Mathurin v. University of Toronto, 2009 HRTO 420

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N :

Myrlande Mathurin

Applicant

-and-

University of Toronto and Patricia Harris

Respondent

case Resolution Conference DECISION

Adjudicator: Jennifer Scott

Date: April 15, 2009

Citation: 2009 HRTO 420

Indexed as: Mathurin v. University of Toronto

AppearanceS BY

Myrlande Mathurin, Applicant ) ) On Her Own Behalf )

University of Toronto and Patricia Harris, )

Respondents ) Sari L. Springer, Counsel

Background and Procedure

1This is an Application filed November 13, 2008 under section 53(3) 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 August 28, 2007 and abandoned upon filing this Application with the Tribunal.

2The Case Resolution Conference (CRC) was conducted on March 2, 2009 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(3) applications proceed in a highly expeditious manner given they are often based on complaints, like this one, which are nearly a year old by the time they reach the Tribunal. The following witnesses gave evidence: Myrlande Mathurin, the applicant; and Patricia Harris and Helen Slade for the respondents.

3The hearing of this Application was bifurcated because the applicant was not in possession of the required documents to support her damages claim. The parties were advised that the issue of liability would be determined first and in the event an infringement of the Code was found, a further hearing date would be set to determine remedy. This CRC Decision deals solely with the issue of liability.

Nature of the Dispute

4The applicant, Myrlande Mathurin, claims discrimination in the receipt of services on the basis of age, race, disability and gender pursuant to sections 1 and 9 of the Code against the University of Toronto (the “University”) and Patricia Harris. The applicant alleges that while receiving services from Accessibility Services, Patricia Harris, a Learning Disability Advisor, discriminated against her by treating her as though was she was unintelligent, a chronic malingerer and incompetent.

Decision

5The Application is dismissed. What follows are my reasons.

Background

6The applicant is a 47 year old black woman of Haitian origin. She came to Canada in 1999 and began her studies at the University in the Faculty of Arts and Science in September 2000. Throughout her enrolment at the University, she was a part-time student working towards her Bachelor of Arts degree, completing on average one course per term. As at the date of the CRC, the applicant had not obtained her degree.

7The applicant registered with Accessibility Services in October 2001 as a student with a learning disability. Patricia Harris, a Learning Disability Advisor, worked with the applicant and obtained a variety of accommodation measures on her behalf, including assessments, tutoring, adaptive technology and course work extensions. There is no dispute between the parties that the applicant is a student with a disability and requires accommodation for her academic and learning needs.

Alleged Discrimination

8The applicant concedes that Dr. Harris worked diligently on her behalf in obtaining appropriate accommodations. The applicant has no complaint regarding the appropriateness of the accommodations provided by Dr. Harris and the University. Her complaint relates solely to how she was treated by Dr. Harris when the accommodation services were provided.

General Complaints Regarding Dr. Harris’ attitude

9The applicant asserts that Dr. Harris’ general attitude towards her was marginalizing and disrespectful. Examples include the fact that Dr. Harris: (a) requested receipts for tutoring; (b) told the applicant that she could not understand her; (c) constantly disbelieved the applicant; and (d) questioned her about why she had not informed Dr. Harris that her computer had broken down before grant money had been sent. The allegations relating to Dr. Harris’ attitude were extremely general. When asked for details, the applicant referred back to her human rights complaint form and was unable to provide any information beyond these bald assertions. More importantly, the applicant was unable to articulate how these inquiries by Dr. Harris marginalized her on the basis of a prohibited ground of discrimination.

10The applicant’s evidence about Dr. Harris’ general attitude was so lacking in detail, that I find it unconvincing. There were also insufficient particulars given to enable the respondents to respond. In the absence of sufficient particulars given during the hearing of this matter, I am dismissing the applicant’s complaints described in the paragraph above. Accordingly, this Decision will only address the allegations of discrimination where the applicant provided sufficient detail to permit the respondents to respond.

Intake Interview Fall 2001

11In the fall of 2001, Patricia Harris put her feet on top of her desk during her first interview with the applicant. The applicant felt this was very disrespectful. The applicant did not tell Patricia Harris that she was offended by this incident.

12Patricia Harris explained that her feet were on her desk because she had back problems at that time. She stated her feet were often up on her desk during this period and apologized to the applicant if it offended her.

