Ogunyankin v. Queen’s University, 2011 HRTO 111

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: January 14, 2011

Citation: 2011 HRTO 111

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 matters raised in my last Interim Decision, 2011 HRTO 22, dated January 4, 2011, regarding the proposed evidence of the parties, the Request for Order filed by the applicant regarding the proposed evidence of Dr. Goel, certain additional matters arising from submissions of the parties filed in response to my last Interim Decision, and further case management matters.

Proposed evidence of D. Alissa Trotz

2In my last Interim Decision, I raised concerns about the proposed evidence of D. Alissa Trotz. This individual states that she held a tenure track position in the Department of Women’s Studies at the respondent University, and left the University in 2000 due to her concerns about the culture of Whiteness at the University and her experience with the promotions process. I expressed concern about the relevance of this proposed evidence for two reasons. First, it relates to an entirely separate department at the University, which is not part of the School of Medicine or even the Faculty of Health Sciences. Second, this witness departed from the respondent University in 2000, some seven years prior to the matters at issue in this proceeding.

3The applicant submits that this evidence is relevant as supporting the applicant’s assertion that there is a “culture of Whiteness” at the respondent University that resulted in the discrimination he experienced. The applicant states that this culture of Whiteness is not restricted to any single faculty and in particular not to the Department of Medicine within which the applicant was employed, but is University-wide and well-entrenched. The applicant submits that Ms. Trotz’s proposed evidence speaks to her experience of this culture of Whiteness, and may illustrate how the applicant’s experience is not only plausible, but part of a lengthy and systemic problem that permeates the University.

4The applicant further submits that the fact that Ms. Trotz’s experience ended with her departure from the University in 2000 should be of no consequence, as it is consistent with the findings of the Henry Report issued four years later. Given my previous statement that the Henry Report may provide some helpful context and background to this matter, it is submitted that the proposed evidence of Ms. Trotz may provide even more helpful background and context.

5The respondents object to the proposed evidence of Ms. Trotz as irrelevant and inadmissible.

6The problem with the applicant’s submissions is that it is not my task in this inquiry to determine whether there is a broad “culture of Whiteness” at the respondent University. Rather, my task is to assess whether the applicant experienced racial discrimination arising out of his experience in relation to his application for promotion to an Associate Professor position and in relation to the performance appraisal that he received in 2007. While the Henry Report, together with other documents pertaining to race and equity issues at the respondent University, may provide some helpful context and background for my determination of the issues raised in this proceeding, it is my view that the experience of another faculty member in an entirely different department in an entirely different faculty is not relevant to the applicant’s experience and would not be helpful. There is no indication in Ms. Trotz’s proposed evidence that her experience involved any of the same individuals who were involved with the applicant. In reality, as submitted by the respondents, Ms. Trotz’s proposed evidence falls into the category of similar fact evidence, and does not meet the test for the admissibility of such evidence: see Sinclair v. London (City), 2008 HRTO 48 at paras. 23 to 28. In particular, I find that Ms. Trotz’s proposed evidence does not meet the standard for similarity to the matters at issue in this proceeding and would unduly distract from the focus of the inquiry in this case.

7Consequently, I find that Ms. Trotz’s proposed evidence is not relevant or admissible, and I strike her proposed witness statement.

Proposed evidence of Dr. Shelig

8In my last Interim Decision, I also expressed concern about the proposed evidence of Dr. Khalid Shelig. One portion of Dr. Shelig’s proposed evidence relates to his perception of the applicant and his work. I expressed concern as to the relevance of this proposed evidence to the matters at issue in this proceeding. The second portion of Dr. Shelig’s proposed evidence relates to Dr. Shelig’s own experience as a racialized person at the University. In this portion of his evidence, Dr. Shelig makes reference to certain comments or conduct, without providing any particulars as to when this conduct is alleged to have occurred or who was responsible for the conduct. In particular, Dr. Shelig does not identify that any of the individuals who were responsible for the decisions made or actions taken in relation to the applicant were responsible for this conduct.

9In response, the applicant submits that, as the respondents’ main argument is that he was not qualified for promotion to Associate Professor, they thereby have placed the applicant’s qualifications, including his capability as a teacher, directly in issue. It is submitted that Dr. Shelig’s perception of the applicant and his work is directly related to this issue. The applicant further submits that Dr. Shelig’s evidence may provide an important reason why some students may have taken issue with the applicant’s teaching style, which was not considered by the respondents when evaluating the applicant’s promotion application.

