HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Nalini Rao
Applicant
-and-
McMaster University
Respondent
A N D B E T W E E N:
Nalini Rao
Applicant
-and-
McMaster Association of Part-Time Students
Respondent
A N D B E T W E E N:
Nalini Rao
Applicant
-and-
McMaster Students Union Inc.
Respondent
INTERIM DECISION
Adjudicator: Mark Hart
Indexed as : Rao v. McMaster University
APPEARANCES BY
Nalini Rao, Applicant ) David Baker, Counsel and ) Nastaran Roushan, Student-at-Law
) George Avraam and
McMaster University, Respondent ) Lisa Stam, Counsel, and
) Dina Maxwell, Student-at-Law
McMaster Association of Part-Time ) Suzan Fraser, Counsel
Students, Respondent )
McMaster Students Union Inc., Respondent ) Derek Collins, Counsel
1These are three Applications, all dated June 28, 2009, made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaints were filed with the Ontario Human Rights Commission (the “Commission”) on May 13, 2007, and were amended on June 16, 2008.
2The purpose of this Decision is to address preliminary requests made by the respondents McMaster University and the McMaster Association of Part-Time Students (“MAPS”) for dismissal of the Applications against them pursuant to s. 45.1 of the Code or as an abuse of process, as a consequence of a decision and order of a Hearing Panel appointed under the University’s Anti-Discrimination Policy dated August 1, 2006. The respondent MAPS also sought dismissal of the Application against it for delay pursuant to s. 34(1) of the Code; however, in light of my disposition of the former issue, it is not necessary for me to address the delay argument.
3A hearing was held on January 27, 2010, for the purpose of hearing oral submissions from the parties on these preliminary issues. The parties also filed extensive written submissions prior to the hearing, which have been reviewed and considered by me in rendering this decision.
Background
4The applicant is a person with a disability, who suffers from a fractured back, two torn rotator cuffs and chronic pain. She attended McMaster University as a student between May 1996 and August 2001, and then again between May 2004 and April 2008. The focus of her complaints relates to the period between May 2004 and April 2008.
5The applicant was designated as a part-time student at the University during the period from May 2004 to April 2008, on the basis that she did not meet the requirement for full-time student status of being enrolled in 24 or more units of degree credits during the Fall and Winter terms of the academic years at issue. While there is some dispute between the parties as to when the University received medical documentation to support this, the applicant states that she was unable to take more than 18 units of degree credits during the Fall and Winter terms of any of the relevant academic years due to her disabilities and this is supported by medical documentation dated December 2, 2005.
6The applicant states that because of her inability to take the 24 units of degree credits required for full-time status, she was prevented from accessing scholarships, bursaries, grants, awards, and other benefits and opportunities reserved solely for full-time students.
7The respondent MAPS represents the interests of undergraduate part-time students and certificate/diploma students at McMaster University. The McMaster Students Union Inc. (“MSU”) represents the interests of full-time students at the University. Prior to September 1, 2007, any undergraduate student who was enrolled in 17 units of degree credits or less during the Fall and Winter terms of the academic year was considered to be within the jurisdiction of MAPS, while students enrolled in 18 or more degree credits were within MSU’s jurisdiction. Effective September 1, 2007, MAPS and MSU passed a transferability agreement which allowed a student with a disability who is registered with the University’s Centre for Student Development (“CSD”) and who is confirmed by the CSD to be restricted to less than 18 units of credit in the Fall and Winter terms of an academic year to transfer her or his student government membership from MAPS to MSU.
8During each of the academic years at issue in this proceeding, the applicant took at least 18 units of credit at the University. However, in the 2004-05 and 2005-06 academic years, the applicant took some of her degree credits through the McMaster Centre for Continuing Education, which did not count toward her eligibility for MSU membership. As a result, during these two academic years, the applicant was a member of MAPS. For the 2006-07 and 2007-08 academic years, the applicant took 18 units of degree credits in University courses and as such was eligible to be an MSU member.
9The applicant states that, as a consequence of her membership in MAPS in the former two academic years, she was denied significant benefits available to students who were MSU members, including unlimited transport on the Hamilton Street Railway and the option of enrolling in a comprehensive health and dental plan.
