HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sylvia Hsieh
Applicant
-and-
York University, Sean Martin, Mary O’Regan, Amy Rossiter, and Renita Wong
Respondents
case Resolution Conference DECISION
Adjudicator: David Muir
Indexed as: Hsieh v. York University
AppearanceS BY
Sylvia Hsieh, Applicant ) Kathleen Headley, ) Representative
York University, Sean Martin, Mary O’Regan, ) Amy Rossiter, Renita Wong, Respondents ) Joanna S. Rainbow, ) Counsel )
1This is an Application filed August 26, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination by the respondents in the provision of services on the grounds of creed and disability.
2A Case Resolution Conference was held on January 30, 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. I heard from the applicant, Kathleen Headley, each of the individual respondents, the applicant’s former professor, an outside marker and a class mate of the applicant. The evidence took the whole day and the parties agreed to provide written submissions in accordance with an agreed schedule.
3At the outset the applicant sought to lead evidence with respect to allegations that the York University Office for Persons with Disabilities (the Office) had discriminated against her on the basis of disability. The respondents objected to what they characterized as a significant expansion of the grounds alleged in the complaint underlying the Application. In an oral ruling I did not allow the applicant to raise allegations respecting the Office as these had not been raised in any way in the her complaint to the Ontario Human Rights Commission which forms the subject-matter of this Application.
Background
4The dispute between the parties centres largely on the applicant’s claim that she was subject to differential treatment as a consequence of her disabilities and her creed. As a result the applicant alleges she received lower marks in the three social work courses taken over the 2006/2007 academic year. In addition she was not allowed to withdraw from a music course and received a failing grade. The poor marks in the three social work courses and the failing grade in the music course effectively resulted her expulsion from the social work program. The parties agreed to call their evidence in respect of each of these courses in turn and I will deal with them in that order as well.
5In August 1995 the applicant was involved in a motor vehicle accident and suffered a traumatic brain injury, amongst other injuries. Despite her injuries the applicant finished high school and obtained her Bachelor of Arts degree from York in 2002.
6The applicant self identified as a person with a disability upon enrolment at York, with the Office. The Office provides a number of services to students and the applicant used some of these services in the past. However, accommodation in a particular classroom is largely a matter of discussion between student and course instructor. The Office does not identify students who may require an accommodation to course instructors unless requested by the student to do so. In that case the Office will provide a letter of introduction to present to the course instructor. The applicant produced one such letter at the CRC hearing. It was addressed to Ms. Wong, a respondent and one of her course instructors. The letter contains no information with respect to the applicant’s disabilities and identified accommodations she might require in a very general way. The evidence of the respondents, which I accept, is that it is for the student to present the letter to the course instructor and arrange a meeting with them to discuss what specific accommodations might be required for a particular course in light of the student’s particular needs.
7The applicant was admitted to the Bachelor of Social Work program in Fall 2006.
8I was not provided with any clear description of the residual impairments consequent to the traumatic brain injury. The best evidence of Ms. Hsieh’s cognitive disabilities placed before me is contained in a 2002 letter written on her behalf by Kathleen Headley an educational consultant:
Ms. Hsieh continues to demonstrate significant cognitive weaknesses as a result of her acquired brain injury, most notably in the areas of memory; higher levels of cognitive communication (i.e. understanding inferential, abstract, and complex language, expressing herself clearly, word finding, organizing her ideas logically and sequentially, analysis); speed of information processing; abstract and flexible thinking/reasoning; planning; making decision; using good judgement; having insight; understanding and accepting limitations; utilizing feedback; consolidating and integrating new learning.
9Although one respondent was provided with a description of the applicant’s cognitive impairments after the course in question was completed, this kind of information was never disclosed to any of the individual respondents at the material times. A hearing impairment, for which the applicant began using hearing aids during the material time period, was the only disability identified to the respondents.
10Other than confirming, in a number of different ways, that more one-on-one guidance from her course instructors was what she required, the applicant provided no evidence of the impact her disability might have had on her performance in the courses and equally little evidence of what other accommodation might have assisted her.
11The applicant also alleges discrimination on the basis of creed. Although not stated expressly in the Application, the applicant self identifies as a Christian. The allegations in respect of the ground of creed revolve around her views on gay marriage and her ability or inability to work with trans-gendered people. There is very little evidence with respect to how the identified creed is connected to her views on gay marriage or her views on trans-gendered people.
Music Course (Musi3000)
12The applicant alleges that because of allegedly contradictory information provided by two different counsellors she missed the deadline for withdrawing from the course and as a result received a failing grade. The individuals in question were not identified.
13The Application as it relates to this allegation is dismissed. The applicant does not allege any facts that would engage the protections of the Code. She states that she was given incorrect information and as a result did not withdraw from the course in a timely fashion. There is no evidence establishing a connection between the alleged provision of incorrect information and any prohibited ground under the Code.
