Aristide Tsemo v. University of Toronto, 2011 HRTO 1020

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Aristide Tsemo Applicant

-and-

University of Toronto Respondent

decision

Adjudicator: Michelle Flaherty

Date: May 30, 2011

Citation: 2011 HRTO 1020

Indexed as: Tsemo v. University of Toronto

APPEARANCES

Aristide Tsemo, Applicant ) Self-represented

University of Toronto, Respondent ) Sari L. Springer, Counsel

1The applicant has filed an Application under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990 c. H.19, as amended (the “Code”). The applicant alleges discrimination in employment on the basis of colour and ethnic origin. In particular, he alleges that his colour and ethnic origin were factors in the respondent’s decision not to hire him. He also alleges that they were factors in three particular interactions he had with the respondent. Finally, he alleges that the respondent breached Minutes of Settlement.

2For the reasons that follow, the Application is dismissed. I am satisfied that there was no discrimination in the circumstances.

3There is no basis to conclude that the applicant’s colour or ethnic origin were factors in the respondent’s hiring decision. The respondent has provided a reasonable and plausible explanation for not hiring the applicant based on non-discriminatory considerations. The respondent has also provided a reasonable explanation for the other incidents raised by the applicant. Finally, I find that the respondent did not breach Minutes of Settlement entered into by the parties in 2005.

THE SCOPE OF THE PRESENT APPLICATION

4These parties have been involved in a number of proceedings before the Tribunal. They can be summarized as follows:

a. the applicant filed a Complaint in October 2003 in which he, in essence, alleged discrimination in the respondent’s hiring process in 2002;

b. the Complaint was resolved in Minutes of Settlement signed by the parties in 2005 (“2005 Minutes of Settlement”);

c. the applicant filed the Complaint that is the subject of this Decision in 2007. In essence, it contains the following allegations:

1. in 2005 and 2006, the respondent discriminated against the applicant in its consideration and rejection of his application for employment;

2. the respondent breached the 2005 Minutes of Settlement;

3. three additional incidents (the fact that the applicant did not receive a letter, an alleged comment by Professor Repka, and an incident in the library involving Professor Bland) constitute discrimination;

4. the respondent discriminated against the applicant in its failure to hire him in 2002.

5In an earlier Interim Decision (2009 HRTO 1917), the Tribunal dismissed the portions of the Application that contain allegations of discrimination in 2002. The Tribunal concluded that part of the Application had been appropriately dealt with in another proceeding and/or that it would be an abuse of process to allow that portion of the Application to proceed.

6In a Case Assessment Direction (“CAD”) issued in March 2011, I indicated that the following issues would be addressed at the hearing of the matter:

a. whether, in 2005 and 2006, the respondent discriminated against the applicant in its consideration and rejection of his application for employment; and

b. whether the respondent breached Minutes of Settlement; and

c. whether three additional incidents (the fact that the applicant did not receive a letter, an alleged comment by Professor Repka, and an incident in the library involving Professor Bland) constitute discrimination.

7At the hearing, the applicant sought to present evidence regarding an alleged breach of the Minutes of Settlement entered into by the parties in 2009. I ruled orally that this allegation was outside the scope of the Application. The allegations in the Application relate to breaches of the 2005 Minutes of Settlement. The Application makes no reference to the 2009 Minutes of Settlement.

8As I explained orally to the parties, the issues to be addressed at the hearing arise out of the Application. It is unfair to allow one or the other of the parties to raise issues that are not disclosed to the other party in advance of the hearing. Fairness dictates that parties ought not to be taken by surprise and must know the case they have to meet in advance of the hearing.

9The applicant argued that the CAD did not specify the date of the Minutes of Settlement to be addressed at the hearing. He argued that this failure to specify the date means that he ought to be able to address alleged breaches to both the 2005 and the 2009 Minutes of Settlement.

10The Application raises allegations of breach of settlement of only the 2005 Minutes of Settlement. This was the information before the Tribunal when it issued the CAD. It was not until the hearing that the parties advised of the existence of the 2009 Minutes of Settlement. Clearly, the CAD refers to the 2005 Minutes of Settlement. In any event, the applicant cannot rely on an alleged ambiguity in a CAD to extend the scope of his Application.

2005 MINUTES OF SETTLEMENT

11The applicant alleges Ms. Kahn did not meet with him on two occasions, as required in the 2005 Minutes of Settlement. The Minutes state:

The respondent will provide Mr. Tsemo with one initial and one follow-up meeting with Beverly Kahn, a career counsellor at the University of Toronto (U of T) Career Counselling Centre.