The Hearing before the University’s Anti-Discrimination Tribunal
10On November 29, 2005, the applicant submitted a formal complaint under the University’s Anti-Discrimination Policy, alleging that she was subject to discrimination by the University, MAPS and MSU because her disabilities prevented her from being recognized as a full-time student, thereby depriving her of significant opportunities, including scholarships, bursaries, grants, awards, and other significant benefits and advantages granted solely to full-time students.
11The University’s Anti-Discrimination Policy contains procedures for dealing with discrimination complaints, which ultimately provides for a hearing before a tribunal comprised of three members selected from a list of appointees under the Policy. A tribunal conducting a hearing under the Policy is required by the Policy’s terms to follow the procedures set out in the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, unless there is a conflict with specific procedures detailed in the Policy. The Policy provides for notice to the parties of the hearing, the production of a hearing record, the right of the parties to be represented by legal counsel, examination and cross-examination of witnesses, and the opportunity for opening statements and closing submissions. The tribunal also has the power under the Policy to compel the attendance of witnesses and to order production of documents.
12The hearing in relation to the applicant’s complaint under the Policy was held over two days, on May 17 and June 23, 2006. The applicant was represented by legal counsel at the hearing and presented evidence from herself and two other witnesses in support of her case, including evidence from an expert witness. The University called one witness, the Vice-President (Academic), in response. The tribunal heard and considered submissions from counsel for the parties, including receipt of relevant caselaw.
13The hearing did not proceed as against MAPS and MSU. The tribunal’s decision states as follows (at p. 2):
With respect to benefits conferred by the Respondent MSU, and [MAPS] the Appellant, MSU and MAPS have by agreement resolved their dispute without reference or involvement of the tribunal. While this is quite in order and encouraged, it removes the matter as a dispute before this tribunal and, accordingly, the tribunal has heard no evidence and has been asked to decide no issues in respect of these parties and, accordingly, will not do so. The sole parties remaining before this tribunal are therefore the Appellant and the Respondent, Dr. Frederick A. Hall, on behalf of McMaster University.
14In its decision, the tribunal considered whether the applicant had experienced differential treatment because of her disabilities in relation to her part-time student status at the University, and whether this differential treatment resulted in an adverse impact on her as an individual or member of a group. The tribunal found that the fact that the applicant’s disability directly prevented her from taking more than 18 units of degree credits would amount to differential treatment based upon a disability. However, the tribunal also found that factually, such differential treatment had not yet occurred given that the medical restriction limiting her to no more than 18 units was only established in December 2005 and the University was only made aware of this restriction during the course of the 2005-06 academic year.
15Nonetheless, the tribunal proceeded to consider whether the applicant had experienced any adverse impact as a result of the differential treatment. While the tribunal noted that the applicant had testified forcefully about her personal feelings of exclusion, isolation and devastation at not being considered to be a full-time student, the tribunal held that adverse impact needed to be established on an objective basis rather than on the basis of purely subjective feelings.
16The tribunal concluded that it did not have sufficient evidence before it to establish on an objective basis that the applicant experienced adverse impact as a result of being classified as a part-time student as opposed to a full-time student. While the tribunal found that it was true that the applicant was denied access to bursaries and scholarships available only to full-time students, she had received bursaries and scholarships which were only available to part-time students. The tribunal held that in order to make a proper determination as to adverse impact, it would need to consider and hear evidence on all areas of benefits and costs of full-time and part-time status, including scholarships, bursaries, student fees, student services and rights. The tribunal held that in the absence of such evidence, it “could not easily discern the material differences in order to find that one student status (full-time or part-time) has objectively ‘better’ benefits”. In the absence of such evidence, the tribunal found that the applicant had not established adverse impact as a result of any differential treatment.
17Nonetheless, despite finding that the University had not discriminated against the applicant, the tribunal suggested that the University review the issue of the credits required for part-time versus full-time status and give consideration as to whether there is a workable process by which the University might hear and decide requests of students with a documented disability, who are precluded from taking 24 units but who are working to their full capacity, and who wish to be classified as full-time students.
