Nepthys Aberdeen v. University of Toronto, 2010 HRTO 2514

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: December 20, 2010 Citation: 2010 HRTO 2514 Indexed as: Aberdeen v. University of Toronto

WRITTEN SUBMISSIONS

Nepthys Aberdeen, Applicant ) Self-represented University of Toronto and University of Toronto Campus Police, Respondents ) Sari Springer, Counsel

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 sex, race, ethnic origin and disability.

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 discriminatory treatment at the hands of the respondent University’s 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 throughout her studies. 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 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.

5On September 1, 2010, the Tribunal issued an Interim Decision, 2010 HRTO 1804, where it directed that the parties file written submissions with respect to the following three issues:

1. whether or not the Application, or parts thereof, are barred because of delay;
2. whether or not the Application is barred because of a civil court action with respect to the Code allegations; and
3. whether or not the Application should be deferred pending the conclusion of concurrent civil and/or criminal proceedings.

6The respondents filed their Response and submissions in response to the issues identified in the Interim Decision on October 12, 2010.

7On November 1, 2010, the applicant filed a Reply and submissions in response to the issues identified in the Interim Decision. Subsequently, the applicant also filed ten Requests for Orders During Proceedings (“RFOP”) seeking disclosure. On November 26, 2010, by way of Registrar’s letter, the Tribunal notified the respondents that it was unnecessary for the respondents to file Responses to the applicant’s RFOPs pending further direction from the Tribunal.

DECISION

8This Interim Decision will deal with the preliminary issues raised in the previous Interim Decision, as well as address matters arising out of the applicant’s ten RFOPs.

Dismissal and/or Deferral

9The parties’ submissions indicate that there are no on-going criminal or civil proceedings with respect to the facts as alleged in the Application. As such, there are no grounds, pursuant to section 34(11) or otherwise, upon which to dismiss or defer the Application.

Delay

10Section 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.

11In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal stated that the mandatory one-year limitation period for filing an application is consistent with the policy objective that human rights claims should be dealt with expeditiously. The Code requires an individual to act with all due diligence and file an application within one year when seeking to pursue a human rights claim. Where the Tribunal is not satisfied that the delay was incurred in good faith and that no substantial prejudice will result to any person affected by the delay, it has no power to relieve against the one-year time limit and to determine the application.

12As previously noted, the allegations made in the Application relate to the applicant’s (1) general experiences during the course of her seven years of studies at the University and (2) specific experiences flowing from the events of June 2, 2009 involving the Campus Police.

13The applicant submits that the Application is timely and that her general experiences for the years prior to the events of June 2, 2009 are a “precursor” the events of June 2, 2009. The applicant states that she has “continually suffered” mistreatment and discrimination at the University for seven years and that the instances described in her narrative are particulars of the history of these discriminatory experiences.

14The Tribunal has considered the nature of the events and whether they may reasonably be viewed as a pattern of conduct or are comprised of incidents relating to discrete and separate issues without some connection or nexus: Duggan v. Villa Care Centre Nursing Home, 2010 HRTO 1695, Baisa v. Skills for Change, 2010 HRTO 1621. Further, the Tribunal has stated that the continuing effects of an act of alleged discrimination do not in themselves constitute further acts of discrimination or a series of incidents: Mafinezam v. University of Toronto, 2010 HRTO 1495.

15Based on the applicant’s narrative and submissions, I find that there is significant delay with respect to parts of the Application. I do not accept that the discrimination alleged by the applicant in the first component of her Application constitutes a series of incidents and/or a continuing contravention of the Code.

16The first component of the Application describes various experiences regarding general concerns of where the applicant perceived her opinion or work was not respected by numerous individuals, as well as concerns regarding funding difficulties in the past. None of these allegations relate to the specific events that occurred in 2009 and none of these events are related to each other. Although the applicant contends that these events are linked because, from her perspective, the various instances demonstrate the respondent University’s overall discriminatory approach towards her, the applicant has presented no facts or submissions to support this position beyond her bare contention. Notwithstanding a careful review of the allegations and applicant’s submissions, I was unable to discern any facts connecting the various alleged instances.

17I, therefore, find that the first component of the Application, specifically the allegations relating to pre-2009 events, is untimely. As the applicant has not provided an explanation for why she could not have made an application about this alleged discrimination in a timely manner, she cannot proceed with this part of the Application.

18I do find, however, that the second component of the Application, specifically the events of June 2, 2009 and after, is within the Code’s one year limitation period. As such, the Application will only proceed with respect to the allegations in relation to the events surrounding June 2, 2009.

Requests for Order During Proceedings

19The applicant has filed ten RFOP seeking disclosure of the identity of potential witnesses and production of documentary and other evidence, including education records, employment records, telephone and video tapes. The applicant contends that she needs this information in order to corroborate her allegations.

20The request for disclosure and production is premature. Under Rule 16 of the Tribunal’s Rules of Procedure (“Rules”), each party must deliver to the other all arguably relevant documents in its possession within 21 days after the Tribunal sends a Confirmation of Hearing to the parties. No Confirmation of Hearing has been issued in this case and there are no special circumstances that justify a disclosure order at this stage of the process.

21Once parties have exchanged disclosure in accordance with the Tribunal’s Rules, if any party considers the disclosure they have received to be deficient the party may then request the Tribunal’s assistance in that regard.

22I am not seized of this matter.