Ogunyankin v. Queen’s University, 2010 HRTO 2248

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: November 10, 2010

Citation: 2010 HRTO 2248

Indexed as: Ogunyankin v. Queen’s University

written submissionS BY

Kofoworola Ogunyankin, Applicant ) Sandra Barton, Counsel

Queen’s University, Gerald Adams, ) Andrea Risk, Counsel

Robert Hudson and John McCans, Respondents )

1The purpose of this Interim Decision is to address requests for production made by the applicant and by the respondents.

Requests for Production by the Applicant

Faculty Annual Reports

2The applicant requests production of all unredacted Annual Reports submitted by each member of the Department of Medicine for the years 2000 to 2008. The applicant states that faculty members are required to submit an Annual Report detailing, among other things, members’ accomplishments for that year. The applicant takes the position that these reports should provide significant clarity as to how the applicant’s accomplishments compared to those of his colleagues.

3To date, the respondents have disclosed Annual Reports for faculty in the Division of Cardiology within the Department of Medicine, which is the Division in which the applicant worked, for the years from 2001 to 2006. In addition, these Annual Reports have been redacted to remove personal information.

4The respondents take the position that the Annual Reports sought are not arguably relevant to the matters at issue in this Application, as they are filed by all faculty members, who may be at different levels and different stages of their career than the applicant. In addition, the respondents take the position that there is a lack of proportionality between the probative value of the information contained in the Annual Reports and the effort required to obtain and disclose this material, which would comprise some 70 faculty members for a period of some nine years. Finally, the respondents are concerned about the personal information contained in these reports.

5One of the issues in this Application is whether the applicant experienced discrimination because of his colour, ethnic origin, place of origin, race or sex in relation to the denial of a promotion from Assistant Professor to Associate Professor in March 2007. In my view, documents that would be arguably relevant to this allegation would extend to documents relating to faculty members who had applied for a similar promotion,(whether the promotion was granted or denied) during a reasonable period of time surrounding the applicant’s promotion application in 2006 and its denial in March 2007. While I appreciate that a faculty member’s Annual Report does not form part of the materials submitted with such a promotion application, it nonetheless contains information about that faculty member’s achievements during the year that is arguably relevant to a comparison between such applicants and the applicant in the instant case. While I appreciate the respondents’ position that faculty members from different divisions within the Department of Medicine may be assessed differently than faculty members within the Division of Cardiology and even on the basis of their individual circumstances, it is my view that this is a matter for evidence at the hearing and should not interfere with disclosure of arguably relevant documents at this stage.

6In my view, a five-year period surrounding the applicant’s promotion application in 2006 is a reasonable period of time for comparison purposes, and I would set this period from two years prior to his promotion application to two years afterwards, namely from 2004 to 2008. While I appreciate that the year 2008 is after the end of the applicant’s employment with the respondent University, in my view this does not impair the arguable relevance of a comparison with promotion applicants during this time, in the absence of any evidence that there was a change to the applicable promotion policy.

7Accordingly, I order the respondents to disclose the unredacted Annual Reports for only those faculty members within the Department of Medicine for the years 2004 to 2008 who applied for a promotion from Assistant Professor to Associate Professor during that period. I understand that these Annual Reports contain personal information about the faculty members, but it is not uncommon in the adjudicative process for such personal information to be required to be disclosed. I draw the attention of all parties to Rule 5.4 of the Tribunal’s Rules of Procedure for Transitional Applications, which states that parties and their representatives may not use documents obtained under the Rules for any purpose unconnected to the proceeding before the Tribunal.

8For clarification, while I am aware that the respondents already have disclosed redacted copies of Annual Reports from 2001 to 2006 for all faculty members in the Division of Cardiology, this Interim Decision does not require disclosure of an unredacted copy of such reports unless they fall within the scope of the disclosure order made above.

Details concerning graduate student supervision

9The applicant next requests disclosure of any information that would identify the number of graduate students that any member of the Department of Medicine holding the rank of Assistant Professor supervised for the period from 2000 to 2007.

10The respondents have indicated that the University does not possess such information, although faculty members may report the number of graduate students supervised in their Annual Reports.

