HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kyoko Hattori
Applicant
-and-
University of Ottawa
Respondent
INTERIM DECISION
Adjudicator: Sherry Liang
Indexed as: Hattori v. University of Ottawa
1This is an Application filed on October 30, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The Application alleges discrimination in the areas of services, goods and facilities, contracts and employment, on the grounds of race, colour, ancestry, place of origin, citizenship, ethnic origin and disability.
2On March 12, 2010, the respondents named in the Application filed a Request for an Order During Proceedings seeking the removal of the personal respondents from the proceedings. On April 29, 2010, the applicant filed a Request for Interim Remedy. The parties have filed Responses to each Request. On May 12, the applicant filed a declaration and additional submissions on her Request. This Interim Decision deals with both Requests.
BACKGROUND
3The applicant, who identifies as a citizen of Japan and a person of Japanese ethnic and cultural background, has been a doctoral student with the Department of Psychology at the respondent University since September 2003. She was admitted to a program of graduate studies of four years’ duration, and initially given a scholarship for four years. In 2007, the applicant had not yet completed her studies and requested and was granted a two-year extension of her funding. In 2009, the applicant requested additional financial support, and was turned down.
4The University states that the standard duration of a Ph.D. program in clinical psychology is four years and the maximum duration is six years. The University states that the applicant was granted a two-year extension on her funding on an exceptional basis in 2007, and that the applicant was told in 2009 that she was no longer eligible for any of the University’s funding programs. However, the applicant has been given a time extension to complete her program beyond the standard maximum of six years.
5The applicant alleges that her course of studies has been prolonged as a result of her physical and mental condition, aggravated by the University’s adverse treatment of her on the basis of race and failure to appropriately accommodate her disabilities. The applicant states that she requires approximately one more year to complete the clinical component of her program, and requires ongoing accommodation, including additional financial support, in order to be able to finish her studies. She states that although the University has allowed her to extend the deadline for completion of her program, she has not been given additional funding.
6The applicant also alleges that in June 2009, she was denied a teaching position for reasons relating to her language proficiency, which she states is another example of adverse differential treatment against her on the basis of her racial or ethnic background.
7As a remedy, the applicant requests financial compensation reflecting a year’s salary as a part-time teacher, a year’s tuition and other expenses. She also seeks financial aid and/or waiver of all tuition and fees until graduation. The applicant also seeks apologies from the individual respondents named in her Application as well as the University.
REMOVAL OF PERSONAL RESPONDENTS
8In the Application, the applicant named as respondents the University, George Fouriezos, Gary Slater, Margaret Moriarty and Irena Makaryk.
9George Fouriezos is the Director, Undergraduate Program at the University’s School of Psychology in the Faculty of Social Sciences. The applicant alleges that Dr. Foriezos discriminated against her in denying her a teaching position based on her refusal to agree to spontaneous oral and written language tests.
10Gary Slater is the Dean of the Faculty of Graduate and Postdoctoral Studies (“FGPS”) at the University. Margaret Moriarty is the Assistant Dean and Secretary General of the FGPS. Irena Makaryk is the Vice-Dean of the FGPS. The Application alleges that the FGPS, through its officials, failed to act promptly on her request for an extension of her program (which was approved in August 2009), and placed unreasonable terms and conditions on the extension. Further, her request for additional funding was denied by Dr. Slater in August 2009. The applicant alleges that Dr. Moriarty suggested that instead of paying international fees, she should change her residency status to enable her to pay tuition fees applicable to naturalized residents of Canada.
11The respondents ask that the personal respondents be removed from the proceeding. The applicant opposes the Request.
12The University states that it accepts full liability for these employees who were merely acting as agents of the institution in the fulfilment of their duties. It submits that the applicant’s allegations are most appropriately directed at the institution and not the individuals, as her overarching claim is one based on a pattern of alleged discrimination by various entities and procedures of the University as a whole. There is no question as to the University’s capacity to provide a remedy if an infringement of the Code is found. The University submits that from a remedy perspective and an evidentiary perspective, the applicant would not be prejudiced by removal of the individual respondents.
13The applicant states, among other things, that her allegations are not based simply on systemic policies which were implemented through the personal respondents, but also impugns their conduct specifically. It is alleged that some of the respondents made decisions that were not authorized by corporate policy or disregarded corporate policy.
