Blakely v. Queen’s University, 2011 HRTO 114

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mathew Blakely

Applicant

-and-

Queen’s University

Respondent

INTERIM DECISION

Adjudicator: Mark Hart

Date: January 14, 2011

Citation: 2011 HRTO 114

Indexed as: Blakely v. Queen’s University

WRITTEN SUBMISSIONS BY

Mathew Blakely, Applicant ) Self-represented

Queen’s University, Respondent ) Andrea Risk, Counsel

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the Code), dated June 26, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on March 21, 2007.

2The purpose of this Interim Decision is to address the respondents’ Request for Order dated November 22, 2010 seeking orders: dismissing certain allegations raised by the applicant due to lack of timeliness; in the alternative, dismissing these allegations pursuant to s. 45.1 of the Code on the basis that they already have appropriately been dealt with in another proceeding; defining or narrowing the issues to those pertaining to the March 2007 hiring decision; requiring the applicant to provide particulars of his claim; and removing the personal respondents.

3This Interim Decision also will address the applicant’s Request for Order dated August 24, 2010 seeking production of certain documents.

4The respondents have requested that these matters be dealt with in writing. The applicant has requested that these matters be dealt with orally at the hearing in this matter, which is scheduled to proceed in Kingston on June 1, 2011. As these matters are preliminary and procedural in nature and impact the scope of the issues to be addressed at the hearing, it is not appropriate to defer their consideration to the time of the hearing. The applicant has been afforded an opportunity to respond to the respondent’s request in writing, which he did by filing a 22 page typewritten submission with supporting documents. The applicant also filed a written reply to the respondents’ submissions in response to his request for production.

5The applicant states that he has a learning disability, and he requested and was afforded additional time to respond to the respondents’ requests. The applicant also states that he is disadvantaged in this proceeding due to the fact that he is not a lawyer and has been unable to retain legal counsel. However, from my review of the applicant’s written submissions, I am satisfied that he understands the issues that have been raised and has been able to respond to these issues appropriately in writing. Accordingly, I will deal with the parties’ requests in writing.

Scope of the Application

6I first will address the respondents’ request for an order defining or narrowing the issues to those pertaining to the March 2007 hiring decision, as my disposition of this issue will determine the extent to which I need to address the issues raised regarding timeliness and s. 45.1 of the Code.

7This is a transitional Application filed pursuant to s. 53 of the Code. As a result, pursuant to s. 53, the Application must be based on the subject matter of the complaint as filed with the Commission.

8The applicant’s complaint squarely raises an issue regarding a decision made by the Seasonal Adjunct Hiring Committee on March 1, 2007 not to hire him for a position. While not stated in the complaint, there is no dispute between the parties that this position was as a Sessional Adjunct Instructor to teach a six-week module (Introduction to Drawing) in the spring term (May 7 to June 18, 2007). The complaint alleges that in making its decision, the hiring committee failed to follow a hiring process that the applicant states had been developed with the involvement of the University’s Human Rights Office and the University Advisor on Equity.

9The complaint alleges discrimination in employment because of disability and race contrary to sections 5 and 9 of the Code as well as reprisal contrary to sections 8 and 9 of the Code. While the body of the complaint is not entirely clear, the applicant appears to be alleging that his association with his supervisor, who is a woman of colour, was a factor in the denial of this position. He also states that he has a learning disability, and appears to be alleging that his disability was a factor in the denial of the position. The applicant’s allegation of reprisal appears to relate to the fact that he chooses to work with his supervisor, a woman of colour. There is no question that these allegations as they relate to the March 2007 hiring decision are within the scope of this Application.

10The complaint also includes a number of other matters. The complaint includes a paragraph which states:

In addition, I have a learning disability and I was verbally told by colleague that people with disabilities should not be allowed in Universities and I would be better at teaching in high school.

11The respondents state that this very same allegation was raised by the applicant with, and addressed by, the Queen’s University Human Rights Office in 2002 and 2003, and therefore pre-dates the filing of his complaint by at least three years. I will address the issue regarding the timeliness of this allegation below. However, at this point, as the allegation is squarely raised on the face of the complaint, it is within the scope of the Application pursuant to s. 53 of the Code.