11In my view, in light of the respondents’ statement that the University does not possess such information outside of what may be disclosed in the Annual Reports, the disclosure order already made above sufficiently responds to this request.

Publication lists

12The applicant next requests disclosure of any information related to the publications attributable to all Assistant Professors within the Department of Medicine from 2000 to 2007.

13Once again, the respondents have indicated that the University does not possess such information, although faculty members may report on their publications in their Annual Reports.

14In my view, in light of the respondents’ statement that the University does not possess such information outside of what may be disclosed in the Annual Reports, the disclosure order already made above sufficiently responds to this request.

Information related to audit

15The applicant next requests the 192 charts of those patients examined by the applicant which were reviewed by Dr. Sanfilippo in his audit, along with any other information pertaining to any other quality assurance audit performed within the University’s Division of Cardiology.

16The respondents state that they already have disclosed the only information pertaining to the audit, which is an email with an appended chart of results. The respondents state that they are not in possession of any other information relating to this audit, and that no other similar audits were performed within the Division of Cardiology.

17With regard to patient charts, the respondents state that these documents are not in the possession, power or control of the University or the other respondents, but are in the possession of Kingston General Hospital and Hotel Dieu Hospital.

18As a result, in my view, the respondents have already disclosed the documents in their possession in response to this request. No order can be made against the respondents in relation to the patient records, as these documents are not in the respondents’ possession.

Information concerning visible minority faculty members

19The applicant has requested the following documents in relation to visible minority faculty members at the respondent University: (1) the number of visible minority faculty members by department since 1985 who have applied for promotion to associate professor and who were either granted or denied promotion, along with each member’s promotion dossier; (2) the number of visible minority faculty members broken down by department for the years 1985 to 2010; and (3) the promotion dossiers of all visible minority faculty members for the years 1985 to 2010, or alternatively the promotion dossiers of faculty members who have identified themselves as a visible minority for the same period.

20The applicant states that his case is primarily based on an allegation of systemic discrimination, such that this Tribunal needs to consider the impact or consequences of the employment system at issue, which includes looking at statistical evidence. The applicant submits that disclosure of the requested documents would allow him to generate the required statistical data to highlight the consequences or results of the employment system at the respondent University. While the applicant concedes that some information about visible minority faculty members has been provided by the respondents, the applicant takes the position that this information is deficient. For example, while the respondents have provided the total number of visible minority faculty members at the respondent University who have received or been denied a promotion to Associate Professor, this information only covers the period from 2002 to 2007, the data has not been broken down by department, and the promotion dossiers for these faculty members have not been provided. In addition, while the respondents have produced a summary of the total number of visible minority faculty members in the Department of Medicine and for specific faculties for the years 2001 to 2007, this does not cover all years from 1985 to 2010 and does not break the information down by department.

21The respondents raise a number of concerns in response to this request. First, the respondent University does not have census data going back to 1985. The University’s Human Rights Office reports contain the data from the early 1990’s and the data from 2003 forward is contained in subsequent Human Rights Office reports as well as reports of the University’s Equity Office, all of which already have been disclosed. Second, the University states that it already has produced extensive and detailed information pertaining to information about visible minority faculty members, which it has detailed in its submissions. Having reviewed the list of material already disclosed, it does indeed appear to be quite extensive. Third, the respondents take the position that the applicant’s request is over-broad and would impose an onerous administrative burden on the University. Fourth, with regard to the promotion dossiers, the University submits that disclosure of the promotion dossiers for visible minority faculty members would be of no probative value, as there would be no comparator group with which to compare this information.

22In his reply submissions, the applicant responded to this last submission by amending his production request to extend to production of promotion dossiers in relation to promotion applications for Associate Professors from 2001 to 2007 not only of those who self-identified as visible minorities but also for those who did not self-identify.

23I accept that the applicant is alleging systemic discrimination in this case. But at the end of the day, the issue before me is whether the applicant’s own individual rights under the Code were violated by the respondents, which would include consideration as to whether any systemic discrimination at the respondent University caused or contributed to the violation of the applicant’s rights. As a result, the documents requested by the applicant must be arguably relevant to this issue. The employment system at issue in this case is the employment system at the respondent University relating to promotions from Assistant Professor to Associate Professor. More particularly, in my view, it is the promotion system that is governed by the University’s Promotion Policy for faculty members in the Faculty of Health Sciences.