10With regard to the balance of Dr. Shelig’s proposed evidence, it is submitted that this evidence serves to illustrate the institutional culture in the Department of Cardiology in which the issues in this proceeding arose. It is submitted that Dr. Shelig’s proposed evidence was not intended to address the individuals responsible for the decisions and actions at issue in this proceeding, and that to require this as a pre-condition to admissibility is tantamount to requiring Dr. Shelig to produce a veritable “smoking gun”. It is submitted that this proposed evidence may provide some helpful context and background for the determination of the matters at issue in this proceeding, particularly in view of the fact that Dr. Shelig is a racialized person.

11The respondents object to Dr. Shelig’s evidence as irrelevant and inadmissible.

12With regard to the first portion of Dr. Shelig’s proposed evidence, I do not find it to be relevant or helpful to my determination of the matters at issue in this proceeding. As I understand the respondents’ position, one of the reasons for denying the applicant’s promotion is that his promotion dossier did not indicate a “high quality” of research and publications. Whether or not that is the case in comparison with other candidates who were promoted to Associate Professor in the School of Medicine at or around this time is a matter for me to determine. But Dr. Shelig’s personal opinion that the applicant was “stronger than the other physicians within the cardiology division” is not relevant or helpful to making this determination.

13The other basis upon which the respondents say that the applicant did not receive a promotion was that his teaching, while “good”, did not reach the level of being “very good” or “excellent”. I understand that the applicant himself has provided evidence of his “blunt, plain-speaking way … that is a function of his cultural upbringing” that “does not necessarily resonate with Canadians and … is at times misinterpreted by students and colleagues”. I address this issue below and find that this proposed evidence should be struck. Dr. Shelig’s proposed evidence is also inadmissible on the same basis. Further, Dr. Shelig does not provide any evidence that he raised any concern with the respondents that the applicant’s manner of speaking caused a negative reaction from students that was culturally biased.

14Further, as noted by the respondents, Dr. Shelig provided a letter in support of the applicant as part of the promotion process. This letter forms part of the applicant’s promotion dossier, which was considered by the respondents during the promotions process, and does not raise any of the issues about how students may have responded to the applicant’s manner of speaking as Dr. Shelig now proposes to give.

15As a result, I also find Dr. Shelig’s evidence on this point not to be relevant or helpful to my consideration of the matters at issue in this proceeding.

16With regard to Dr. Shelig’s proposed evidence regarding his own personal experience as a racialized person at the respondent University, I remain concerned about the impressionistic nature of this proposed evidence and its lack of connection to any of the individuals who were responsible for the decisions or actions at issue in this proceeding. I do not agree with the applicant’s assertion that requiring Dr. Shelig to provide such evidence is tantamount to requiring him to produce a “smoking gun”. It is not my expectation that Dr. Shelig provide evidence that one of the individuals involved in the decisions or actions at issue admitted to him that they racially discriminated against the applicant. That, I well know, is not the manner in which racial discrimination commonly manifests itself in the 21^st century. However, if Dr. Shelig had experiences with any of the individuals who were responsible for the decisions or actions at issue that were indicative of racial bias on their part, such evidence may be relevant to my determination of the issues before me. But no such evidence is provided by Dr. Shelig.

17Accordingly, I find that Dr. Shelig’s evidence is not relevant to my determination of the matters at issue in this proceeding, and I strike his witness statement.

Proposed evidence of the applicant

18In my last Interim Decision, I expressed concern about the applicant’s proposed evidence as set out in paragraphs 149 to 153 and 159 to 163 of his witness statement. These paragraphs relate to the applicant’s interactions with his colleagues and contain allegations of conflicts that the applicant states may be attributable to his cultural background. My concern was that, to the extent that these are allegations being relied upon by the applicant in support of his allegations of racial discrimination, they were not set out in his complaint or in the statement of additional facts that he filed in this proceeding. In contrast, the conflict with Dr. Hudson addressed at paragraphs 154 to 158 of the applicant’s witness statement was addressed in the applicant’s statement of additional facts.

