HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Rohit Shah
Applicant
-and-
George Brown College
Respondent
DECISION
Adjudicator: Michael Gottheil
Indexed as: Shah v. George Brown College
Appearances
Rohit Shah ) on his own behalf
George Brown College ) Brenda Bowlby, Counsel
Introduction
1This is an Application filed July 15, 2008, pursuant to section 34 of the Human Rights Code, R.S.O. 1990, c.H-19, as amended (the "Code"). The Application alleges discrimination in the provision of goods, services and facilities on the grounds of race, place of origin, citizenship and ethnic origin.
2The applicant, Mr. Rohit Shah, is a former student of the respondent George Brown College (the "College"). He claims an infringement of the Code in two respects. First, he alleges that during an exchange with Ms. Kooksun Kang, a student services officer in the College's International Centre, Ms. Kang said to the applicant: "You Indians come here all the time and talk nonsense." Second, the applicant alleges that after he reported the incident to College officials, they failed to take his complaint seriously and failed to make meaningful efforts to resolve the matter.
3The College responds by arguing that its officials took immediate and serious steps to investigate the applicant's allegation. It states that after speaking with the applicant, Ms. Kang and a number of other individuals, it could not substantiate the applicant's claim Ms. Kang made the alleged comment.
4For the reasons that follow, I am unable to find in favour of the applicant, and the Application is therefore dismissed.
Background
5A hearing was held on May 4, 2009. I heard from five witnesses: the applicant, Kooksun Kang, John Porter, the College's Director of International Operations and Student Services, Lorraine Trotter, Dean, International and Immigrant Education, and Amandeep Singh, an employee in the International Centre.
6Prior to the hearing, I issued a Case Assessment Direction setting out a number of facts which did not appear to be in dispute. At the commencement of the hearing the parties confirmed that there was no dispute about the following facts:
a) The applicant was an international student at George Brown College and is originally from India.
b) George Brown College is a college of applied arts and technology in Toronto which has a student population of approximately 15,000 students, including approximately 1600 international students.
c) The applicant attended at the International Centre on June 30, 2008 to obtain a certification letter he required for application to an educational institution in England.
d) He spoke with the receptionist, Sarah Campbell, who explained that the applicant needed to fill out a form, and referred him to Ms. Kang. He filled out the form and spoke with Ms. Kang.
e) As a result of the interaction with Ms. Kang, the applicant filed a complaint with the respondent. The respondent's President referred the complaint to John Porter, Director of Operations and Student Services.
f) Mr. Porter conducted an investigation pursuant to the College's human rights policy. He spoke with the applicant, Ms. Kang, and several witnesses.
g) Mr. Porter met with the applicant on July 10, 2009 to report on the results of the investigation. He also provided the applicant with a letter of apology and a Memorandum of Understanding which outlined the findings of the investigation, and the actions the College intended to take.
h) On July 24, 2009 the applicant met with Lorraine Trotter and the President of the College, Anne Sado.
i) Ultimately the applicant was not satisfied with the outcome of the investigation and filed an Application with the Tribunal. The applicant maintains that Ms. Kang made the comment: "You Indians come here all the time and talk nonsense."
7At the hearing, Mr. Porter testified that during his investigation he discovered that there had been previous complaints by students claiming Ms. Kang was rude, although none of those complaints alleged that she used racist or discriminatory language. He stated that after considering the statements of the indivduals he interviewed, he was unable to conclude that Ms. Kang had made the alleged comment. However, Mr. Porter said that the College determined the applicant did not receive the type of courteous and responsive service he was entitled to from Ms. Kang. As a result, the College provided the applicant with a letter of apology, and issued Ms. Kang a verbal and written warning. The results of the investigation were reflected in a Memorandum of Understanding which was prepared and signed by both Mr. Porter and the applicant at the June 10, 2008 meeting.
8The applicant testified that while he signed the Memorandum of Understanding on June 10, 2008, he remained upset about two things. First, the College had identified him as Rohit "Singh" rather than Rohit "Shah" on the Memorandum. Second, Ms. Kang had not signed the Memorandum, nor had she provided an apology. It was for these reasons he decided he was not satisfied with the outcome of the internal investigation. The applicant also testified that in the following weeks, he experienced increasing distress as a result of the incident, which affected his health and relationship with his family.