24The evidence indicates that the Faculty of Health Sciences is comprised of three schools: (1) the School of Nursing; (2) the School of Rehabilitation Therapy; and (3) the School of Medicine. The School of Medicine in turn has 22 departments, one of which is the Department of Medicine which encompasses disciplines of all internal medicine. The Department of Medicine in turn has 12 Divisions, one of which is the Division of Cardiology in which the applicant worked. Across the University, there are 1,101 full-time faculty members and 1,466 part-time faculty members, of which almost 300 are in the School of Medicine.

25In order for this Tribunal to properly be in a position to consider and assess the effects or consequences of the employment system at issue in this case, it is arguably relevant to consider documents relating to promotions from Assistant Professor to Associate Professor within the School of Medicine over a reasonable period of time. While I acknowledge that the promotion policy at issue in this case extends to the entire Faculty of Health Sciences, which also includes the School of Nursing and the School of Rehabilitation, it is my view that consideration of promotions within these other two schools is sufficiently different to be of minimal probative value.

26I agree with the respondents that the request for documents and data extending to the University as a whole is overbroad, as such material extends far beyond the reach of the employment system at issue in this proceeding. I further agree with the respondents that requesting documents and data for the 25 year period from 1985 to 2010 is also over-broad and unreasonable. As stated above, in my view, a reasonable period of time for comparative purposes would be the period from 2004 to 2008, which is two years prior to and two years after the applicant’s promotion application.

27Accordingly, I order the respondents to produce to the applicant the unredacted promotion dossiers for all faculty members within the School of Medicine who applied for a promotion from Assistant Professor to Associate Professor during the period from 2004 to 2008. If the promotion dossier itself does not indicate the faculty member’s department or whether the faculty member is a member of a visible minority and if this information otherwise is known to the University, then such information also shall be disclosed. The respondents also shall disclose whether or not the promotion was granted or denied.

28Once again, I am aware that this material contains personal and sensitive information, and I again remind all parties of Rule 5.4.

Other information related to systemic discrimination

29The applicant finally requests any exit surveys of visible minority faculty members who have departed the respondent University over the last 20 years, and any written complaint or grievance submitted to or received by the respondent University concerning incidents or reports of discrimination.

30The respondents state that exit surveys were only initiated at the University in 2004. The respondents already have disclosed the results of exit surveys conducted across the University from 2004 to 2008 and a report authored by the Equity Office entitled “Exit Questionnaire 2004-2008, Results of Staff and Academic Response” in which the information from the exit surveys was reviewed and commented upon.

31The applicant has not provided any proper basis upon which he is seeking disclosure of the exit surveys themselves. There is no evidence before me to indicate how these documents are arguably relevant to the issues before this Tribunal, which relate to the denial of the promotion to the applicant in March 2007 and the conduct of his performance review in June 2007. The applicant’s request for this material is denied.

32With regard to the applicant’s request for disclosure of discrimination complaints or grievances, I agree with the respondents that this request is over-broad both with respect to the period of time for which disclosure is sought and the fact that it covers a multitude of unrelated grounds of discrimination.

33This Tribunal has addressed requests for production of this nature in a variety of decisions, particularly involving the police. See Nassiah v. Peel Regional Police Services Board, 2006 HRTO 18; King v. Toronto Police Services Board, 2008 HRTO 33; and Washington v. Toronto Police Services Board, 2009 HRTO 217. The consensus of this Tribunal is that disclosure of prior complaints will only be ordered where they have been made against one of the personal respondents and relate to same ground of discrimination as being alleged by the applicant. In the instant case, I also am of the view that it may be arguably relevant if a complaint of racial discrimination had been made by a faculty member of the School of Medicine in relation to the denial of a promotion to Associate Professor.