19In response, the applicant submits that the evidence at paragraphs 151 to 153 was included in the applicant’s witness statement in order to respond to certain documents included in the respondents’ productions, which describe interactions that the applicant had with a number of doctors. The applicant states that he is not intending to establish discrimination arising directly out of these incidents, but submits that these incidents are indicative of how he was treated in the Cardiology Department and shed further light on how he was treated in the promotions process.

20The respondents object to this proposed evidence on the basis that the applicant is not being asked to respond at large to all of the arguably relevant documents they produced as part of their obligations under the Rules, and submit that this evidence is irrelevant.

21Having reviewed the documents referenced by the applicant, I am prepared to allow the paragraphs that set out the applicant’s side of these incidents, namely paragraphs 151 to 153. Whether or not the interactions addressed in these paragraphs and the pertinent documents which form part of the applicant’s employment file were considered as part of the promotions process or in the applicant’s performance appraisal issued in 2007 are matters that can be addressed at the hearing.

22I remain, however, concerned that in paragraphs 149 and 150, the applicant appears to be raising new allegations that were not raised either in his complaint or in his statement of additional facts. These allegations are that the applicant believes that some of his colleagues “resented being challenged or having their medical opinions questioned by someone from a racialized community and whose training stemmed from an African medical center” and that “these conflicts may also be attributable to [the applicant’s] cultural background” which the applicant describes as including “a blunt, plain-speaking way of expressing [himself]”.

23In order for this evidence to be relevant to the matters at issue before me, it must have some connection to the applicant’s allegations regarding the denial of promotion or his performance appraisal. While the applicant submits that he is not intending to establish racial discrimination arising directly out of these incidents, the allegations raised in paragraphs 149 and 150 can only be relevant if the applicant is alleging that his race and cultural background was a factor in these conflicts with colleagues and students and that this then became a factor in either the denial of a promotion or his performance review. If the applicant was raising an allegation of this nature, I would have expected such an allegation to appear either in his complaint or in his statement of additional facts, which it does not. It is not appropriate for the applicant to raise what, in my view, is a new allegation of racial discrimination in a witness statement filed shortly before the hearing. This is particularly the case in the context of a transitional application under s. 53 of the Code, which must be based on the subject matter of the complaint as filed with the Commission. Accordingly, I hereby strike paragraphs 149 and 150 of the applicant’s witness statement.

24With regard to paragraphs 160 to 163, the applicant submits that the evidence regarding the loss of his secretary complements his evidence regarding interactions with some other doctors and was raised by him with the promotions committee. I have carefully reviewed the applicant’s response to the promotions committee dated November 9, 2006 and see that he does make a brief statement about not having an assistant. However, there appears to be an insinuation in paragraphs 161 and 162 of the applicant’s witness statement that his assistant stopped working for him due to a “conflict” which may be attributable to the applicant’s cultural background, when these paragraphs are read in conjunction with paragraphs 149 and 150. Once again, this is not an allegation raised in the applicant’s complaint or statement of additional facts. While I am prepared to allow these paragraphs to stand given that I have struck paragraphs 149 and 150, I will consider this evidence only in the context of the applicant not having an assistant and will not consider this individual’s statement about being “conflicted” for any other purpose.

Proposed evidence of Dr. Silverman

25In my last Interim Decision, I also expressed concern about the proposed evidence of Dr. Robert Silverman, which questions the validity of the methodology used and conclusions reached in the Henry Report. I expressed concern both as to the relevance of this proposed evidence, and as to the appropriateness of this evidence in the context of the University’s official response to the Henry Report.

26In response, the respondents state that the proposed evidence of Dr. Silverman was submitted prior to my last Interim Decision due to a lack of clarity as to the purpose for which the Henry Report would be used by the Tribunal. The respondents state that if the Henry Report will only be used by the Tribunal as helpful context and background and not as proof of systemic discrimination at the University or in the Cardiology Department, then they agree that there is no need for Dr. Silverman’s evidence. However, if the Henry Report will be relied upon as providing proof of systemic discrimination, then the respondents state that they require Dr. Silverman’s evidence in order to challenge the methodology used in the preparation of the Henry Report.

27The applicant objects to this evidence as unnecessary and inadmissible.

