Ogunyankin v. Queen’s University, 2010 HRTO 2035

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kofoworola Ogunyankin

Applicant

-and-

Queen’s University, Gerald Adams, Robert Hudson, and John McCans

Respondents

INTERIM DECISION

Adjudicator: Mark Hart

Date: October 6, 2010

Citation: 2010 HRTO 2035

Indexed as: Ogunyankin v. Queen’s University

1The purpose of this Interim Decision is to address the respondents’ request for the removal of the personal respondents as parties to this proceeding, and also to address case management matters in anticipation of the hearing currently scheduled to proceed in Kingston from January 18 to 20, 2011.

Removal of Personal Respondents

2The respondents request the removal of all personal respondents in accordance with the criteria set out in Persaud v. Toronto District School Board, 2008 HRTO 31.

3The applicant has consented to the removal of personal respondents Dr. Karen Hitchcock and Dr. John Jeffrey, and these respondents accordingly are removed as parties to this proceeding and the title of proceeding will be amended accordingly.

4The applicant contests the removal of the remaining four personal respondents. No issue is raised that the corporate respondent, Queen’s University, also is alleged to be liable for the same conduct or that Queen’s University has accepted liability for the conduct of the personal respondents in this matter.

5The applicant does raise an issue as to the ability of the corporate respondent to respond to or remedy the alleged infringement of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on the basis that the applicant may ask the Tribunal to make personal orders against the four remaining personal respondents, including requiring them to participate in implementing programs geared at remedying systemic discrimination at Queen’s University and/or orders requiring these personal respondents to apologize to the applicant for any improper conduct.

6With regard to the matter of requiring participation in programs, I note that the statement of additional facts and requested remedies filed by the applicant in this proceeding does not request any such personal order against these personal respondents. Nor do I believe that it is necessarily required for a person to be named as a party to a human rights proceeding in order to require a corporate respondent to implement programs to remedy systemic discrimination. Where any such programs require the participation of individuals within an organization, that can form a part of any such order made against the corporate respondent.

7The applicant’s requested remedies does include a request for an apology to be provided by all respondents, including the personal respondents. The applicant relies upon this Tribunal’s decision in Agar v. North York General Hospital, 2009 HRTO 1165 for the proposition that an apology is a remedy that has a different meaning coming from an individual as opposed to a corporate entity. While I do not disagree with this statement from the Agar decision, I note that the issue of the corporate respondent’s ability to respond to or remedy the alleged Code infringement is just one of the factors that this Tribunal considers in determining whether to remove a personal respondent. In my view, the mere fact that an applicant has requested an apology from a personal respondent is not, in and of itself, a sufficient basis to justify continuing the proceeding against that individual as a party without consideration of all of the factors outlined in the Persaud decision.

8As in most cases, the question comes down to whether there is any compelling reason to continue this proceeding as against the remaining personal respondents. In particular, in my view the issue turns on whether the individual conduct of these personal respondents is a central issue to the proceeding or whether the nature of the alleged conduct may make it appropriate to award a remedy specifically against a personal respondent if an infringement is found. In this regard, I note the statement I made in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 that “actions which are more in the nature of following organizational practices or policies” are not a sufficient basis to justify continuing a proceeding as against a personal respondent.

9With those general principles in mind, I will now turn to consider each of the personal respondents at issue. With regard to Dr. Robert Hudson, he was the Chair of the Reappointment and Promotions Committee in the Faculty of Health Sciences at the relevant time. As Chair of this committee, Dr. Hudson was involved in the committee’s decision not to recommend the applicant for promotion for an associate professor position. The respondents take the position that Dr. Hudson’s role was only as a committee member and that his communication of the committee’s decision was made by him on behalf of the committee as a whole. Viewed in this light, the respondents take the position that Dr. Hudson’s actions were more in the nature of following organizational practices and polices, and do not justify his participation as a party respondent.

10The applicant’s position is that, prior to his promotion application, he was engaged in a major conflict with Dr. Hudson, and he alleges that Dr. Hudson was motivated by personal animosity towards the applicant to ensure that the applicant’s promotion application did not receive a favourable review.

11In my view, the role played by Dr. Hudson personally in the promotion review process, as opposed to merely his role as committee Chair, will need to be the subject of evidence in this proceeding. In this regard, I note that it will not be sufficient for the applicant to establish that Dr. Hudson was in a conflict of interest or even that he was motivated by personal animosity due to a prior conflict. Rather, in order to establish liability under the Code as against Dr. Hudson personally, the applicant will need to establish that his race, colour, ethnic origin or place of origin was a factor in actions taken by Dr. Hudson personally that caused him to experience a burden or disadvantage. On the basis of the material submitted to date, I cannot make this determination in the absence of evidence. However, I find that at present, the allegations raised by the applicant are sufficient to justify continuing this proceeding as against Dr. Hudson and he will remain as a personal respondent.