34I am aware that some of the Tribunal’s decisions have ordered disclosure to be made directly, while others have imposed an O’Connor-type procedure where the documents are first submitted only to the Tribunal for review. At this stage, I am only ordering the respondents to disclose whether a complaint of racial discrimination has been made against any of the current personal respondents, whether through a complaint to the Human Rights Office or in a grievance, and whether a complaint of racial discrimination has been made by a faculty member of the School of Medicine in relation to the denial of a promotion to Associate Professor, once again whether to the Human Rights Office or in a grievance. If the answer is yes, then I will consider submissions regarding the appropriate process for dealing with disclosure of documents that fall under this heading.

35In terms of the time period to which this order relates, it is my view that a 20-year time period is far too long. As a result, I order that the respondents disclose whether any such complaints have been made from 2000 up to the present day.

Request for Production by the Respondents

36The respondents have requested disclosure of a variety of documents that may be arguably relevant to the applicant’s claim for a remedy in this proceeding. The applicant has taken the position that, as this matter has been bifurcated so as to first deal with the issue of whether there was a Code violation and then to deal with remedy at a subsequent stage only if a violation were to be found, he should not be required to disclose documents which are only arguably relevant to the remedy issue. I agree. Having bifurcated the proceeding, it makes little sense to me to require a party to disclose documents relevant to remedy when such disclosure may never be required depending upon the outcome of the proceeding. In the event that a violation of the Code is found in the Tribunal’s decision in this matter, a process will be established for ensuring proper disclosure of documents relevant to remedy at that time.

37However, the respondents take the position that their request for disclosure is not only arguably relevant to the issue of remedy, but is also arguably relevant to the liability issue.

38The respondents first request disclosure of all information and documentation relating to the applicant’s search for an alternate position, which the respondents understand commenced in the spring of 2007, prior to the final decision being made not to promote the applicant. If this was the case, the respondents state that they may want to cross-examine the applicant regarding his commitment to the University, which may be important information when considering the various factors that led to the applicant not meeting the promotion criteria. I agree with the applicant that as there is no indication that such information was known to or considered by the respondents at the time the promotion decision was made, such information is not arguably relevant to a matter at issue in this proceeding.

39The respondents next request a current curriculum vitae for the applicant. Once again, this is not information that would have been known to or considered by the respondents at the time, and in my view is not arguably relevant.

40The respondents further request all information and documentation pertaining to the applicant’s scholarly, clinical, administrative and teaching achievements from 2007 to the present. I find that this material is not arguably relevant on the same basis.

41Finally, the respondents request information and documentation relating to the applicant’s subsequent employment at Northwestern University, which is again denied on the same basis.

Timing of Disclosure

42In this Interim Decision, I have ordered the respondents to disclose: the unredacted Annual Reports for those faculty members within the Department of Medicine for the years 2004 to 2008 who applied for a promotion from Assistant Professor to Associate Professor during that period, as well as the unredacted promotion dossiers for all faculty members within the School of Medicine who applied for a promotion from Assistant Professor to Associate Professor during the period from 2004 to 2008. With regard to the latter order, I also have ordered the disclosure of further information, as set out above.

43I also have ordered the respondents to disclose whether a complaint of racial discrimination has been made against any of the current personal respondents, whether through a complaint to the Human Rights Office or in a grievance, and whether a complaint of racial discrimination had been made by a faculty member of the School of Medicine in relation to the denial of a promotion to Associate Professor, once again whether to the Human Rights Office or in a grievance.

44I order the respondents to produce this material to the applicant within 14 calendar days from the date of this Decision. I am not requiring the applicant to bear the costs of this production, as requested by the respondents, as there is no proper basis for me to do so under the Rules.

45I am aware that the applicant is working toward a deadline of December 3, 2010, to provide a complete statement of evidence for himself and for any witnesses he intends to call, and that disclosure of the material as required by this Interim Decision will afford little time for the material to be reviewed prior to this deadline. Accordingly, while the applicant is still required to meet the December 3, 2010 deadline in relation to all other evidence he proposes to provide at the hearing, I am allowing him a further two weeks, until December 17, 2010, to provide any further evidence arising solely out of the productions made pursuant to this Interim Decision. The respondents similarly will still be required to provide complete statements of all of their evidence by December 24, 2010, but are hereby afforded a further two weeks solely to respond to any further evidence submitted by the applicant arising out of this Interim Decision.