12Ms. Kahn testified that she met with the applicant once and invited him to make a follow up appointment once he had updated his resume. Ms. Kahn stated (and the applicant did not dispute) that he failed to make a follow up appointment. I find that, although a second meeting did not occur as required in the 2005 Minutes of Settlement, this is because of the applicant’s failure to follow up. There was no breach of the 2005 Minutes of Settlement on the part of the respondent.

13The applicant also alleges that the respondent breached the 2005 Minutes of Settlement when it refused to provide him with $500 for each scientific trip he undertook. The Minutes state:

The corporate respondent agrees to pay the complainant the sum of $500.00 to Mr. Tsemo to assist with the costs of attending one of the National Mathematics Society meetings for the purposes of job search and networking.

14The Minutes are clear in regards to this issue. They require the respondent to contribute $500 towards one scientific meeting. The applicant acknowledges receiving $500. The applicant argues that, although the 2005 Minutes of Settlement refer to a single payment of $500, during the settlement discussions, the parties discussed multiple payments. In order to establish a breach of settlement, the applicant must show that the agreed-upon terms were violated. He cannot base the breach on settlement discussions that are different from what was ultimately agreed to by the parties. I find that the respondent abided by the terms of the 2005 Minutes of Settlement.

15The applicant further alleges that the respondent breached the 2005 Minutes of Settlement because it failed to provide him with access to resources. The Minutes state:

The respondent will provide Mr. Tsemo with one meeting with Professor Ken Barlett of the Office of Teaching Advancement at U of T, who will outline the types of resources that are available to Mr. Tsemo to advance his career.

16Although the applicant acknowledges that he met with Professor Barlett and that he was provided with a list of resources, he argues that the 2005 Minutes of Settlement require the respondent to actually provide those resources to him.

17Again, I find that the 2005 Minutes of Settlement are clear and that the respondent respected their terms. The Minutes require that the applicant receive a list of resources, they do not state that the respondent must also ensure the applicant has access to these resources.

18The applicant argues that the respondent breached the 2005 Minutes of Settlement in refusing him access to an internship. The Minutes state:

The respondent will allow Mr. Tsemo to audit a course entitled Teaching Large Mathematics, MAT1499H. This is a graduate course within the Department of Mathematics.

19The applicant acknowledged that he was given the opportunity to audit MAT1499H, although he states that he was not permitted to do a practical assignment (an internship) as part of that course. Professor Repka, who taught the class, testified that only graduate students did the internship. According to Professor Repka, the internship was not available to any auditors and the applicant was not treated differently from any other student auditing the class. The applicant did not dispute this evidence.

20The 2005 Minutes of Settlement state that the applicant is entitled to audit MAT1499H. They do not require the respondent to treat the applicant any differently from other auditors or to give him opportunities not available to other auditors. I accept that no auditors participate in the internship. Accordingly, I conclude that there was no breach of the 2005 Minutes of Settlement.

ALLEGED DISCRIMINATION IN STAFFING

21In 2005, the applicant applied for three teaching positions within the department of Mathematics. He was not hired. The applicant states his race and ethnicity must have been factors in the respondent’s decision not to hire him, despite his excellent qualifications.

22I heard the evidence of Professor Bland, who was the chair of the Department of Mathematics and of its appointment committee at the material times. Professor Bland explained that the Department is very prestigious and well-ranked within North America. He testified that the Department is able to be very selective in its academic staffing, that it attracts excellent candidates, and it generally hires only leaders in their fields.

23Professor Bland testified that the applicant was not of the calibre of the individuals hired in 2005. He stated that the applicant had done little academic work or research since completing his PhD in 1999; the applicant’s letters of reference were out-of-date and weak compared to those of the persons hired. While the applicant had published approximately four “reasonable” papers, there was nothing to suggest that the applicant would be involved in breakthrough research, which is a criterion applied by the respondent in its hiring. Professor Bland testified that the applicant’s remaining publications were “weak” and essentially a restatement of the four “reasonable” papers.

24The applicant stressed that the respondent did not put sufficient weight on his academic achievements and his standing as a student. He disputes that his papers are “weak” and he states that he published significantly more papers than some of the other candidates. The applicant testified that his letters of reference contain positive comments about his abilities and his teaching, in particular. The applicant argues that his work was in a very difficult area and that he had demonstrated success as a student.

25At the hearing, the applicant requested disclosure of the application packages of the individuals hired by the respondent’s Department of Mathematics in 2005 (“Application Packages”). The respondent objected to this request, in part because of the late stage at which it was made.

26I concluded that, in the circumstances, it was appropriate for the applicant to receive information about the qualifications of the individuals who were hired in 2005. The parties agreed to a process for disclosing summaries of the Application Packages. This process was set out in a Case Assessment Direction issued in April 2011. In accordance with the process agreed to by the parties, summaries of the Application Packages were prepared by a third party mathematician agreed to by the parties. The summaries did not include the candidates’ personal information. Following disclosure of the summaries, the applicant made written submissions to the Tribunal regarding the information contained in the summaries.