12The next personal respondent to consider is Dr. Gerald Adams, who at the relevant time was Chair of the Division of Cardiology. Dr. Adams was requested by the committee to provide a reference letter regarding the applicant. The reference letter provided by Dr. Adams did not support the promotion of the applicant to associate professor. The respondents take the position that Dr. Adams was merely providing a reference in response to a specific request from the committee, and as such was merely performing his role within the organization.

13The applicant alleges that Dr. Adams provided a reference letter when he was unqualified to do so as an assistant professor and had not been the applicant’s supervisor for a sufficient period of time. The applicant further alleges that Dr. Adams knew little about the applicant’s teaching, service, research and scholarship activities, and failed to take sufficient efforts to inform himself. As a result, it is alleged that Dr. Adams’ letter contained inaccuracies, and was dismissive of the applicant and improperly minimized his successes. The applicant believes that Dr. Adams held him to a higher standard than non-minority candidates, and that this differential treatment amounts to discrimination because of race.

14Once again, I note that for the purpose of this proceeding, it will not be sufficient for the applicant to establish that Dr. Adams was unqualified to provide a reference, or that his letter contains inaccuracies, or that he failed to take steps to inform himself. Rather, in order to establish a Code violation by Dr. Adams personally, the applicant will need to prove that his race, colour, ethnic origin or place of origin was a factor in the manner in which Dr. Adams prepared the reference letter that was requested. That being said, I recognize that racial discrimination can be subtle and will often depend upon the inferences to be drawn from circumstantial evidence. In my view I will need to hear evidence in order to determine whether the applicant’s race played a role in Dr. Adams’ actions. Accordingly, the respondents’ request to remove Dr. Adams as a personal respondent is denied.

15Dr. John McCans was the Head of the Department of Medicine at the relevant time, and was involved in this matter in two respects. First, he received the recommendation from the committee regarding the applicant’s promotion request, and it was his role to make the next recommendation in the process, after which the file proceeded to the Office of the Dean for the next level of review. Second, Dr. McCans was responsible for preparing a performance review of the applicant in 2006 following the denial of his promotion application, which is also in issue in this proceeding.

16The respondents take the position that Dr. McCans was simply fulfilling his role and responsibilities within the organization, and so is not a proper personal respondent. The applicant alleges that Dr. McCans’ personal refusal to recommend him for promotion is questionable given Dr. McCans’ previous positive performance appraisals, and that the 2006 performance appraisal is indicative of racial bias.

17Had Dr. McCans’ role merely been restricted to making a recommendation on the applicant’s promotion application in accordance with the University’s multi-stage review process, I would not regard this as a sufficient basis to warrant continuing this proceeding against him as a personal respondent, particularly where his recommendation was in line with the recommendation made by the committee. However, Dr. McCans was personally and directly involved in the 2006 performance review, which the applicant alleges was racially biased. Once again, the applicant will need to be able to prove this at the hearing, but in my view this nonetheless provides a sufficient and proper basis for continuing the proceeding as against Dr. McCans.

18Finally, Dr. Anthony Sanfilippo was a Professor in the Division of Cardiology at the relevant time, and conducted an audit of echocardiographic results and outcomes in relation to the applicant at the request of Dr. McCans. The results of this audit, which were not favourable to the applicant, formed part of the basis of the negative 2006 performance review. There is no allegation that Dr. Sanfilippo was directly involved in the performance review.

19The applicant alleges that the process followed in preparing the audit did not conform to standards of fairness or transparency, and that the audit contained many inaccuracies, fabrications and distortions of data. The applicant alleges that he was negatively affected by the audit because it was relied upon by Dr. McCans in preparing the 2006 performance review, which does not appear to be disputed by the respondents. The applicant’s written submissions state that the statement of additional facts would elaborate upon the deficiencies and errors in Dr. Sanfilippo’s audit; however, no such material was included in the statement of additional facts.

20The allegation made against Dr. Sanfilippo is that the audit was not properly conducted. That may or may not be true. What I do not understand, and what is not clarified in the material submitted on behalf of the applicant to date, is how or on what basis it is being alleged that Dr. Sanfilippo personally engaged in conduct that could amount to racial discrimination in violation of the Code. Whether or not Dr. Sanfilippo followed appropriate procedures in conducting the audit or whether his results were accurate is not the issue before this Tribunal. The only issue before this Tribunal is whether or not the respondents engaged in racial discrimination in violation of the Code, and with regard to the question of whether Dr. Sanfilippo should remain as a personal respondent, whether or not he personally engaged in racial discrimination. I see no basis in the material filed to support such an allegation against Dr. Sanfilippo personally. Accordingly, I grant the respondents’ request that Dr. Sanfilippo be removed as a party respondent to this proceeding.