Decision and Analysis
The Alleged Comment
9The applicant alleges that when he went to the International Centre on June 30, 2008 to obtain a certification letter, Ms. Kang became frustrated and angry. The applicant testified that he needed the certification letter in a particular format, which was different than the standard letter issued by the College. He said Ms. Kang did not seem to understand, nor did she appear willing to listen. The applicant says that after a few minutes of trying to explain, she made the comment "You Indians come here all the time and talk nonsense." At that point the applicant became upset, tore up the sample certification letter he had brought, and walked out of the office.
10Ms. Kang denies she ever made the alleged comment. She says the applicant came to the International Centre to obtain a certification letter and wanted it immediately. She said that when she tried to explain that it would take 2 days, the applicant became angry, tore up a paper he had and walked out. She says she did not make the comment, nor would she ever make such a comment.
11This aspect of the Application turns entirely on an assessment of whether the applicant has met his burden to prove the comment was made. The applicant asserts the comment was made, Ms. Kang denies that she made the comment.
12An assessment of credibility is not an exercise whereby the adjudicator simply listens to the oral testimony of witnesses, observes their demeanour while testifying, and decides who appears to be telling the truth. Assessing credibility involves the consideration of a variety of factors.
13One of the most often citied cases in relation to the factors and approach to assessing credibility is Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). At p. 356-357, the British Columbia Court of Appeal stated:
...Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (...) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.
14In addition to the factors and approach highlighted in Faryna, corroborative evidence from other witnesses, and the extent to which witnesses may have an interest in the outcome of the case, or have a self-interest in testifying for one of the parties, will be relevant considerations in assessing credibility. Also, in determining whether a party as met its burden of proof, the failure to call a witness who has material and direct knowledge of the disputed facts may allow the Tribunal to draw an adverse inference – that the party did not call a particular witness because the witness would not have been supportive to that party's case.
15In the present matter, both the applicant and Ms. Kang were able to describe the events of June 30, 2008 clearly and in detail. Both were consistent in their respective testimony, although the applicant chose not to cross examine Ms. Kang. Both had equal interest in maintaining their respective versions of events.
16The respondent called Mr. Amandeep Singh as a witness to corroborate Ms. Kang. Mr. Singh was Ms. Kang's co-worker in the International Centre. He was a graduate of the College, began working at the International Centre in June 2008, and was still employed at the date of the hearing. He testified that his desk was situated about 3-4 feet from Ms. Kang's.
17He stated that when Mr. Shah initially came into the office, he was away from his desk. He said that when he returned, he saw Mr. Shah speaking with Ms. Kang and overheard some of their conversation. He said that he heard Mr. Shah speaking in a loud voice to Ms. Kang and appeared angry that he would not be able to get the certification letter immediately. He said that he did not hear Ms. Kang make the alleged statement, and that as an individual who himself is from India, had he heard the statement he would have remembered and spoken to Ms. Kang about it.
18Mr. Singh's evidence was not challenged under cross examination. While he testified he did not hear the entirety of the applicant's conversation with Ms. Kang, his testimony did corroborate Ms. Kang's version. I am mindful that he is an employee of the College and Ms. Kang's co-worker, though he did say that he has no social relationship with Ms. Kang outside of the workplace.
19The respondent also led evidence, through cross examination of the applicant, and through Mr. Porter and Ms. Trotter, which attempted to demonstrate inconsistencies in the applicant's claims regarding the effects of the alleged incident. For example, the applicant claimed that he suffered serious psychological and emotional distress as a result of the alleged comment. He claimed that he was so profoundly affected that he was unable to work or support himself. The respondent argued that the applicant neither raised these alleged effects of the incident with Mr. Porter and Ms. Trotter during the internal investigation, nor did the applicant appear particularly distressed when they met with him. The applicant provided no medical evidence to support his claims, though he did say that as an international student, he did not have medical insurance, and did not have the resources to obtain medical reports.
20The applicant also claimed that as a result of the alleged incident, and the emotional distress it caused, he became estranged from his family. The respondent argued that this claim simply did not make sense, that the applicant's family would disown him because he was subjected to a discriminatory comment.