12The complaint also includes a paragraph which states:

As well I have both experienced and witnessed various forms of harassment and discrimination throughout my employment with Queen’s University by specific members of the Art Department.

13No details or particulars are provided in the complaint regarding this alleged harassment and discrimination. As part of the Tribunal’s process in dealing with transitional applications, the applicant was afforded an opportunity to file a statement of additional facts to set out any additional material facts that he intended to rely upon at the hearing in support of the allegations raised in his complaint. In his statement of additional facts, the applicant did not provide any further material facts regarding his allegations of harassment and discrimination which pre-date the filing of his complaint on March 21, 2007. Accordingly, in the absence of any details or particulars regarding this general allegation, there are no specific allegations of discrimination or harassment raised in the complaint beyond the March 2007 hiring decision and the alleged comment about the applicant’s learning disability.

14In his written submissions in response to the respondents’ Request for Order, the applicant states that his complaint was based on his experiences of discrimination and harassment throughout his 20 contracts with the respondent University from 2000 to 2008 and in relation to various applications for employment that he made during the period from 2002 to 2008. He states that his complaint was not based on one isolated incident, but rather is part of a long-established pattern of attitudes and acts of discrimination and harassment relating to a poisoned environment.

15The problem with this submission is that the applicant did not, either in his complaint or in his statement of additional facts, provide or set forward any material facts to support allegations of discrimination or harassment during his 20 contracts with the University or in relation to applications for employment apart from the March 2007 decision or of a poisoned environment, with the exception of his allegation of discrimination in relation to the March 2007 decision and the alleged comment about his disability.

16The applicant in his statement of additional facts does raise a number of allegations that post-date his complaint to the Commission, and in his written submissions he states that he is also relying upon these allegations in this Application. The applicant states that subsequent to the filing of his complaint with the Commission, he kept the Commission informed regarding ongoing allegations of discrimination, harassment and reprisal.

17The problem with this submission is that there is no evidence before me that the applicant’s complaint was amended by the Commission to include the post-complaint allegations, or that any amendment was sought or discussed with the Commission prior to the commencement of the Application to this Tribunal, or that the respondents were put on notice of the post-complaint allegations and any intended amendment of the complaint prior to the commencement of the Application to this Tribunal. See Li v. Novopharm, 2009 HRTO 885 at paragraph 5. Accordingly, the post-complaint allegations raised by the applicant are beyond the proper scope of this Application.

18As a result, I find that the scope of this proceeding is restricted to the applicant’s allegation of discrimination and reprisal relating to the March 2007 decision not to hire him as a Sessional Adjunct Instructor and the alleged comment about the applicant’s disability.

Lack of Timeliness

19This raises the issue of the lack of timeliness of the allegations that I have found to be within the proper scope of this Application.

20No issue is raised as to the timeliness of the allegation relating to the March 2007 hiring decision, as the complaint was filed less than a month after this decision was known to the applicant.

21With regard to the alleged comment about the applicant’s disability, there is no precise evidence before me as to when this comment is alleged to have been made. However, from the material filed by the respondents with their Response, this allegation was addressed by the University’s Human Rights Office in a letter dated October 30, 2003 and so the alleged comment must have been made at some point prior to that time.

22The respondents take the position that this allegation falls outside the six month time period established by the old section 34(1)(d) of the former Code. However, that provision has been repealed and this Tribunal has no jurisdiction to apply that provision. The question of the timeliness of applications to this Tribunal is now addressed pursuant to section 34(1) of the Code, which provides a time period of one year from the incident forming the basis of the application or one year from the last incident if there is a series of incidents. This Tribunal has held that the relevant period for the application of s. 34(1) of the Code in relation to transitional applications is the one year period prior to the filing of the underlying complaint. See Taylor-Wright v. York University, 2010 HRTO 312.

23There is no question that the alleged comment was made well outside the one year period prior to the filing of the underlying complaint. Nor can this comment properly be regarded as forming part of a “series of incidents” within the meaning of section 34(1)(b) of the Code that extends to the hiring decision in March 2007. See Chintaman v. Toronto District School Board, 2009 HRTO 1225, which states that “a gap of more than one year between incidents in a series would in most cases interrupt the series” (see para. 11). Accordingly, I find that the alleged comment falls outside the one year time period within the meaning of s. 34(1) of the Code.