The University’s Request for Dismissal pursuant to s. 45.1 of the Code
General Principles
18Section 45.1 of the Code states:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
19In Campbell v. Toronto District School Board, 2008 HRTO 62, this Tribunal held that section 45.1 should be considered in two parts:
was there another proceeding?
if so, did it appropriately deal with the substance of the application?
20I find the following principles as set out in Jarvis v. Sheet Metal Workers’ International Association, 2009 HRTO 121 to be helpful in the determination of the issue before me (at paras. 44-45):
Some of the guiding principles the Tribunal has considered in applying section 45.1 are:
Section 45.1 gives expression to a legislative intent to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere;
The discretion given to the Tribunal in s. 45.1 is at least as broad as the doctrines of issue estoppel and abuse of process;
In determining whether another proceeding has appropriately dealt with the substance of the application, the Tribunal should not be overly technical;
The Tribunal does not act as an appellate court from the decisions of other tribunals, and the Tribunal need not be satisfied that it would have reached the same conclusion as that reached in the other forum.
Although the discretion given to the Tribunal under section 45.1 is broad, the Tribunal’s exercise of the discretion is based on the application of certain factors to the circumstances of each case. Some of the factors the Tribunal has considered in cases under section 45.1 are:
The purpose of the other statutory scheme and its relationship to the Code;
Whether the other proceeding decided the same questions;
Whether human rights principles were applied in the other proceeding;
The nature of the process applied in the other proceeding and the availability of procedural safeguards.
Was there another proceeding?
21In Campbell, supra, the Tribunal stated that a “proceeding” for the purpose of section 45.1 includes, at the very least, an adjudicative process established under a statutory regime.
22The authority to establish the tribunal under the University’s Anti-Discrimination Policy emanates from the authority granted to the University under the McMaster University Act, 1976, C. 98. While there is some question as to whether the Statutory Powers Procedure Act strictly applies to a hearing before this tribunal, there is no doubt that the exercise of this tribunal’s authority is an exercise of a statutory power amenable to judicial review.
23The applicant relies upon this Tribunal’s decision in Maurer v. Metroland Media Group, 2009 HRTO 200 for the proposition that
a purely private, internal process (…) without formal guarantees of procedural fairness, impartiality or independence, cannot deprive the applicant of the right to pursue a remedy under the Code.
24However, it is important to recall the context in which the Maurer decision was made. The Maurer case dealt with a private employer’s internal Harassment Policy, under which complaints of discrimination or harassment were investigated by the Human Resources Manager with a provision for an appeal to “the Company”. The applicant’s complaint in that case was investigated, after which there may have been some agreement on the resolution of her complaint.
25In my view, a purely private, internal investigation process of this nature is entirely distinguishable from the full hearing process conducted by the tribunal in the instant case, whereby significant procedural rights were afforded to the parties, in the context of the exercise of a statutory power amenable to judicial review.
26The applicant also raises the issues of “institutional bias” as a reason that the hearing before the tribunal should not be considered to be a “proceeding”. The applicant takes the position that all members of the Hearing Panel under the University’s Anti-Discrimination Policy lack institutional independence, as they have “a material interest in the outcome of any decision against McMaster by virtue of their appointment by McMaster University”. It is asserted that due to the deep-seated interests of these tribunal members in any complaint involving McMaster University, the test for bias has been established, namely that
a reasonable person, viewing the matter realistically and practically, and having thought the matter through, would conclude that the decision-makers, either consciously or unconsciously, would not decide fairly.
27In order to assess this argument, it is important to understand the composition of the Hearing Panel established under the University’s Policy, from which the tribunal members were drawn. The Hearing Panel consists of six non-teaching staff members appointed by the University’s Board of Governors, and six members of the teaching staff, three undergraduate students and three graduate students appointed by the Senate. In order to establish a tribunal to hear a complaint, the Chair of the Hearing Panel selects a slate of six names to be presented to the parties, who are afforded the opportunity to object to any of these proposed individuals on the basis of bias, conflict of interest or for any other valid reason. From the remaining names, a panel of three members is selected as the tribunal.