27The Code states:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

28To be successful, the applicant must show that a protected ground was a factor in the decision not to hire him. Importantly, however, a protected ground need not be the only or even a substantial factor in the hiring decision for a potential employer to run afoul of the Code. I stress that my task is not to determine whether the respondent’s decision not to hire the applicant was correct or even appropriate. The sole issue before me is whether or not the applicant’s colour or ethnicity was a factor in that decision.

29The parties clearly disagree about the applicant’s relative qualifications. The respondent states that, while the applicant may be a smart mathematician, he is not of the calibre required of its academic staff. The applicant argues that the respondent has mischaracterized his abilities, failed to prioritize his academic success, and failed to give appropriate weight to the positive comments contained in his letters of reference.

30As this Tribunal noted in Sinclair v. City of London, 2008 HRTO 48, race plays a very subtle role in our society. I am mindful that race can influence many social interactions without the knowledge or the intention of those involved.

31In this case, however, I cannot conclude that the applicant’s colour or ethnicity were factors in the respondent’s decision. In my view, the respondent has provided a plausible and non-Code related explanation for its decision not to hire the applicant. In reaching this decision, I am influenced by the following:

a. the respondent received over 800 applications for the three positions;

b. the candidates it hired had won prestigious scholarships and/or held prestigious honours that the applicant did not;

c. the candidates hired by the respondent provided more recent and more glowing letters of recommendation. They also had more recent research and teaching experience;

d. most of the applicant’s references, teaching and publications related to his work as a student. I accept the respondent’s evidence that it is most interested an individual’s work following graduate school because, to some extent, earlier work reflects on the thesis advisor; and

e. the applicant’s letters of reference were out of date and many of them contained qualifying statements about the applicant. They were not as recent or as glowing as the letters of reference received regarding other candidates.

32For these reasons, I find that the respondent did not discriminate against the applicant when it decided not to hire him.

OTHER ALLEGATIONS OF DISCRIMINATION

33The applicant alleges that he was treated differently than other candidates because he did not initially receive written confirmation of the respondent’s decision not to hire him. John Bland’s evidence (which was not contradicted or challenged by the applicant) was that the respondent does not generally send out rejection letter. However, when the applicant communicated with the Department and asked for a letter, one was provided to him.

34I find that the applicant was not treated differently from any other unsuccessful applicant. I accept Dr. Bland’s evidence that other unsuccessful candidates did not receive rejection letters unless they specifically requested one. There is no basis to conclude that the applicant was discriminated against in regards to the rejection letter.

35The applicant also alleges that Professor Repka made discriminatory statements regarding the historical origins of the University of Toronto.

36Professor Repka testified that, in teaching MAT1499H, he provides students with an overview of the structure of the University of Toronto. He explains that the respondent was originally made up of smaller colleges, many of which had a religious affiliation. Some of the colleges retain a religious heritage, although, with the exception of (perhaps) the School of Theology, the historic religious affiliation has no bearing on how the respondent currently conducts its business.

37The applicant did not dispute Professor Repka’s evidence or characterize the allegedly discriminatory statements any differently.

38I find that the comments were not discriminatory. The comments were simply a statement of historical fact, they were not directed at the applicant, and, in the context in which they were said, they could not have had the effect of demeaning and objectifying the applicant..

39Finally, the applicant states that Professor Bland accosted him, grabbed his arm, and demanded to see the applicant’s library card. There is a factual dispute about this issue. Professor Bland acknowledges that he asked to see the applicant’s library card, but he denies any physical contact. He states that he made the request because he was concerned that the applicant was using University resources without authorization. Dr. Bland states that the applicant had been using the faculty/graduate student lounge, although he was not authorized to do so. He states that the applicant made a scene when he was asked to leave.

40The applicant states that Dr. Bland made physical contact with him. He denies that the library card incident was related to the use of the lounge.

41It is not necessary for me to resolve the factual dispute. Again, my role is not to evaluate whether any behaviour towards the applicant was polite or appropriate. My role is to determine whether the applicant’s race or ethnicity was a factor in the respondent’s behaviour.

42I find that it was not. In the circumstances, I think it was reasonable for Professor Bland to question the applicant about his library card. The applicant had a history of using respondent resources (letterhead, faculty/graduate student lounge) without authority. I find that Professor Bland’s request was based not on the applicant’s race or ethnicity, but on his previous behaviour. I have no difficulty rejecting the applicant’s claim that he was discriminated against on the basis of race or ethnicity in this regard.

CONCLUSION

43For all of the above reasons, the Application is dismissed.

Dated at Toronto, this 30th day of May, 2011.

”signed by”___________

Michelle Flaherty Vice-chair