28I will repeat again that it is not my task in this proceeding to determine whether there is systemic discrimination at large at the respondent University. My task is to determine whether the applicant experienced racial discrimination in relation to the denial of a promotion to Associate Professor and in relation to the performance appraisal he received in 2007. As part of this task, various reports, policies and other documents regarding race and equity issues may be relevant as providing the broader institutional context in which the alleged acts of discrimination occurred. The Henry Report is one of these reports. While I certainly have no intention of relying upon the Henry Report as “proof” of systemic discrimination at large at the University, which as I have said is not my task in this proceeding, I may rely upon the Henry Report as one piece of relevant evidence that helps to inform my determination as to whether the applicant experienced racial discrimination.

29Having said that, it is not clear to me whether the respondents have agreed to withdraw Dr. Silverman’s proposed evidence. In any event, as this evidence is being proffered as expert evidence, it is required to meet the test for admissibility of such evidence as referenced in my last Interim Decision. In my view, Dr. Silverman’s proposed expert evidence is not necessary to assist me as the trier of fact. Dr. Silverman’s proposed evidence speaks to such things as the small size of the focus groups, the limitations of relying upon a small sample of “volunteer” responders to a survey, the nature and design of the survey questionnaire, and the reliability of the conclusions reached. These are all limitations that are apparent on the face of the report, and I do not require Dr. Silverman’s evidence to assist me in understanding these limitations.

30Accordingly, I strike Dr. Silverman’s proposed evidence on that basis.

Request to strike proposed evidence of Dr. Goel

31On January 10, 2011, the applicant served and filed a Request for Order to strike the proposed evidence of Dr. Goel.

32In April 2008, following the denial of the applicant’s promotion and filing of his human rights complaint, Dr. Goel was retained by the respondent University to review the applicant’s promotion dossier and provide his opinion on the worthiness of the applicant for promotion in the context of the University’s policy. At the time, Dr. Goel was Vice-President and Provost of the University of Toronto. There is no dispute that prior to April 2008, Dr. Goel had no involvement in any of the decisions or actions at issue in this proceeding. Rather, Dr. Goel has stated in his proposed witness statement that he understood that his opinion was being sought by the respondent University as an independent reviewer who would be able to assess the applicant’s promotion application from a neutral and unbiased perspective. In this sense, it is clear that Dr. Goel’s evidence is being proffered by the respondents as opinion or expert evidence.

33The applicant submits that Dr. Goel’s proposed evidence does not meet the requirement of necessity as set out in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at para. 17. The applicant submits that one of the issues in this case is whether the applicant experienced racial discrimination in relation to the denial of his promotion application, and the issue of whether the applicant was qualified for such promotion will be one of the main “battlegrounds” between the parties. The applicant submits that Dr. Goel simply reviewed the documents from the promotion dossier in order to formulate his opinion, and that I as the trier of fact am capable of doing this without Dr. Goel’s assistance. In addition, the applicant submits that, in impugning the promotions process, one of the main contentions of the applicant relates to the differential and inappropriate manner in which the promotions policy was applied to him, and Dr. Goel did not engage in any review of issues about the manner in which the promotions policy was applied in the applicant’s case. The applicant submits that Dr. Goel’s evidence simply mimics evidence to be given by Dr. Hitchcock, who made the ultimate decision to deny the promotion, and as such is being adduced solely for the purpose of bolstering the University’s rationale.

34In response, the respondents submit that the assessment of promotion dossiers is not a matter within the particular expertise of this Tribunal, and that Dr. Goel has extensive experience in conducting such assessments.

35I agree with the applicant that Dr. Goel’s proposed evidence does not meet the requirement of necessity for the admission of expert evidence. One issue before me is whether the respondents engaged in racial discrimination against the applicant in relation to the manner in which they dealt with his promotion application. The respondents and their witnesses are quite capable of articulating their reasons for denying the applicant’s application, and they have done so at length in their witness statements. There certainly will be an issue before me as to whether the respondents’ stated reasons are credible and supported by the evidence, or whether it is more likely that the applicant experienced racial discrimination. The credibility of the respondents’ evidence will be tested on the basis of the applicant’s evidence and the materials relating to his promotion application, as well as a comparison with how other applications for promotion to Associate Professor were handled.

