AlSaigh v. University of Ottawa, 2011 HRTO 1385

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Manal AlSaigh

Applicant

-and-

University of Ottawa, Paul Bragg, Fraser Rubens,

Thierry Mesana, and Roy Masters

Respondents

INTERIM DECISION

Adjudicator: Maureen Doyle

Date: July 25, 2011

Citation: 2011 HRTO 1385

Indexed as: AlSaigh v. University of Ottawa

1In a previous Interim Decision, 2010 HRTO 699, the Tribunal deferred this Application pending the conclusion of an academic appeal. The Senate Appeals Committee academic appeal proceeding has now concluded. By letter of April 14, 2011, the applicant has requested that the matter now be re-activated and brought forward for hearing. Enclosed was a copy of an Extract of the Minutes of the Senate Appeals Committee Meeting of March 11, 2011, regarding the applicant’s academic appeal, and the correspondence was copied to the respondents.

2By letter of April 15, 2011, the respondents confirmed that the Senate Appeals Committee had issued its decision on March 11, 2011, and requested that the Tribunal address their concerns regarding the applicant’s reply, as referred to in the Interim Decision, paragraphs 17 and 18. As the Interim Decision indicated that it was not necessary to address the matter of the respondents’ concerns given the deferral of the Application, the fact that the respondents now seek to have the matter of the applicant’s reply addressed leads me to conclude that the respondents have no objection to the applicant’s request that the Application now be re-activated. The respondents’ letter was copied to the applicant.

3While not following the form prescribed by Rule 14 of the Tribunal’s Rules of Procedure, I accept the above-noted correspondence as the applicant’s request that the matter proceed to a hearing and as the respondents’ response agreeing to the re-activation of the Application.

4In the circumstances, the request to proceed is appropriate and is granted. The Registrar shall schedule the Application for a hearing.

Applicant’s Reply

5The respondents submit that the applicant’s Reply is improper and is an abuse of process. The respondents argued by letter dated November 4, 2010, that the Reply was not limited to new matters raised in the Respondents’ Response, did not describe facts different from those contained in the Response and not included in the Application and contained new evidence that ought to have been included in the Application.

6The Tribunal’s Rules of Procedure deal with the matter of Reply at Rule 9. In particular, Rules 9.1 and 9.2 describe a proper Reply:

9.1 An Applicant who intends to prove a version of the facts different from those set out in a Response must deliver and file a Reply in Form 3 setting out the different version, unless it is already contained in the Application. An Applicant may also reply to any other matter raised in the Response.

9.2 The Reply must deal only with new matters that are raised in the Response.

7In her Reply, the Applicant indicated that she was replying to several new matters raised by the respondents in their response. In particular, she indicated that the new matters were:

• The program is not one where there is systemic discrimination because there are many Saudi residents who have graduated from the program.

• The application is a collateral attack on the RPC [Residency Program Committee] decisions.

• The Respondents has [sic] known that the Applicant believed that she was experiencing discrimination for over one year and did not investigate.

• The respondents’ request to defer.

8In her Reply, the applicant indicated that she would be calling evidence from other cardiac surgery residents from Saudi Arabia who claim to have experienced similar forms of discrimination in the Program at the respondent university. She identified four individuals and summarized what she expects their testimony will be. Additionally, in her Reply, she argued that the Tribunal has jurisdiction to consider her allegations and that the rule against collateral attack does not apply. She also states that the respondents acknowledged in their Response that they were aware of her complaints for over one year, and she states that they did nothing to investigate these allegations. She argues that the failure to investigate can amount to a breach of the Code. She also submitted that there was no reason to defer the Application.

9By letter dated November 8, 2010, the applicant noted that the respondents had not complied with the Tribunal’s Rules of Procedure and had not presented their request in Form 10 in compliance with Rule 19. The applicant stated, nonetheless, that the names of witnesses and the summary of their expected evidence was provided in good faith, even though production of this information is not required until the Tribunal sends Notice of Confirmation of Hearing to the parties. Further, with regard to her arguments regarding deferral, she submitted she had properly addressed the respondents’ request to defer.

10The matter of systemic discrimination was raised by the applicant in her Application. The respondent denied systemic discrimination by way of defence to the allegation. In her Reply, the applicant has indicated in some detail what evidence and what witnesses she proposes to call in support of this argument. According to the Tribunal’s Rules of Procedure, she would be required to produce this information to the respondents at a later point in the proceedings. While this information is not normally included in a Reply, I do not find that its inclusion in her Reply constitutes an abuse of process, as alleged by the respondents, and I note that the respondents will have an opportunity to provide further particulars with regard to the evidence upon which it seeks to rely at a later point in the proceedings.

11In their Response, the respondents argued that by commencing her Application, the applicant was attempting a “collateral attack” against the decision of the RPC. In her Reply, the applicant has addressed the respondents’ argument and I find that in doing so, she made proper Reply.

12In response to the question included in the Tribunal’s Form 2, “When and how did you first become aware of the events described in the Application?” the respondents stated that the applicant had

first alleged that she had been discriminated against in March 2009 when she challenged the Division of Cardiac Surgery Residency Program Committee’s (RPC) decision requiring her to repeat her entire PGY 3 year by launching an appeal. Following this, Dr. Al-Saigh filed a Grievance on April 23, 2009, which contains many of the same allegations raised in this Application.

13In her Reply, the applicant has alleged that the respondents knew for over one year that she believed she had been subject to discrimination, yet they failed to investigate and that this constitutes a separate breach of the Code. While the underlying facts were known to the applicant and were referenced in her Application, I agree that the allegation regarding a failure to investigate represents a new issue. In these particular circumstances, it is appropriate to allow the respondents to file a Supplementary Response to address this new allegation only.

Regarding Delay

14The Application was filed October 10, 2010, and the applicant indicates that the date of the last event when she alleges the respondent discriminated against her was December, 2009. In the narrative portion of her Application, she alleges that the respondent discriminated against her from the time of her first year in the educational program, being 2003.

15Section 34 of the Code provides:

34(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.

34(2) A person may apply under subsection (1) after the expiry of the time limit under that section 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.

16Upon review of the narrative provided by the applicant, it is not clear if all of the allegations in the Application constitute “a series of incidents”. Tribunal decisions have found that temporal gaps between allegations may interrupt “a series of incidents”.

17In the circumstances, the Tribunal requires submissions from the parties on the issue of delay. In particular, the parties should address whether the allegations in the Application constitute a “series of incidents” within the meaning of section 34(1)(b), and whether any delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay, within the meaning of section 34(2) of the Code.

Directions

18This Application is re-activated. The Registrar will schedule the matter for hearing in the normal course.

19Should the respondents wish to deliver a Supplementary Response with regard to the allegation of failure to investigate, they shall deliver a copy of the Supplementary Response to the applicant and file it with the Tribunal no later than 28 days after the date of this decision.

20The applicant is directed to deliver to the respondent and file with the Tribunal submissions on the issue of delay within 21 days of the date of this Interim Decision. The respondent may file submissions on the issue of delay within 28 days of the date of this Interim Decision. If either or both parties do not provide written submissions within the required time, the Tribunal may determine the issue of delay based only on the information in the file.

21I am not seized of this matter.