AK/SOWK3041 - Communication
14The applicant alleges Renita Wong subjected her to unfair discriminatory treatment by deducting a half grade on a late paper in AK/Sowk3041. The applicant also alleges that Ms. Wong was openly critical of her work but offered no positive solution and assistance in response to her special needs.
15The course description provides in part as follows:
This course is designed for students to critically examine professional and personal styles of communication. Students will discuss and develop their interpersonal and professional social worker skills which include self awareness, self-reflection, listening and their capacity to take other’s perspectives, giving feedback, and the ability to engage in constructive conflict.
16The dispute in respect of this course largely turns on the treatment of the first written assignment for this course. A half mark was deducted because the paper was late. The deduction of the half mark had no material effect on the applicant’s final grade. The assignment in question required that Ms. Hsieh analyse her interview of a fellow student and write up a critical reflection/report of the interview.
17The applicant believes her performance in the first paper assignment might be as a consequence of her cognitive disability in that it she might have misunderstood the assignment. The assignment is described in detail in the course outline. The applicant conceded that she did not read the instructions for the assignment, relying instead on what she was told by classmates.
18The paper was handed in on time but was deemed unacceptable because it did not follow the prescribed format. The applicant was offered the opportunity to resubmit the paper on the understanding that a half grade would be deducted. She did so and the grade deduction was made. The paper was worth 15% of the total mark for the course. Her grade was 9.75. The half-grade deduction had no material effect on the final grade for the course.
19Only after the applicant re-submitted the paper did she disclose to Professor Wong her need for some accommodation. Professor Wong was given a letter from the Office dated October 4, 2006. The accommodations suggested in the letter included: student sitting at the front of the class; a note taker; extra time to write exams in an individual room. It is not clear from the evidence whether any of these accommodations were provided to or desired by the applicant.
20The only accommodation requested was the reinstatement of the half mark deducted for her late first paper. Ms. Wong declined this request. She did offer to, and did meet with the applicant outside of the classroom to discuss her work in the course. After the course concluded and the final marks posted, the applicant and Ms. Headley met with Ms. Wong to discuss her performance in the course. It was during this meeting that Ms. Wong learned for the first time that the applicant had suffered a traumatic brain injury and something of the nature of her impairments.
21Although the applicant sincerely believes Ms Wong treated her unfairly the evidence establishes no connection between an identified disability and her performance in this course. The nature of the applicant’s disability was not disclosed until after the course was over and no accommodations were requested, other than the reinstatement of the half mark deduction.
22The applicant agrees she may have misunderstood the first assignment. If she did misunderstand the assignment it may be because she had not read the instructions. In any case as pointed out earlier the half mark deduction had no material effect on her final grade. There is no evidence that the circumstances leading to the deduction of the half mark engages the protections of the Code.
23The applicant requested a re-assessment of her first assignment in this course. The re-assessor would have assigned a lower grade than originally awarded. The applicant relied upon a minor difference in assessment by Ms. Wong and the re-assessor to suggest that she had been treated unfairly. It is not clear how this is the case and more to the point there is no relationship between that minor difference in assessments and any Code related ground.
24The Application as it relates to this course is dismissed.
AK/Sowk3041 – Su 07 Communications
25The applicant retook the Communication course in the summer term 2007. She alleges discrimination by the course instructor Mary O’Regan based on cultural background and because she stated that it would be difficult for the applicant to be a social worker because of her hearing impairment.
26As regards this last allegation, I accept the evidence of Ms. O’Regan that this is not what she said. Rather Ms. O’Regan said that it was important that a social worker hear, in the sense of listen and understand, what was being said by a client. She was not making a comment on the applicant’s hearing impairment or her use of a hearing aid.
27The applicant disclosed her hearing impairment to Ms O’Reagan but did not disclose any other disability or request any particular accommodation. The applicant agrees she had no trouble hearing the tape recordings that the students worked from for the assignment in question. She also agrees that she could have listened to the tapes as often as she wished in writing this assignment.
28The applicant believes that her mark for one assignment was lowered because she misunderstood the term “morning sickness” and that this was unfair. I accept the evidence of Ms. O’Regan that this was not the case and that this one minor error was not material to the mark received for the assignment in question.
29There is no evidence the applicant’s hearing impairment impacted in any way on her performance in this course. Despite her allegation in the complaint, this fact was conceded at the CRC. There is also no evidence that the applicant was subject to any differential treatment as a consequence of her hearing impairment.
30The Application as it relates to this course is dismissed.