21In their submissions, the respondents raised the spectre of the chilling effect of allowing the applicant to maintain this proceeding against certain individuals personally when they were fulfilling their roles and responsibilities at the University in relation to providing references, making recommendations or conducting performance reviews. While I am sensitive to this concern, I also need to be sensitive to the appropriate balance that this Tribunal needs to strike between not allowing a proceeding to continue against an individual who is merely performing a corporate or organizational role and recognizing an applicant’s right to proceed against individuals whom he alleges personally discriminated against him. Whether or not the direct actions of Dr. Hudson, Dr. Adams and Dr. McCans justify a finding of personal liability under the Code will depend upon a consideration of all of the evidence led at the hearing. At this stage, all I have determined is that the applicant has made allegations of racial discrimination arising out of the individual actions of these personal respondents, and their involvement in this matter goes beyond merely performing a corporate or organizational role.

22For all of these reasons, the respondents’ request to remove Dr. Hitchcock, Dr. Jeffrey and Dr. Sanfilippo is granted and the tile of proceeding will be amended accordingly. The request to remove the remaining personal respondents is denied.

Case Management

23I issued a Case Assessment Direction in this proceeding dated June 17, 2010, in which I made certain proposals regarding the conduct of the hearing in this matter and invited submissions from the parties. Written submissions were made by the applicant and the respondents. While the applicant indicated that he might make further submissions after receiving disclosure from the respondents, such disclosure was made on August 20, 2010, and to date no further submissions have been received.

24On consideration of the submissions of the parties, I will not require the respondents to proceed with their evidence first, but will hear evidence in the normal course first from the applicant.

25The hearing will be bifurcated to deal first with the issue of whether there was any violation of the Code. Any issue of remedy will be addressed after liability has been determined, and only if a violation of the Code is found.

26As stated in my Case Assessment Direction, in order to make the best use of the three hearing days currently scheduled, I am requiring the parties to file detailed and complete statements of their witness evidence, with the intention that each witness will affirm the truth of the content of their statement of evidence and will be examined by the calling party only to address new or supplementary matters as may be required, following which the opposing party will conduct cross-examination.

27By no later than Friday, November 26, 2010, the applicant is directed to serve and file detailed and complete statements of evidence for each of the witnesses he proposes to call in support of his Application, together with any further documents upon which he intends to rely. In this regard, the Tribunal notes that it already has received a Document Brief from the applicant, and so any documents in this brief do not need to be re-filed and the applicant need only file any further documents upon which he intends to rely. The applicant and any other witnesses he proposes to call shall be available for supplementary examination and for cross-examination on January 18, 2011. The statements of evidence filed by the applicant shall specifically set out all of the evidence upon which he relies in support of his allegation that he experienced racial discrimination by the University and each of the three remaining personal respondents, and the basis upon which he is asking the Tribunal to make this determination.

28By no later than Friday, December 17, 2010, the respondents are directed to serve and file detailed and complete statements of evidence for each of the witnesses they propose to call in response to the Application, together with any further documents upon which they intend to rely. In this regard, the Tribunal notes that it already has received some documents as part of the Response filed by the respondents, and so any documents appended to the Response do not need to be re-filed and the respondents need only file any further documents upon which they intend to rely. The respondents’ witnesses shall be available for supplementary examination and for cross-examination commencing on January 19, 2011.

29Once all statements of evidence have been received from the parties, the Tribunal will establish time estimates for the completion of any supplementary examination and for cross-examination of each witness. In setting time estimates for examination and cross-examination, the Tribunal notes that these will be estimates only and are not intended to limit or cut off relevant evidence. If counsel or a party gets to the end of the allotted time, then the Tribunal would hear from counsel or the party what further areas of evidence they believe they need to cover to complete the examination or cross-examination and the Tribunal would rule on what further evidence it wishes to hear.

30In my Case Assessment Direction, I had indicated that I do not need to hear opening statements, as I already am fully aware of the issues and the parties’ positions from the material filed. The applicant has requested that I allow for brief opening statements, and has suggested that the parties each be given 30 minutes for this purpose. I do not want hearing time to be taken up with opening statements. That being said, if the parties wish to serve and file opening statements in writing in advance of the hearing, I will receive and review them. If the applicant wishes to serve and file a written opening statement, he shall do so by no later than January 11, 2011. If the respondents wish to serve and file a written opening statement, they shall do so by no later than January 14, 2011.