24As a result, I next need to consider whether the applicant has established that his delay in raising this allegation was incurred in good faith and that no substantial prejudice has been caused to the respondent as a result of the delay.

25In relation to the requirement to establish that the delay was incurred in good faith, this Tribunal has held that the onus is on the applicant to provide some reasonable explanation for the delay: Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339.

26No explanation has been provided by the applicant for his delay in proceeding with a complaint to the Commission regarding the alleged comment. Indeed, in the October 30, 2003 letter from the respondent University’s Human Rights Office, the applicant was expressly informed to seek the advice of the Commission regarding his allegations as the Commission was much more strict in the application of timelines for the filing of a complaint than the University.

27As a result, I find that the applicant has not provided a reasonable explanation to justify his delay in proceeding with his allegation in relation to the alleged comment about his learning disability, and as such I do not find that the delay was incurred in good faith. As both good faith and a lack of substantial prejudice must be established in order to justify a delay beyond the one year period, it is not necessary for me to consider the question of whether any substantial prejudice would be caused to the respondent.

Request for Particulars

28The effect of this Interim Decision is that the only remaining allegation that is within the proper scope of this Application is the applicant’s allegation of discrimination and reprisal in relation to the March 2007 hiring decision. As a result, there is no need for me to consider the respondents’ alternative arguments under s. 45.1 of the Code.

29With regard to the respondents’ request for particulars, the respondents state that the applicant’s allegations in respect of the job competition for the Sessional Adjunct Instructor position are ambiguous, especially with regard to his allegation of reprisal.

30In relation to the March 2007 hiring decision, this is a circumstantial evidence case. From the material I have reviewed, the applicant is not going to provide direct evidence of any statement or admission that his learning disability or his association with his supervisor was a factor in the hiring committee’s decision not to hire him for the position. This, of course, is not unusual.

31Rather, the applicant’s allegation appears to be that, based upon his qualifications and experience and status as a person with a disability, he ought to have been hired for the position, and the fact that he was not hired supports an inference that his learning disability or his association with his supervisor was a factor in the hiring committee’s decision.

32As stated above, the applicant’s allegation of reprisal as it is articulated on the face of the complaint relates to the fact that he chooses to work with his supervisor, a woman of colour. Whether or not that is sufficient in law to maintain an allegation of reprisal contrary to ss. 8 and 9 of the Code is a matter for argument at the hearing.

33In my view, the applicant already has provided sufficient particulars for the respondents to know the case they have to meet. In accordance with the well-established principles that this Tribunal applies when considering circumstantial evidence cases, and provided that an applicant satisfies the relatively low threshold of establishing a prima facie case of discrimination, the respondents are required to bring forward evidence of a non-discriminatory explanation for the hiring decision. This should include evidence as to why the successful candidate was considered to be a demonstrably superior candidate to the applicant, as required under the collective agreement, which is evidence exclusively within the respondents’ knowledge. At the end of the day, the Tribunal must consider whether the respondents’ evidence is credible and not a pretext for discrimination or whether it is more likely that the applicant’s disability or association with a member of a racialized group was a factor in the decision.

34Accordingly, the respondents’ request for particulars is denied.

Removal of Personal Respondents

35The respondents request removal of the personal respondents, citing the well-established principles set out in this Tribunal’s decision in Persaud v. Toronto District School Board, 2008 HRTO 31 at paragraph 5.

36In this case, the respondent University also is alleged to be liable for the conduct at issue in this proceeding, and the respondent University has accepted its deemed or vicarious liability for any conduct by the personal respondents as they were acting in the course of their responsibilities as employees of the University. There is also, in my view, no real issue as to the respondent University’s ability to respond to or remedy any alleged Code infringement that may be found.

37As with most cases involving a request for removal of personal respondents, the question comes down to whether there is any compelling reason to continue the proceeding as against any personal respondent. This depends, of course, upon a review of what specific allegations are made in the Application as against each personal respondent and whether the nature of those allegations provide a compelling reason to continue the proceeding as against that individual personally. As a result, I will review the allegations made as against each of the personal respondents at issue.