28In the instant case, the tribunal that conducted the hearing was comprised of an Associate Professor, a non-teaching staff member, and an undergraduate student. No objection was taken by the applicant as to any of these individuals, nor was any issue of bias raised before the tribunal.
29I find it difficult to comprehend how it can be said that these three individuals have any significant or sufficient material interest in the outcome of a complaint against the University merely because they were appointed by the University to the Hearing Panel under the Policy. In this regard, I agree with and adopt the following passage from the decision of Justice Nordheimer in Strofolino v. University of Toronto (2001), 2001 CanLII 27985 (ON SC), 55 O.R. (3d) 138, at para. 25, which was made in the context of addressing a lack of independence by members of a Grievance Review Panel established by the University of Toronto and its Faculty Association:
I do not accept the central contention of the applicants that, because the members of the Grievance Review Panel are all members of the faculty, or even of the Faculty Association, they are therefore partial and not independent. As counsel for the Faculty Association pointed out, faculty members enjoy the protection of academic freedom and are free, indeed are encouraged, to be critical of the University and its members along with all of their practices and procedures. I assume that this freedom includes the freedom to also criticize their Faculty Association. The University is a large institution and it has a large faculty. I have no reason to believe that those faculty members, who become members of the Grievance Review Panel, appointed by the President of the University after consultation with the Faculty Association, would not consider themselves free to decide whatever matter might come before them without fear or favour of either side. Further, there seems to me to be very good reason why the parties would want to have such grievances dealt with [by] members of their own institution as opposed to outside parties, both for reasons of confidentiality and of sensitivity to the issues that will be raised and decided. I do not accept, therefore, the applicants' central contention that the members of the Grievance Review Panel do not represent proper persons to act as arbitrators.
30In my view, the same considerations would apply to the Hearing Panel members appointed under McMaster University’s Anti-Discrimination Policy. As stated by Nordheimer J., I have no reason to believe that the individuals appointed to hear the applicant’s case would not consider themselves free to decide the matter before them without fear or favour of either side. The issue before the tribunal was whether the 24 unit requirement for full-time student status discriminated against the applicant because of her disability. It is hard for me to imagine how a reasonable person thinking the matter through could conclude that, simply because these three individuals were appointed to the Hearing Panel by the University and worked for or attended the University, they would have any material interest in the outcome of this issue or would feel so beholden to the University as to have that consciously or unconsciously affect their judgment.
31Accordingly, I find that the tribunal was not compromised by institutional bias. As a result of this conclusion, it is not necessary for me to address the respondent’s alternative argument regarding the applicant’s failure to raise bias before the tribunal.
32For all of these reasons, I find that the hearing before the tribunal under the University’s Anti-Discrimination Policy was a “proceeding” within the meaning of s. 45.1 of the Code.
Was the substance of the Application appropriately deal with?
33The next issue is whether the substance of the application was appropriately dealt with. In this regard, there is no dispute that the Application arises from substantially the same facts as the complaint before the tribunal and that the substance of the issues raised is substantially the same. The issue for me to determine, then, is whether the substance of the Application was “appropriately dealt with”.
34The applicant raises a number of bases upon which she asserts that the substance of her Applications was not appropriately dealt with by the tribunal. First, she submits that the tribunal did not even have jurisdiction to hear the complaint under the terms of the Policy, as her complaint was against McMaster University as an institution. The applicant relies upon the provision of the Anti-Discrimination Policy which states that complaints may be filed against “any member(s) or employee(s) of the University” or “others on University property”. “Members” of the University “are defined as all administrative, research, teaching and non-teaching employees of the University as well as students”. As the University is neither a “member” as defined under the Policy nor a person on University property, the applicant submits that the tribunal had no jurisdiction over the University.