14The applicant submits that maintaining the Application against the personal respondents will increase the likelihood that they will testify or their own volition or be called by the Tribunal and also creates a procedural right of disclosure from the individually named persons. The applicant also states that if the personal respondents are removed, the applicant loses the opportunity to have a finding of responsibility against the named individuals for actions that are not a systemic function of their position, but personally motivated decisions that run counter to the policies of the University respondent.
15In Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal set out the following non-exhaustive list of factors that may be helpful in assessing whether a personal respondent should be removed:
Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?
Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?
Would any prejudice be caused to any party as a result of removing the personal respondent?
16Having regard to the considerations described in Persaud and other decisions of the Tribunal, the Tribunal finds it appropriate to remove the personal respondents. There is no suggestion that they were not acting in the course of their employment. Whether it is true, as alleged, that some of their actions were not authorized by corporate policy, this is not in itself a reason to continue the proceeding against them. The organizational respondent has accepted vicarious liability for all the actions of the personal respondents and I am satisfied that it is capable of remedying any infringement of the Code if liability is established.
17It may be said that the actions or decisions of the personal respondents will be central to the issues in the Application, but this is true of many Applications in which responsibility ultimately rests with an organizational respondent. Decisions or actions taken by organizational respondents are necessarily effected through individual employees or officers, acting in the course of their employment. I agree with the respondents’ submissions that although the allegations impugn the conduct of some of the individual respondents, the overarching claim is one based on a pattern of alleged discrimination by various entities and procedures of the University as a whole.
18I also see no reason why the removal of the individual respondents will cause any procedural unfairness to the applicant. She can require their evidence if she believes they have relevant testimony and are otherwise not called as witnesses, and request that they produce documents relevant to her Application if they are not otherwise produced.
19The fact that the applicant seeks apologies from the individual respondents as part of her remedies is not a strong consideration in deciding whether to remove them as parties. As the Tribunal stated in Abdallah v. Thames Valley District School Board, 2008 HRTO 230:
Historically, the jurisprudence of this Tribunal has generally declined to order parties to provide an apology on the basis that such orders are viewed as inappropriate or an ineffective remedy and raise potential freedom of expression concerns; see summary of caselaw in Turnbull v. Famous Players, 2001 CanLII 26228 (ON H.R.T.), (2001) 40 C.H.R.R. 333 at para. 264.
20All the remaining remedies being sought by the applicant are within the power of the University to give effect to if ordered by the Tribunal: see also Lawrence v. Toronto Police Services Board, 2010 HRTO 161.
21In sum, it is not necessary to involve the individual respondents as parties in order to have a fair, just and expeditious resolution of the merits of the Application. The style of cause is amended accordingly.
REQUEST FOR INTERIM REMEDY
22It is not in dispute that the applicant currently owes more than $7,000 in unpaid tuition fees. The applicant requests as an interim remedy an “immediate injunction against the University of Ottawa from requiring the Applicant to pay fees to the University, which include tuition and ancillary fees, until resolution of the Application by the Tribunal.” The only supporting document filed with the Request is a letter from a doctor describing the applicant’s mental and physical condition. The doctor sets out the applicant’s description of her dispute with the University and concludes: “In my psychiatric opinion, Ms. Hattori’s mental and physical health are being undermined by this situation.”
23As indicated above, following the University’s Response to the Request, the applicant filed a declaration describing her financial circumstances. It is unnecessary for the University to respond to the new declaration, given the Tribunal’s determination of the Request.
24In the applicant’s submissions, she states that if the interim remedy is denied, she will “continue to face constant queries, updates and financial negotiations that will reinforce the injustice she has suffered and the associated feelings with same…” She states that she does not have the funds to pay “any manner of payment plan of her tuition fees without borrowing from other sources.” She submits that suspension of the requirement to pay her tuition fees in whole or in any part would eliminate a very serious stressor in her life.
25The applicant further states that removal from her course of study will occur if she does not comply with the University’s request for payment, thereby temporarily or permanently foreclosing the possibility of completion of her doctorate. In her recently-filed declaration, the applicant describes her current financial circumstances.
26The applicant submits that there is no prejudice to the University in that if her Application is ultimately unsuccessful, she will be responsible for paying outstanding fees and the University will be reimbursed.
27The University submits that there is no evidentiary and legal foundation for the request. At the time of its Response, the only declaration filed was a letter by a doctor, the bulk of which, in the University’s submission, recited information provided by the applicant.
