Agbalugo v. York University, 2010 HRTO 785

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Emmanuel Agbalugo

Applicant

-and-

York University, Alison Gaymes, Alice Pitt and Yonette Dey

Respondents

INTERIM DECISION

Adjudicator: Dale Hewat

Date: April 9, 2010

Citation: 2010 HRTO 785

Indexed as: Agbalugo v. York University

1This is an Application filed June 30, 2009, under section 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The complaint which underlies the current Application was filed with the Ontario Human Rights Commission (“Commission”) on June 22, 2007. In this complaint, the applicant alleged that he was discriminated against in the provision of services at York University because of colour, ethnic origin, family status, marital status, place of origin, race, sex and sexual solicitation. The applicant also claims that he suffered continual reprisal and harassment because he refused sexual solicitations by some members of York’s Faculty of Education commencing with his application for admission into the Bachelor of Education program in 2004 and 2005. In the complaint, the applicant also alleges that his refusal to succumb to sexual advances by the some of the personal respondents caused him to not succeed in a teaching practicum and him receiving an At Risk Letter for the program. In addition, the applicant states that he was subject to racial discrimination commencing in September 2006 by a faculty member who was assigned to supervise his teaching practicum and that a plot was in place to ensure that he failed the practicum resulting in his ultimate removal from the Bachelor of Education Program. In the materials filed with the Tribunal on March 10 and 18, 2010, the applicant asserts that the respondent York University continues to discriminate against him and that he has suffered reprisal for filing his human rights complaint as evidenced by his attempts to complete and receive a Certificate in Teaching English as a Second Language (“TESOL”). In the materials submitted, the applicant makes allegations of discrimination by staff within the Department of Linguistics of the Faculty of Arts and the Registrar’s Office of the University. Details are provided by the applicant of an appeal of grades and allegations of forged documents and transcripts some of which are after the filing of the original human rights complaint.

2This Interim Decision addresses a disputed Request for Order During Proceedings (the “Request”) filed by the applicant on March 8, 2010, seeking to amend the Application; to add parties; to extend the time for filing of additional documents, facts and remedies until April 20, 2010, on the basis he has not able to locate certain documents due to moving out of his rental unit; and to consolidate Applications. In his Request, the applicant has requested that the Tribunal review the documents and amend the complaint to include the allegations noted and to add more respondents and to allow for a change in compensation requested.

3The respondents advise that, while they oppose the relief sought by the applicant, they would not oppose an extension of time for delivery of documents on the condition that they are given a corresponding extension of time. The respondents object to the inclusion of new allegations raised and the addition of personal respondents in the current Application. The respondents state that the new allegations are not connected with any of the named individual respondents or other employees of the University to whom the applicant refers in his application or with any of the existing allegations in the Application which related only to the Faculty of Education. In addition, the respondents note that the new references to reprisal have no basis because many of the allegations are dated before the applicant filed the original human rights complaint in June, 2007. Finally, the respondents argue that there is no basis suggested by any of the information provided in the more recent documents, including University transcripts from 2009, that links them to any prohibited grounds of discrimination in the Code or to any of the existing allegations in the Application.

DECISION

Consolidation

4The Tribunal has no record of another Application filed by the applicant; therefore, there is no need to consolidate applications.

Amendments/Adding Parties

5The transitional provisions of the Code are intended to deal with the subject matter of complaints filed with the Commission prior to June 30, 2008. The applicant’s allegations of reprisal with respect to the TESOL Certificate, appeal of grades and concerns with Transcripts submitted in the documents filed following the Request for Order on March 8, 2010, did not form part of the subject matter of the complaint which was abandoned or the subject of the current Application.

6In my view, the legislative intention as set out in the transition provisions is that section 53(5) applications should be dealt with in a highly expeditious manner. To that end, the Tribunal developed Rules to foster a fair, just and highly expeditious process. In particular Rule 6.3 states:

Applications made in accordance with these Rules must be based on the subject matter of the complaint or amended complaint filed at the Commission and the Tribunal will not entertain preliminary requests to add grounds, expand the subject matter of the complaint or add parties to the Application.

7In my view, it would detract from the expeditious nature of the proceeding to permit the applicant to add the requested persons and expand the current Application to include any of the allegations raised in the documents filed with the Tribunal on March 10 or 18, 2010. The applicant’s request to add parties and expand the scope of the Application or to change the remedy sought is denied.

Extension of Time

8The Hearing in this matter is scheduled for May 20, 2010. The original date for exchanging and filing materials pursuant to Rule 18 of the Tribunal’s Rules of Procedure for Transition Applications was March 8, 2010 for the applicant and March 22, 2010 for the respondents. April 30, 2010, is the deadline for providing witness lists, a description of what each witness will say and a list of documents on which the parties intends to rely upon at the hearing and copies of any documents not previously provided under Rule 18.1.

9On April 5, 2010, the Tribunal received a letter from the respondents advising that they had not received a statement of additional facts or remedies sought from the applicant. The respondents indicated that at this time they have no additional facts to submit but reserved the right to deliver a statement of facts and a response to the remedies sought after the applicant provides such information.

10Given the applicant’s explanation for not being able to locate documents and because there is sufficient time before the hearing date of May 20, 2010, I am prepared to allow the applicant’s request for an extension of time to provide his additional statement of facts, relevant documents and remedies sought only with respect to the original human rights complaint. Accordingly, the applicant may submit such statements and relevant documents to the respondents with a copy to the Tribunal by April 20, 2010. The respondents will be permitted 10 days from the date of receipt of the applicant’s material to respond to the applicant with a copy to the Tribunal. The original deadline of April 30, 2010, for filing of witness lists and statements is also extended, to May 7, 2010.