35The tribunal’s decision is expressed to be “in the matter of the complaint of Ms. Nalini Rao against Dr. Frederick A. Hall [and others] under the McMaster University Anti-Discrimination Policy”. However, it is clear from the tribunal’s decision that it regarded Dr. Hall, who was Vice-President (Academic) at the time, to have been named in a representative capacity on behalf of the University. This is consistent with the provisions under the Policy relating to situations where the University acts as the complainant (see ss. 33-36), whereby the University as an institution is pursuing the complaint because individual complainants are unwilling to do so. In such circumstances, it is the appropriate Vice-President or in some cases the President who decides whether to proceed with a complaint on behalf of the University. I also note that s. 17 of the Policy states that “the following individuals or bodies may be the subject of a complaint” (emphasis added) before referencing members of the University or others on University property, which clearly contemplates that a non-individual “body” may be the subject of a complaint.
36As a result, in reading the University’s Anti-Discrimination fairly and as a whole, it is my view that the tribunal did have jurisdiction over the University in relation to the applicant’s complaint, and exercised this jurisdiction through the identification of the Vice-President (Academic) as the individual who would appear before it in a representative capacity on behalf of the University.
37The applicant next asserts that the hearing before the tribunal did not appropriately deal with the substance of the Application because of the limitations regarding the tribunal’s remedial powers. Under the Policy, the tribunal has the power to impose penalties upon any respondent who is a member of the teaching, research or non-teaching staff in any case where discrimination is found, which includes the power to reprimand, recommend suspension or removal proceedings, impose a fine, or to impose other penalties as deemed appropriate. In addition, the tribunal has the power to recommend any appropriate sanction or remedies it deems necessary to guarantee that the behaviour is not repeated.
38As a result, the applicant takes the position that the tribunal had no power to order the University to take the action required to remedy the discrimination experienced by the applicant, since it only has the power to recommend, and that the tribunal also did not have the power to award damages, which are available before this Tribunal.
39The problem with this argument is that it would only be relevant if the tribunal in fact had found discrimination against the applicant. In considering whether the tribunal appropriately dealt with the substance of the Application, I need to address the decision actually made by the tribunal, which was that the applicant had not experienced discrimination, rather than deal with the hypothetical situation of whether the tribunal would have appropriately dealt with the issue if it had found discrimination but had been unable to provide an effective remedy. As a result, I don’t find that any limitation or restriction on the tribunal’s ability to provide a remedy under the Policy is relevant to the issue of whether it appropriately dealt with the substance of the Application.
40The applicant next argues that the tribunal failed to apply human rights principles in making its decision. In this context, the applicant is careful to say that she is not asking this Tribunal to engage in an analysis of whether the University tribunal’s decision was correct or reasonable, as this Tribunal has clearly stated that this is not its role under s. 45.1 of the Code. However, the applicant does invite me to apply the approach taken by the British Columbia Human Rights Tribunal in Rush v. City of Richmond, 2008 BCHRT 62 at para. 76, which I note has been adopted in at least one of this Tribunal’s decisions:
the question of whether a matter has been appropriately dealt with in another proceeding … the appropriate role for the Tribunal is to determine whether the arbitrator proceeded fairly and upon the proper principles, with due consideration of the facts and human rights law relevant to the discrimination issue before him.
41As a result, in my view, the proper approach under s. 45.1 is to consider whether there was any misapprehension by the University’s tribunal as to the relevant human rights principles and law applicable to the issue raised by the applicant, but not to go so far as to consider whether I view the conclusion reached by the tribunal upon application of those principles and law to be correct or reasonable. In other words, it is not this Tribunal’s role under s. 45.1 to behave as if it were an appellate or reviewing court.
42The applicant asserts that there is no legal support for the proposition that adverse impact discrimination only occurs when one establishes disadvantage in all aspects of one’s status, and further asserts that the mere fact that the applicant was excluded from full-time status because of her disability should have been sufficient to establish adverse effect discrimination. I do not agree. In fact, in my view, the approach taken by the tribunal was well-grounded in law and consistent with the concept of adverse effect discrimination as set out in human rights caselaw. The simple point being made by the tribunal is that it is not sufficient merely to establish that the full-time status requirement constitutes differential treatment against the applicant because of her disability, but that there must also be some objective evidence of an adverse impact as a result of this differential treatment.
43In this regard, it is helpful to note the guidance that has been provided by the Supreme Court of Canada as to the definition of discrimination, which has been expressed as follows:
. . . discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed.
Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143
44In other words, discrimination necessarily involves the “adverse effect” of some burden, obligation or disadvantage being imposed on the applicant that is not imposed on others or some withholding or limiting of access to opportunities, benefits, and advantages available to other members of society. What I see the University tribunal as having done is to direct itself to consider whether the evidence had established that as a result of the differential treatment, the applicant had experienced discrimination as a result of some adverse impact or effect of the burdens or disadvantages associated with being classified as a part-time student. What the tribunal also directed itself to consider, again quite appropriately in my view, is that in assessing whether there is any adverse impact or effect, it needed to consider not only the full extent of the burdens or disadvantages associated with part-time versus full-time status but also the full extent of any obligations associated with either status. In my view, the tribunal properly directed itself to the relevant human rights law and principles in so doing.
45The applicant also criticizes the tribunal for not discussing whether the applicant could be accommodated in relation to the number of credits required for full-time status. However, one only gets to an accommodation analysis after it is found that an individual has experienced discrimination. The tribunal never got to that point because, though it found differential treatment, it did not find that the evidence supported the adverse impact required to establish discrimination.
46The applicant is further critical of the tribunal for not discussing the argument that a student with a disability should be recognized as full-time if she or he is taking a full load in accordance with her or his abilities, which is stated to be an imperative consideration in any disability discrimination analysis. The tribunal did clearly recognize and find that the applicant was unable to fulfil the requirement for full-time status because of her disability. In my view, it also is clear from the tribunal’s decision that it recognized that the applicant was taking a full load of courses in accordance with the restrictions imposed by her disabilities. However, in my view, it is faulty logic to thereby say that this necessarily means that the applicant should be designated as a “full-time” student. As stated above, the issue for the tribunal was whether or not the applicant experienced discrimination, and the tribunal, correctly in my view, directed itself that differential treatment was insufficient to establish discrimination in the absence of evidence of adverse impact. To assert that the tribunal should have found that the applicant was entitled to full-time status simply because her disability prevented her from fulfilling the requirements for this status is to say that discrimination should have been found by the tribunal merely on the basis of the applicant establishing differential treatment because of her disability without evidence of adverse impact. In my view, that is not the proper approach to human rights law and principles.
47As a consequence, I find that the University tribunal did direct itself as to the proper and relevant human rights law and principles in addressing the issue before it, and thereby did appropriately deal with the substance of the Application.
48Before leaving this section of the decision, there were two other matters raised by the applicant that I wish to address. First, the applicant questions the human rights expertise of the tribunal members, on the basis that the Policy provides that they will receive “generic human rights training”. The University takes the position that this means only that the tribunal members will not receive information about specific cases before the tribunal, not that they will only receive some kind of superficial human rights training. In any event, the reality is that there are a large number of tribunals which have been found to have rendered decisions that satisfy the requirements of s. 45.1 of the Code without any requirement for evidence or proof as to what specific human rights training the adjudicator received. This Tribunal’s function, once it finds that there was a “proceeding” within the meaning of s. 45.1, is to assess the decision itself as to whether it appropriately dealt with the substance of the Application, not to assess the decision-maker or what amount of training he or she did or did not get.
49Second, the applicant notes that, despite not finding discrimination, the tribunal nonetheless made a recommendation to the University to consider whether there was a process whereby a student with a disability who could not fulfil the requirements for full-time status could nonetheless be designated a full-time student. It is not clear to me how this point contributes to the argument that the tribunal did not appropriately deal with the issue. In my view, for the reasons expressed above, the tribunal did appropriately deal with the issue within the meaning of s. 45.1 of the Code, and the fact that they nonetheless asked the University to consider possible eligibility for full-time status in the absence of a finding of discrimination has no impact on my assessment under s. 45.1.
50As a result, I find that the hearing before the tribunal established under McMaster University’s Anti-Discrimination Policy was a proceeding that appropriately dealt with the substance of the Application within the meaning of s. 45.1 of the Code. Accordingly, the Application against McMaster University is dismissed.
