the decision made not to consider the applicant’s application for this position.
4. The applicant has not provided any specific basis upon which she alleges that either the personal respondents Paul Bretscher or Rick Telfer were involved in either the hiring decision or the decision not to consider her application.
5. With regard to the personal respondent Jennifer Hassum, while she was on the Hiring Committee for this position, the applicant has not provided any specific basis upon which she should be held personally responsible either for the hiring decision made by the committee or for the decision made not to consider the applicant’s application.
6. Accordingly, the Application is dismissed as against all personal respondents.

Evidence re: hiring process for Garden Coordinator position

21A job posting was prepared for a part-time position as a Garden Coordinator, to oversee and work on the community garden on the SAC front lawn. The start date for the position was July 3, 2006, and the position required approximately 12 to 16 hours of work per week until October 13, 2006.

22The job posting indicated an application deadline of June 22, 2006. No specific time was indicated on the job posting stating by when on June 22, 2006 the application had to be submitted. However, the evidence of the respondents’ witnesses was that, in accordance with standard SAC practice, the application deadline was the close of the SAC office business hours, which was until 5 p.m. during the school year and until 2 p.m. during the summer. This was the deadline that SAC used for a variety of matters it dealt with, including election nominations, bursary applications and club applications in addition to job applications. As June 22, 2006 fell within SAC’s summer hours, the deadline for applications for the Garden Coordinator position in accordance with SAC’s standard practice was 2 p.m. on June 22, 2006.

23Jennifer Hassum was present in the SAC office on June 22, 2006, although she was not the person responsible for receiving the job applications. The person responsible for receiving the job applications was Andréa Ambrost, the SAC Vice-President, Internal and Services, who did not testify before me. Ms. Hassum’s evidence is that, immediately after the 2 p.m. deadline, Ms. Ambrost prepared the packages for the job applicants who had applied for the Garden Coordinator position and distributed these packages to the members of the hiring committee. The hiring committee then reviewed the packages to determine who would be interviewed for the position.

24As SAC President at the time, Ms. Hassum was a member of the hiring committee. The hiring committee also included the SAC Vice-President, Equity and a representative from the Board of the Ontario Public Interest Research Group (“OPIRG”), which also supported the community garden. Ms. Hassum recalls receiving the package of job applications from Ms. Ambrost on June 22, 2006 prior to leaving the SAC office that day. Ms. Hassum’s evidence is that there were approximately 20 applicants for the position. The hiring committee members were to review the applications and submit their list of top candidates for interviews the following week. The hiring committee sought to interview four candidates for the position, but one candidate was not available so only three were interviewed. After conducting the interviews, the hiring committee reached a unanimous agreement on the successful candidate.

25The applicant’s application for the Garden Coordinator position was not among the application packages prepared by Ms. Ambrost for the hiring committee members. The applicant introduced into evidence a series of five e-mails that she states she had sent to SAC with her application for the position. The first e-mail was sent at 5:16:03 a.m. on June 22, 2006 from the applicant’s e-mail address from the “prontomail.com” server. The second and third e-mails were sent at 4:01:15 p.m. on June 22, 2006 once again from the applicant’s e-mail address from the “prontomail.com” server. The fourth e-mail was sent at 9:08:11 p.m. on June 22, 2006, but this time from another e-mail address used by the applicant from a different server, “care2.com”. A fifth e-mail was sent at 9:21:19 p.m. on June 22, 2006 from the applicant’s e-mail address on the “care2.com” server.

26The respondents’ evidence is that only one application by e-mail was received from the applicant, and the documents produced by the respondents show this e-mail as having been sent from the “care2.com” server at 8:19:19 p.m. on June 22, 2006. The language in this e-mail corresponds with the e-mail produced by the applicant as having been sent at 9:21:19 p.m. that evening. The only explanation offered by the applicant for the discrepancy between the time as shown on her document as opposed to the time as shown on the respondents’ document is that she may have sent in her application for the position more than five times, and may have sent an e-mail at 8:19:19 p.m. but may no longer have a copy.

27One of the applicant’s e-mail applications sent at 4:01:15 p.m. states: “Dear Andrea, Please see attachment of e-mail sent earlier, as e-mail might not have been received by you.” The applicant’s evidence is that, at the time she sent this e-mail, she may have had “bounces” back from people to whom she had bcc’ed on the e-mail, but she did not in fact have any reason to believe that her earlier e-mail had not been received by SAC. The applicant states that she was merely making an excuse to explain why she was sending in her application again. The applicant’s evidence is that she sent in her application multiple times simply to ensure that it was received by SAC.

28However, the applicant’s e-mail sent at 9:08:11 p.m. from a different server states: “Hi Andrea, There seems to have been some computer glitches, as David Melville, one of my Job References, said he did not receive the cc of my Application, which I sent out earlier. I am therefore resending; apologies for any repeat e-mails, and thank you for your attention.” A similar statement with some minor changes in language is included with the e-mail sent by the applicant at 9:21:19 p.m.

29In her evidence, the applicant initially stated that, while Mr. Melville had said that he hadn’t received her earlier e-mails, she couldn’t say for sure that she had copied him on her earlier e-mails. This evidence is squarely in contradiction to what the applicant stated in her last two e-mails. Later in her evidence, the applicant said that she thought it was her e-mail from the “prontomail” server that Mr. Melville had not received, and that he suggested that she send the application again from a different server.