38With regard to Kathleen Sellers, the respondents state that she was not part of the hiring committee that made the decision at issue in this proceeding. This has not been disputed by the applicant. The applicant in his materials alleges that Ms. Sellers is part of a “toxic clique” in the Art Department that created a poisoned environment, that he initiated a work refusal against her in June 2007, that she questioned his skills and abilities, and that she made a false accusation against him in February 2007. None of these allegations are within the scope of this Application. Accordingly, there is no basis to continue the complaint as against Ms. Sellers and she is removed as a party to this proceeding.

39The remaining two respondents were part of the hiring committee that made the decision at issue in this proceeding. However, they are only two members of the hiring committee, which is comprised of three members. The decision not to hire the applicant was made by the committee as a whole, and the applicant has not brought forward any evidence to support that Mr. Schutze or Ms. Winton were particularly responsible for this decision or any alleged discrimination.

40Rather, the applicant stated in his written submissions that Mr. Schutze should continue to be named as a personal respondent due to his failure to acknowledge or act on the alleged poisoned environment and that Ms. Winton should continue as a personal respondent because she and her spouse have maintained a “toxic clique” in the department for years. Once again, these allegations are not within the proper scope of this Application.

41As a result, I do not see any compelling reason to continue this proceeding as against any of the personal respondents, and do not find that any significant prejudice would be caused by their removal.

42Accordingly, the personal respondents are all removed as parties to this proceeding and the title of proceeding has been amended accordingly.

Applicant’s Request for Production

43The applicant first requests documentation pertaining to the 1999-2000 Internal Academic Review of the respondent University’s Department of Art, including any submissions from external consultants, faculty and/or students.

44The applicant previously had made a freedom of information request for this documentation, and was provided with all material retained in the University’s archives. The applicant questions, however, whether other material pertinent to his request may nonetheless continue to reside in the possession of other department members, and seeks disclosure of that material.

45In order for this Tribunal to have a proper basis to order disclosure, the material sought must be arguably relevant to a matter at issue in the proceeding. For all of the reasons articulated above, the only matter at issue in this proceeding is the hiring decision made in March 2007. So, the question becomes whether this material is arguably relevant to that decision.

46The applicant in his reply submissions states that he wants this material because he believes that the review was highly critical of the Art Department and particularly the Bachelor of Fine Arts program. He also states that his complaint relates to subtle racism by his association with his supervisor, a woman of colour, and he believes that she was employed during the period prior to the review such that the review would cover the early days of her employment experiences at the University.

47None of these submissions explains to me how this review, which was conducted some seven years prior to the hiring decision at issue, is arguably relevant to that decision. Rather, the applicant appears to want disclosure of this material to support his contention that there was a poisoned environment in the Art Department, which as stated above, is not an issue within the proper scope of this Application. Accordingly, I find that the applicant has not satisfied me that the material sought is arguably relevant to a matter at issue in this proceeding and I decline to order its disclosure.

48The applicant next requests disclosure of documentation pertaining to the 2009-2010 Internal Academic Review of the Art Department, including any submissions. This review apparently has not yet been completed, however the applicant states that all Art Department members were provided with a copy of the review in the spring of 2010 and it is this version that he is requesting. Once again, however, the applicant has failed to indicate how this review is arguably relevant to the hiring decision at issue in this proceeding. Accordingly, I find that the applicant also has not satisfied me that this material is arguably relevant to a matter at issue in this proceeding and I decline to order its disclosure.

49Finally, the applicant requests disclosure of a letter dated December 2009 from 11 faculty members of the Art Department which he states requested that the Chair of that department step down. The individual who was Chair of the Art Department at the time of this letter was not named as a personal respondent to this proceeding nor is there any evidence that he was involved in the hiring decision at issue. Rather, he appears to be a person against whom the applicant has made allegations subsequent to the filing of his complaint. For the reasons stated above, these allegations are not within the proper scope of this Application. Accordingly, this letter is not arguably relevant to a matter at issue in this proceeding, and I decline to order its disclosure.

50I am not seized.