MAPS’ Request for Dismissal
51MAPS takes the position that the Application against it should be dismissed pursuant to s. 45.1 or as an abuse of process on the basis of the statement in the tribunal’s decision that the complaint had been resolved by agreement between the applicant, MAPS and MSU. The statement that the matter had been resolved is repeated several times in the tribunal’s decision and also forms part of the order issued by the tribunal.
52The applicant took the position before me that, contrary to the tribunal’s decision and order, she had not resolved her complaint as against MAPS and MSU. In the written submissions filed with the Tribunal, it is submitted that the applicant simply did not seek a remedy as against MAPS before the University tribunal. With respect, it is clear that more than that happened, as the applicant did not proceed at all as against MAPS or MSU before the tribunal.
53The applicant in her written submissions also takes the position that the tribunal had no jurisdiction to address her issues as against MAPS and MSU. It is not clear to me why this would be the case. The complaint was scheduled to proceed as against two named individuals who were representatives of MAPS and MSU respectively, and the tribunal certainly at least had the power to recommend an appropriate sanction or remedy to guarantee that the behaviour was not repeated. In any event, there is no evidence before me to indicate that the applicant discontinued her complaint as against MAPS and MSU because of any view she may have had as to the tribunal’s jurisdiction. Rather, as noted above, the tribunal’s decision and order states that the complaint as against these two parties was resolved.
54The applicant relies upon the fact that there is no written agreement before me evidencing any resolution of her complaints as against MAPS and MSU. At the same time, MAPS takes the position before me that it ought to be able to rely upon the statements made in the tribunal’s decision and order, which can only have been made based on submissions by counsel appearing for these parties before the tribunal.
55I agree with the position taken by MAPS in this regard. In my view, in the face of the clear statements in the tribunal’s decision and order that the complaints against MAPS and MSU had been resolved, I am not prepared simply to accept the applicant’s assertion that these complaints were not resolved. No evidence has been put before me by the applicant to support her assertion that there was no resolution. In contrast, there is evidence before me that, following the applicant’s complaint and the hearing, both MAPS and MSU took steps to negotiate and ultimately conclude the transferability agreement, which directly addressed the issue raised by the applicant in her complaint. In my view, the fact that these steps were taken provides evidence which supports the tribunal’s statements that the matter was resolved.
56Further, the only medical evidence before me indicates that the applicant was restricted because of her disabilities to taking no more than 18 units of degree credits during a single academic year, and the evidence indicates that the applicant did in fact take at least 18 units (albeit some from the CCE program) during each of the academic years at issue in this proceeding. While the applicant was not eligible to be an MSU member in the 2004-05 and 2005-06 academic years, this was because she took some of her units of credit in the CCE program and not because of her disabilities. As a result, the evidence appears to indicate that the applicant’s disabilities did not prevent her from being eligible to be an MSU member, which may be another reason that she chose to resolve her complaints against MAPS and MSU.
57I agree with the position taken by the applicant that, as the tribunal did not in fact deal with her complaint against MAPS, it would not be appropriate for me to apply s. 45.1 of the Code. However, I find that in the face of the resolution of her complaint against MAPS before the University tribunal, it would be an abuse of process to allow the applicant to proceed with her Application against MAPS before this Tribunal to raise substantially the same issues.
58As a result, I hereby dismiss the applicant’s Application as against MAPS as an abuse of process.
The McMaster Students Union
59The MSU did not take any issue before me regarding the preliminary requests to dismiss made by the other respondents, and did not itself request dismissal of the Application against it.
60Nonetheless, I have the power under the Tribunal’s Rules to define the issues in order to decide an Application. In this case, I am exercising this power to require the applicant to advise within 14 days of the date of this Decision whether she intends to pursue her Application as against MSU and if so, to make submissions as to why it should not be dismissed as an abuse of process or for failure to establish a prima facie case of discrimination in light of the fact that her disabilities do not appear to have prevented her from satisfying the requirement to take 18 units of degree credit in any of the academic years at issue. Upon receipt and review of any such submissions, the Tribunal will advise the parties as to whether any further submissions are required.
Dated at Toronto, this 11^th^ day of May, 2010.
“Signed by”
Mark Hart
Vice-chair