36Having carefully reviewed the witness statements filed by the respondents and their other witnesses, I have no difficulty understanding their stated rationale for denying the applicant’s promotion, which Dr. Goel’s evidence largely repeats. In my view, Dr. Goel’s evidence is not necessary to my determination as to whether the respondents’ stated reasons are credible on consideration of all of the evidence or whether it is more likely that racial discrimination occurred.

37Accordingly, I strike Dr. Goel’s proposed statement as inadmissible on the basis articulated above.

Other issues arising from the parties’ submissions

38As requested in my last Interim Decision, the respondents have filed an additional witness statement from Dr. Gordon Smith setting out steps taken by the University following the release of the Henry Report. As part of his submissions, and in response to Dr. Smith’s statement, the applicant has given notice that he intends to rely on two articles published in the Queen’s Journal in 2010 regarding the University’s lack of activity on race and equity issues.

39The respondents object to the introduction of these documents.

40While I have broad discretion regarding the admissibility of evidence, I am not prepared to accept these journal articles, which are really in the nature of newspaper or opinion pieces, into evidence as I do not find them helpful. The applicant may ask questions in cross-examination of Dr. Smith which are relevant to this stage of the inquiry, including relevant questions arising out of information in these articles, but I will not allow the introduction of the articles themselves as proof of their contents.

Further case management directions

41In his submissions, the applicant sought clarification on a number of case management issues, as follows:

a. Proving documents: It is my practice to mark the Books of Documents submitted by the parties as exhibits at the outset of the proceeding, and not to require the individual identification of each document by a witness. As articulated by the applicant, I do not require any independent proof as to the authenticity of the documents, namely that each document was prepared by the ostensible author, on or about the date indicated, was sent to the ostensible recipient, records who was in attendance at meetings etc. If any party has a concern about the authenticity of any specific document, this can be raised at the hearing.

While I accept that the respondents’ submission that this is not the manner of proving documents and marking exhibits as is typical in a court proceeding, this Tribunal has a statutory mandate to engage in hearing processes other than traditional adversarial, adjudicative processes. The manner of marking exhibits that I typically use is relatively common, not only at this Tribunal but also at other administrative tribunals including, for example, the Workplace Safety and Insurance Appeals Tribunal and the Canada Industrial Relations Board. I prefer to devote hearing time to the hearing of meaningful evidence, and in my view it is not a good use of hearing time to have witnesses identify documents solely for the purpose of identifying documents.

b. Re-examination: Re-examination will of course be allowed following cross-examination. I do not typically include an allocation of time for re-examination as they are typically quite short and I strictly enforce the requirement that re-examination is restricted to matters arising out of cross-examination.

c. Closing submissions: I did not include time in the allocation for closing submissions as it appeared to me that the three scheduled hearing days would be taken up with hearing evidence. The parties appear to be in agreement to file their closing submissions in writing in accordance with the schedule proposed by the applicant. This can be discussed further at the hearing.

d. Reply evidence: While I have not allocated specific time for reply evidence, if the applicant intends to tender any evidence in reply following the respondents’ evidence, then it is my expectation that this would be done before we conclude on January 20, 2011.

e. Evidence by video-conference: The applicant has requested that his witnesses, other than himself, be permitted to testify by video-conference. Given my rulings, this would apply only to Dr. Koschinsky, whom I understand now works in Windsor. The Tribunal does not have video-conference facilities in Kingston. Given the nature of her evidence, I am prepared, however, to allow her to testify by teleconference. The applicant is directed to come to the hearing on January 18, 2011 with a specific phone number and time on that day when Dr. Koschinsky can be reached to provide her evidence.

42No party has taken objection to the time allocations provided in my last Interim Decision. The following timetable reflects the removal of Dr. Goel and provides time allocations for the evidence of Dr. Smith.

Examination

Cross-Examination

Dr. Koschinsky

15 mins.

45 mins.

Dr. Ogunyankin

1 hour

4 hours

Dr. Abdollah

15 mins.

1.5 hours

Dr. Adams

15 mins.

1.5 hours

Dr. Dixon

10 mins.

1 hour

Dr. Hitchcock

15 mins.

1.5 hours

Dr. Hudson

15 mins.

1.5 hours

Dr. Jeffrey

15 mins.

1.5 hours

Dr. McCans

20 mins.

2 hours

Dr. Sanfilippo

10 mins.

1 hour

Dr. Smith

5 mins.

30 mins.