AK-SOWK 4020 Issues in the Study of the Welfare State: Power Organization and Bureaucracy
31The applicant alleges Sean Martin graded her unfairly on an assignment which required students to critically analyze a social services agency in which the student has had experience in a helping role. Amongst other things the assignment required that the student “consider the manner in which the agency both limits and enhances the wellbeing of its clients”. The applicant could not critique the agency she had chosen, because she could perceive nothing to criticise and she felt it was unfair of Mr. Martin not to allow her to re-do the assignment. There is no Code violation relied upon in respect of Mr. Martin’s treatment of this assignment.
32The applicant states that she disclosed that she was a person with a disability during discussions with Mr. Martin about this assignment. She was unable to state with any clarity what she told Mr. Martin. Mr. Martin denies he was informed of her disabilities or any academic accommodation was requested at any time. The applicant did not ask the Office for a copy of a letter similar to the one provided to Ms. Wong, for Mr. Martin. Mr. Martin testified that, despite the difficulties the applicant was creating in the classroom, canvassed briefly below, he met with her several times in an effort to assist her.
33I accept Mr. Martin’s evidence on this point. The applicant’s evidence as to what she said was unclear and she did not have a letter from the Office as she had obtained when discussing her disability with Ms Wong. Given the other efforts Mr. Martin made to assist the applicant I am satisfied he would have responded appropriately had he been informed and would have asked her to secure a letter from the Office.
34The applicant also alleges Mr. Martin failed to accommodate her hearing impairment when he did not ensure that she was made aware of the change from a group mark to an individual grade for one of the assignments. There is no evidence that Mr. Martin was aware of the applicant’s hearing impairment. I also accept his evidence that he told the applicant about this change and that she appeared to understand him, although she did not accept his decision.
35The applicant also alleges that Mr. Martin graded her unfairly because of her religious views on gay marriage. While stating she is not a homophobe and has nothing against gay, lesbian and trans-gendered people, because of her religious background she does have some “questions” about gay marriage. She states that the decision to mark a group assignment on an individual basis impacted her final grade for the course and that this was done because her classmates and Mr. Martin disagreed with her wanting to ask questions about gay marriage. This is a violation of her Charter rights to religious freedom and freedom of speech.
36A class mate testified about the applicant’s insistence on debating the issue of gay marriage instead of dealing with the subject matter of one of the major assignments for the course. An instructor of another course testified about similar issues with the applicant wanting to debate the merits of gay marriage, instead of focussing on the curriculum. Mr. Martin testified that as a consequence of the applicant’s insistence on discussing gay marriage in the group, which was perceived by some of them as homophobic, he made the decision to mark the students in that group individually. Mr. Martin stated that this decision did not affect Ms. Hsieh’s final grade in any material way.
37There is no evidence the applicant was subjected to differential treatment because of her religious belief. I accept Mr. Martin’s evidence that the decision to mark this assignment on an individual basis did not affect her final result for the course. I find that the decision to alter the grading scheme for the group assignment was motivated by a good faith attempt on his part to create an environment for the other members of the group to get on with the work at hand.
38The Application as it relates to this course is dismissed.
Discrimination by Amy Rossiter
39When she complained about her unfair grade in FWO6 AK/SOWK the applicant alleges Amy Rossiter, Undergraduate Program Director at the time, told her Ms. Wong had already given her an opportunity to re-do the assignment and that there was nothing more she could do. Ms Rossiter also allegedly called the applicant a homophobe and said she should leave the social work program because Ms. Rossiter did not approve of her questions about trans-gendered people.
40Ms. Rossiter denies this. She did state that it was quite likely that she told the applicant some of her classmates felt that some of her discourse was homophobic. Ms. Rossiter explained she had no authority to order a teacher to allow a re-write and told the applicant this and advised about the procedures to follow if she was unhappy with a grade. Ms. Rossiter agrees that she did speak with the applicant about leaving the social work program given the apparent (to Ms. Rossiter) difficulties she was having with the approach to social work practice required of students at York. She also suggested the applicant reduce her course load as she was taking, as a part-time student, more courses than recommended for a full time student. She also spoke with the applicant about the need to raise her need for accommodations with her course instructors before the course work is done.
41I accept Ms. Rossiter’s evidence. I find that the applicant likely misunderstood what was being said to her. I also accept Ms. Rossiter’s evidence that she had no authority to order a teacher to re-mark an assignment.
42I accept Ms. Rossiter’s explanation that she was concerned the applicant was having trouble with the course content, most importantly the ability to critically self-reflect on her own biases and values. She did raise the possibility of other academic pursuits. There is no evidence of discrimination on the basis of creed disclosed by these facts.
43The Application as it relates to the allegations against Amy Rossiter is dismissed.
ORDER
44For all of these reasons the Application is dismissed.
Dated at Toronto, this 8th day of May, 2009.
“Signed by”
David Muir
Vice-chair