28In any event, the University submits that it would be manifestly unjust to allow one student the possibility of continuing her studies without any payment being made, contrary to the reality faced by all other students. Further, referring to a declaration made by its Assistant Director of Student Accounts, the University states that it has adopted flexible and sensible practices to allow students some additional time to make the necessary payments when financial difficulty arises.
29The declaration filed by the University confirms that the applicant is currently in arrears of some $7,000 in the payment of her tuition fees. It describes how a “block” is placed on a student’s account when the student is indebted to the University, preventing the student from registering for other courses. However, when a block is put on a student’s account, the University has some flexibility to allow the student to continue studies despite the indebtedness. Its practice is to require the student to, at the very least, make a sizeable payment on the amount owed, and arrangements are usually made for a payment plan.
30In the applicant’s case, the applicant had a block placed on her account but when she made a payment of $1,000 on March 3, her account was temporarily unblocked to permit her to register for the winter semester. Since then, she has not made any payment nor has she approached the University to propose a payment plan. Her student account is therefore currently blocked and she cannot register for any courses.
Decision
31Rules 23.2 and 23.3 of the Tribunal’s Rules of Procedure, relating to requests for interim remedies, state:
23.2 Tribunal may grant an interim remedy where it is satisfied that:
a) the Application appears to have merit;
b) the balance of harm or convenience favours granting the interim remedy requested; and,
c) it is just and appropriate in the circumstances to do so.
32The Tribunal will assume, without deciding, that the Application meets the first criterion above. In the circumstances of this case, it has not been established that the balance of harm or convenience favours granting the interim remedy requested, or that it is just and appropriate in the circumstances to do so.
33The Tribunal has stated that an applicant seeking an interim remedy has a significant onus to meet to demonstrate that the request meets the three elements in Rule 23.2 and is necessary to further the remedial objects of the Code: see TA v. 60 Montclair, 2009 HRTO 369.
34In Chopra v. Kratiuk, 2009 HRTO 109, the Tribunal described the extraordinary nature of interim remedies:
….In a request for interim remedies, an applicant is asking the Tribunal to take an extraordinary step. He or she is asking the Tribunal to order a respondent to take or not take certain actions, before the merits of the Application has been decided. Even before any violation of the Code has been proven, the applicant wishes the Tribunal to intervene and provide remedies.
There will be cases where such an extraordinary step is justified. However, it should not be taken without the proper evidentiary and legal foundation, part of which is reflected in the materials an applicant must file under Rule 23.
35I am not convinced that the interim remedy requested is necessary to further the remedial objects of the Code. The material does not establish that the remedies the applicant requests (which are primarily monetary) would be unavailable at the end of the hearing, absent the interim remedy. Although the applicant has expressed concern that she will not be permitted to complete her studies (she states, without supporting evidence, that she is at risk of being “deregistered” as of May 18), the University has indicated that it can exercise flexibility in dealing with students who are in arrears on tuition payments. Even accepting that the applicant has limited funds, she was able to borrow money in order to make a payment in March and there is no indication that this route is unavailable to her now. I am not convinced, on the material before me, that the applicant is unable to make any proposal for repayment that would be acceptable to the University. There is no indication that the applicant and the University will not be able to agree on a schedule for repayment to enable the applicant to continue her studies.
36There is something to the applicant’s submission that suspending the collection of the applicant’s tuition fees will not cause significant prejudice to the University’s overall finances. On the other hand, the interim remedy will effectively require the University to continue to fund the applicant’s education, with no certainty of repayment if its position on the Application is vindicated.
37As to the letter from the applicant’s doctor, the Tribunal appreciates that the uncertainties surrounding the applicant’s education may well be affecting her health. Without minimizing the seriousness of these concerns, they are similar to the circumstances faced by many other applicants alleging discrimination before the Tribunal. On balance, these concerns do not support granting the extraordinary remedy sought, before a decision on the merits of the Application has been made.
38Having regard to all of the above, I find that the balance of convenience does not favour granting the interim remedy. I am also not convinced that it would be just and appropriate in the circumstances to do so.
39In conclusion, the Request for Interim Remedy is denied. Given the consent of the parties, this matter will be scheduled for mediation.
40I am not seized of this matter.
Dated at Toronto, this 17th day of May, 2010.
“Signed by”
Sherry Liang
Vice-chair