21I do have considerable difficulty in accepting the claims made by the applicant of the effects of the alleged comment. I do not suggest that the nature of the alleged comment is so trivial as to doubt that an individual could be upset by it. Rather, the evidence before me does not support that the applicant was in fact so distressed, so emotionally damaged, that he suffered the effects he claims.
22In assessing the impact of this finding, I am mindful that the challenge to the applicant's credibility by the respondent in this regard relates to the alleged effects which arose in the weeks following June 30, 2008, not directly to his claim that Ms. Kang made a discriminatory comment. The applicant reported the alleged comment the same day he claims it was made, and his version of what transpired between him and Ms. Kang remained consistent throughout, including during his cross examination. An adjudicator may find a witness is not credible on a particular point, but credible on another. A lack of credibility on a collateral matter is a factor to consider, but is not determinative in itself.
23In the end however, I am left with two competing versions of what was said on June 30, 2008. In a civil case, such as an Application before the Tribunal, the applicant has the onus of proving, on a balance of probabilities, that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred, or as it is sometimes described, the applicant must demonstrate a "50% plus one" probability. I am not satisfied that he has done so.
24The applicant was not able to undermine Ms. Kang's testimony, and more importantly, the evidence of Mr. Singh who corroborated Ms. Kang. Further, the applicant's overall credibility was undermined by his claims of serious emotional and psychological distress cause by the alleged incident, claims which I find were not supported by the evidence. For these reasons, I find the applicant has not met his burden of proving the comment was made.
Failure to Investigate
25The applicant alleged that the College failed to properly investigate and take his complaint seriously. As noted above, he points to the fact that when Mr. Porter presented him with a proposed Memorandum of Understanding, it indicated the applicant's name as Rohit "Singh" rather than Rohit "Shah". The applicant also claims the failure of Ms. Kang to sign the Memorandum and offer an apology is indicative of an inadequate investigation.
26Mr. Porter testified that at the July 10, 2008 meeting, he acknowledged the error in the Memorandum, and apologized. Mr. Porter explained that he had confused Mr. Shah, the applicant, with Mr. Singh, the witness. In respect of Ms. Kang not signing the Memorandum and not offering an apology, Mr. Porter explained that in the circumstances, neither he nor the College were able to force Ms. Kang to do what the applicant wanted. He said that based on his investigation, the College took certain disciplinary steps against Ms. Kang, but it had no authority to force her to apologize..
27In his testimony and closing argument, the applicant said that he had no difficulties with Mr. Porter and the manner in which he conducted the investigation into his complaint. He agreed that Mr. Porter approached the investigation in a serious and timely way.
28In my view, the College did indeed handle this matter in a completely appropriate way. It had a comprehensive human rights and complaints policy. The applicant complained to the President of the College on the evening of June 30, 2008. On July 1, 2008, a statutory holiday, the President referred the matter to Dale Hall, Advisor to the President, Equity, Diversity and Human Rights, and to Dean Trotter. Mr. Porter was assigned the responsibility to investigate, and immediately began to work on the file. He contacted the applicant on July 1, 2008 and set up a meeting for July 4, 2008. He interviewed Ms. Kang and all the persons who were identified as individuals who may have relevant knowledge of the alleged incident. He reported back and concluded his investigation on July 10, 2008. Mr. Porter prepared a Memorandum of Understanding which summarized the results of the investigation and outlined specific outcomes. He provided the Memorandum to the applicant.
29Although the applicant signed the Memorandum, he later decided he was not satisfied with the outcome, and followed up with the President. As a result, a meeting was scheduled with the applicant, the President and the Dean for July 24, 2008.
30It is clear the College responded and investigated in a serious, sophisticated and complete manner. I do not accept, and indeed the applicant did not maintain, that the misspelling of his name, while upsetting, demonstrated a failure of the College to take his complaint seriously. I also do not accept that the failure of Ms. Kang to sign the Memorandum or apologize means the College's response to a complaint of discrimination was inadequate.
Conclusion
31For the reasons set out above, this Application is dismissed.
Dated at Toronto this 26^th^ day of June, 2009.
"Signed by"
Michael Gottheil
Chair