Spring 2004

13The applicant testified that in the spring of 2004, Patricia Harris said she had never seen a student like her before and suggested that she drop her course. In her human rights complaint, the applicant stated Patricia Harris told her that she was the only student, out of all of her students, who was taking one course and requesting ongoing extensions for completing assignments. The applicant felt Dr. Harris was “writing her off”.

14Patricia Harris explained that she met with the applicant on June 21, 2004 to discuss the course she was currently taking and the work that was outstanding from her course the semester before. At that time, the applicant had three hours of tutoring per week, text-to-speech software, additional time to complete tests and exams, and tape-recorded lectures. The applicant was asking for a second extension on her current course. The request for a further extension triggered a concern on Dr. Harris’ part and she asked the applicant whether, in light of the fact that she was taking only one course, university was right for her.

Dental Funding

15In 2005, the applicant approached Patricia Harris about funding for orthodontic dental work. Dr. Harris told her Disability Services could only fund educationally-related supports and would not fund dental work.

16In the fall of 2006, Helen Slade, the coordinator of student retention services with the University, received a telephone call from the Assistant of the Vice Provost advising her that the applicant had written to the President of the University requesting funding for dental work. Dr. Slade agreed to investigate funding sources that might be available to meet the applicant’s request. Dr. Slade advised the Tribunal that funding was available through the University’s High Needs Committee if the dental work was medically necessary. Dr. Slade agreed that the applicant’s dental pain could interfere with her ability to learn.

17As part of her investigation, Dr. Slade contacted the applicant’s orthodontist, Dr. Metaxas. Dr. Metaxas confirmed with Dr. Slade that the proposed treatment was both functional and cosmetic. Dr. Metaxas advised Dr. Slade that the orthodontic treatment could have no impact on the pain the applicant was experiencing and might even make it worse. As a result of this information, Dr. Slade concluded the orthodontic treatment was not medically necessary and therefore, could not be funded through the University. Dr. Slade then contacted the University’s dental clinic and arranged for a referral to be made to the clinic from Dr. Metaxas. Dr. Slade also contacted, with the applicant’s permission, the Ontario Disability Support Program (the “Program”) to see if funding for the dental work could be provided by the Program. The Program was unable to fund the orthodontic work.

Conclusion

18Based on my review of all of the evidence, I find that the applicant has not established that her age, race, disability or gender played any role in how she was treated by Dr. Harris and the University when receiving accommodation-related services. Put simply, the evidence does not show that Dr. Harris treated the applicant as less qualified academically because of her age, race, disability and/or gender. Had the applicant established differential treatment on the basis of one or more of these prohibited grounds of discrimination, the respondents have provided a non-discriminatory explanation for their actions. Their response to the three specific allegations is set out below.

19Dr. Harris had her feet on her desk because she was experiencing back problems in the fall of 2001. She had a medically-related reason for elevating her feet and it did not reflect a lack of respect for the applicant.

20Dr. Harris was concerned about whether the applicant could cope with her course work in the spring of 2004 because she had requested two extensions for one course and appropriate accommodations (which the applicant acknowledges) were being provided. In these circumstances, it was appropriate for Dr. Harris to ask the applicant whether she was able to handle university work. Her role is to ensure students with disabilities succeed at the University by providing appropriate accommodation. Where a student cannot succeed and appropriate accommodations are being provided, an advisor can legitimately question a student’s ability to do the work without contravening the Code. Dr. Harris questioned the applicant because she was unable to complete her course work, not because of a discriminatory belief that the applicant was less capable because of her age, race, gender or disability.

21With respect to the request for funding for orthodontic work, there was no evidence that the orthodontic treatment requested by the applicant would have responded to the pain she was experiencing thereby facilitating her ability to learn. As such, the orthodontic treatment was not a required accommodation. In any event, the respondents did not discriminate against the applicant in their response to her request for dental funding. Rather, they went out of their way to see if the treatment could be provided through other means.

22It is clear from the evidence before me that the applicant had many challenges at school. However, the evidence does not establish that Dr. Harris marginalized the applicant when providing accommodation. The questions asked by Dr. Harris in the course of providing accommodation-related services were appropriate. Although the applicant may have misconstrued Dr. Harris’ actions, there is no evidence that Dr. Harris engaged in a pattern of conduct to marginalize the applicant’s academic abilities or potential. In any event, had the applicant established such a pattern of conduct, Dr. Harris and the University have provided credible, non-discriminatory explanations for their actions.

Order

23Accordingly, 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.