Aberdeen v. University of Toronto, 2010 HRTO 1804

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nepthys Aberdeen

Applicant

-and-

University of Toronto and University of Toronto Campus Police, a Division of the Toronto Police Service

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: September 1, 2010

Citation: 2010 HRTO 1804

Indexed as: Aberdeen v. University of Toronto

1The applicant filed an Application on May 31, 2010, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination and reprisal in the areas of services, goods and facilities on the basis of various Code grounds.

BACKGROUND

2In her May 31, 2010 Application narrative, the applicant alleged that her education was “sabotaged” because of the unfair and discriminatory treatment she experienced while studying at the respondent University of Toronto (“University”). The applicant also alleged that she experienced harassment and brutality at the hands of the respondent University of Toronto Campus Police (“Campus Police”).

3The applicant has been enrolled as an undergraduate student of the University since September 2000 and has actively studied there for seven years. The applicant’s allegations of unfair and discriminatory treatment relate to her general experiences during the course of her studies, and more specifically from her re-entry into the University in October 2006. The applicant’s allegations against the Campus Police relate to events that occurred on June 2, 2009, and resulted in criminal charges against the applicant.

4On July 19, 2010, the Tribunal issued a Notice of Incomplete Application and a Notice of Intent to Dismiss. The Notice of Intent to Dismiss indicated that the Application and narrative describing the incidents of alleged discrimination failed to identify any specific acts of discrimination within the meaning of the Code. The Tribunal directed the applicant to complete her Application and provide submissions regarding the issue of dismissal on or before August 19, 2010.

5On August 3, 2010, the applicant provided further answers to complete her Application and detailed submissions comprising of 159 pages of extended explanation and narrative regarding her allegations.

6The Application has yet to be delivered to the respondents.

DECISION

Social Areas of Employment and Contracts

7While her original Application cited section 1 (services, goods and facilities) as the alleged infringed social area, the applicant’s additional materials also appear to raise the social areas of employment (section 5) and contracts (section 3).

8Based on the materials filed by the applicant, I cannot conclude that there is a relationship between the Code social areas of employment and contracts and the allegations contained in the Application. Accordingly, the Application will proceed only on the basis of section 1 of the Code.

Prohibited Grounds of Discrimination

9In response to Question 5 of in her Application, the applicant cites the following prohibited grounds of discrimination: race, colour, place of origin, ethnic origin, disability, creed, sex and age.

10Based on a careful review of applicant’s narrative and additional submissions, it appears that the applicant’s key concerns relate to alleged mistreatment “on account of sex, race, ethnic origin, and disability”, as these were the only grounds cited in the applicant’s original narrative and introductory paragraphs of the detailed 159 page submissions.

11The applicant clearly feels that she was treated unfairly by the respondents with respect to her gender, race, colour and ethnicity and disability; however, she does not explain how the alleged mistreatment occurred in relation to the Code grounds of creed and age as noted in response to Question 5 of her Application. Specifically, there does not appear to be nexus between her allegations of discriminatory treatment and the grounds of creed and age. Accordingly, the Application will proceed only with respect to the alleged grounds of race, colour, place of origin, ethnic origin, disability and sex.

Delay

12Section 34 of the Code provides:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

13As previously noted, the allegations made in the Application relate to the applicant’s (1) general experiences during the course of her studies, particularly since 2006 and (2) specific experience flowing from the events of June 2, 2009. With respect to the first component of her allegations, the applicant states that she has “continually suffered” mistreatment and discrimination at the University for seven years. Based on the information provided by the applicant in her narrative and submissions, there appears to be an issue of delay with respect to the allegations made in the first component of her Application.

14The parties will be provided with an opportunity to file written submissions with respect to the issue of delay.

Section 34(11) Dismissal and/or Deferral

15The applicant’s additional materials indicate that there are on-going criminal and civil proceedings regarding the allegations against the Campus Police.

16Section 34 (11) of the Code provides:

A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

17Further, section 45 of the Code confirms the Tribunal’s authority to defer consideration of an application. Under Rule 14 of the Tribunal’s Rules of Procedure, the Tribunal may defer consideration of an application, on its own initiative or on the request of a party, after providing notice of its intention to do so to all parties and giving them an opportunity to make submissions. Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

18The parties will be given an opportunity to file submissions regarding whether or not this Application is barred, pursuant to section 34(11), because of a civil court action with respect to the Code allegations, and/or, whether or not this Application should be deferred, pursuant to section 45(1) pending the conclusion of concurrent civil and/or criminal proceedings.

SUMMARY

19This is not a final decision regarding the Tribunal’s jurisdiction in respect of this Application. The parties are directed to make submissions on the issues of delay, dismissal and/ or deferral. The Tribunal makes the following Order:

(a) The Tribunal will deliver the Application, this Interim Decision, and the Notice of Intent to Dismiss and the applicant’s submissions to the respondents;

(b) The respondents are directed to file with the Tribunal and the applicant a Form 2 (without full response) along with their written submissions within 35 days of receipt of this Interim Decision;

(c) The applicant is directed to file with the Tribunal and the respondents written submissions in reply to the respondents’ submission within 21 days of receipt of the respondents’ submissions. The applicant is directed to limit her reply submissions with respect to all issues to no more than 25 pages (double-spaced) and the applicant is directed to provide a copy of the civil claim; and

(d) The Tribunal may determine the issues based on the materials before it or may issue further directions.

20I am not seized of this matter.