30In cross-examination, the applicant stated that she may have received a “bounce” notice alerting her that the e-mail had not gone through to Mr. Melville, which contradicts a statement she had made in other material submitted to the Tribunal that she “successfully submitted [her] application by email four times without bounces”.

31The evidence indicates that the applicant on at least two other occasions had experienced problems with her e-mail on the “prontomail” server, specifically that she had not received two e-mails sent by Mr. Telfer to her e-mail address on this server, one on January 29, 2006 and the other on April 3, 2006. The applicant’s evidence is that if her e-mail box on this server is full, she sometimes cannot receive or send e-mail; however, she states that she would receive a notice if she was unable to send out an e-mail for this reason. The applicant did acknowledge in cross-examination that any of her e-mails could have been lost in cyberspace for any reason, and that she often has had e-mails just disappear.

32Rick Telfer, who was General Manager of SAC at the relevant time, testified that incoming e-mail sometimes would be picked up by the spam filter and would be diverted to the spam folder. His evidence was that SAC did not have any system for monitoring the spam folder at this time, and that no-one was responsible for doing this.

33The applicant testified that shortly after the application date, she ran into the OPIRG representative on the hiring committee and was told that her application had been received by this person. The applicant does not know which of her e-mails was received by this person, who was not called to testify before me. However, I note that the last two e-mails submitted into evidence before me by the applicant (both sent after 9 p.m. on June 22, 2006) and the one e-mail submitted into evidence by the respondents (sent after 8 p.m.) were expressly copied to OPIRG.

Applicant’s request to present further evidence

34After I had heard the evidence regarding the hiring process for the Garden Coordinator position, I invited the parties to make submissions as to whether there was any further relevant evidence that I needed to hear in order to make my determination as to whether the applicant had been denied the position because of her race or colour in violation of the Code.

35The applicant submitted that I needed to hear evidence regarding systemic discrimination against East Asians at the University of Toronto in general and at SAC in particular. The applicant submitted that I needed to understand how this pattern and practice of systemic discrimination created a situation where she, as an East Asian, was disempowered, excluded and denied a job, whether through conscious active efforts on part of those actively and directly involved or through conformity to existing social structures that breed racism. The applicant submitted that such evidence would make clear that as an East Asian person, her services with the community garden were overlooked, marginalized and depreciated.

36The difficulty I see with the relevance of this evidence is in ascertaining what room exists on the evidence for this kind of systemic racism to have entered into the hiring process specifically in relation to the respondents’ explanation as to why the applicant’s application was not considered. The respondents’ evidence is that there was a 2 p.m. deadline for applications to be filed, and that they simply had not received an application from the applicant by that deadline. Unless I disbelieve the respondents on one of these points, I fail to see how broader evidence of systemic racism is relevant in the specific circumstances of this case. In light of my decision on the hiring issue as set out below, I find that the broader evidence of systemic racism that the applicant submits I should hear is not relevant to the specific issue raised in this proceeding.

Analysis and Decision

37The evidence indicates that SAC has a practice of requiring job applications to be submitted by the end of its office hours on the deadline date, which is in line with SAC’s practice in relation to other issues such as election nominations, bursary applications and club applications. There was no evidence led by the applicant to contradict this practice. I agree with the applicant that it would have been preferable for SAC to have set out the specific time by which applications were due on its job posting. The evidence of Mr. Telfer is that this was likely an oversight based on the use of an old template.

38Nonetheless, Ms. Hassum’s evidence is that she recalls a specific discussion with Ms. Ambrose about the 2 p.m. deadline for submission of applications for the Garden Coordinator position, which accords with her evidence that the application packages were prepared by Ms. Ambrose immediately after the SAC office closed on June 22, 2006. Once again, there is no evidence to contradict this. Accordingly, I find as a matter of fact that the respondents did operate on the basis of a 2 p.m. application deadline for the Garden Coordinator position.

39Only one e-mail application was sent by the applicant prior to the 2 p.m. deadline, which is the e-mail she sent from the “prontomail” server at 5:16:03 a.m. I accept the respondents’ evidence that this e-mail simply was not received by SAC, and that the only e-mail application from the applicant was received after 8 p.m. on June 22, 2006. The applicant herself has acknowledged that at least one of the intended recipients of the e-mails sent from her “prontomail” account, namely Mr. Melville, did not receive the earlier e-mails. I prefer the applicant’s evidence as recorded in her written documents that Mr. Melville told her that he had not received the earlier e-mails, as opposed to the applicant having received a “bounce” message.

40There are a number of possible explanations for why SAC did not receive the applicant’s first e-mail application. The applicant’s e-mail could have appeared to have been sent from the “prontomail” server but simply not have been received by SAC without generating a “bounce” message, as appears to have occurred with Mr. Melville. As the applicant herself acknowledged, it is not uncommon for e-mails to simply become lost in cyberspace. Or the e-mail could have been diverted by SAC’s spam filter into the spam folder, which was not being monitored by anyone at the time. There may be other explanations. But however this occurred, there is no evidence before me to prove that the respondents actually received an application from the applicant for the Garden Coordinator position prior to the 2 p.m. deadline, and the only evidence before me as to when SAC received the applicant’s e-mail application indicates that this didn’t happen until after 8 p.m.

41Accordingly, I find that the applicant was not considered by the respondents for the Garden Coordinator position because SAC didn’t receive her application by the 2 p.m. deadline on June 22, 2006 and not for any discriminatory reason.

42For all of these reasons, the Application is dismissed.