Kyoko Hattori v. University of Ottawa, 2011 HRTO 1747

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kyoko Hattori Applicant

-and-

University of Ottawa Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: September 22, 2011 Citation: 2011 HRTO 1747 Indexed as: Hattori v. University of Ottawa

1This is an Application filed on October 30, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination in goods, services or facilities and employment because of race, colour, ancestry, place of origin, citizenship, ethnic origin and disability. The applicant is an international student from Japan and is pursuing doctoral studies in psychology at the respondent University of Ottawa. In summary, the applicant alleges the respondent discriminated against her because of preconceived notions of her language proficiency, cultural norms and race regarding her academic evaluation, denied her a teaching position due to unwarranted concerns about her language proficiency, and failed to accommodate her disability-related needs academically and in respect of her need for financial support beyond the respondent’s normal time frame. The hearing of this matter is scheduled to begin on October 5, 2011.

2This Interim Decision deals with two Requests for Order during Proceedings (“RFOP”) filed by the respondents. The first, filed on July 8, 2011, seeks particulars and production of arguably relevant documents. The second, filed on August 26, 2011, seeks dismissal of portions of the Application because they are untimely. I shall deal with the second Request first.

Timeliness

3Section 34 of the Code establishes a statutory time limit for filing applications, subject to certain exceptions. The relevant portions of section 34 are as follows:

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.

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

4As noted, the Application was filed on October 30, 2009. Accordingly, allegations dating back to October 30, 2008, will come within the statutory time limit. The application, however, describes several alleged violations of the Code going back to March of 2004. The Tribunal will deal with allegations pre-dating October 30, 2008, only if the alleged facts form a series of incidents or the applicant can satisfy the Tribunal that the delay was incurred in good faith and no substantial prejudice will result.

5The alleged incidents occurring before October 30, 2008, gleaned from the Application are as follows:

1. The applicant was enrolled in PSY 5102, instructed by Dr. Valerie Whiffen, in the Winter 2004 session. In March 2004, the applicant began to suffer from anxiety related to completing assignments and adverse treatment from university staff. The applicant provided a doctor’s note to the director of her clinical program, Dr. Jane Ledingham, in March and April 2004. Dr. Ledingham recommended that the applicant not be subject to a final examination in PSY 5102, but the instructor, Dr. Whiffen, ignored the recommendation. Dr. Whiffen also unfairly accused the applicant of cheating on an assignment because Dr. Whiffen did not believe the applicant capable of the level of work produced.
2. The applicant re-enrolled in PSY 5102, instructed by Dr. Firestone in the Winter 2005 session. Dr. Firestone afforded the applicant a substandard grade based on preconceived notions of the applicant’s language proficiency and culture.
3. During a practicum in the Winter 2006 session, Dr. Diane Vito subjected the applicant to infantilizing treatment and made comments about the applicant’s pace of speech.
4. In June 2008, the respondent denied the applicant the opportunity to teach a course and advised her to focus on other aspects of her studies.

The respondent also asserted in the RFOP that the Application alleged that in September and October 2008 the respondent failed to implement the accommodation plan developed for the applicant by the Student Appeal Centre and the Centre for Equality and Human Rights. However, there is no reference to September or October 2008 in the Application. Rather, the Application indicates that in the 2008-09 academic year the applicant requested a plan of accommodation to address her medical restrictions and she sought the assistance of the Student Appeal Centre and the Centre for Equality and Human Rights. According to the Application, this accommodation plan was forwarded to the respondent in February 2009, but the respondent failed to accommodate the applicant. Consequently, the allegation is timely and there is no need to address it in this decision.

Respondent’s Submissions

6The respondent submitted the applicant cannot establish that the events in question constitute a series of incidents or establish that the delay was incurred in good faith. First, the respondents point to multiple year-long gaps between the events. Second, the respondents submit that each of the events in question is discrete and unconnected to the others. For example, the applicant alleged that Dr. Whiffen denied her accommodation for her disability in a course in 2004, but the applicant alleged the events occurring in 2005 were discrimination based on Dr. Firestone’s preconceived notions about her language proficiency and cultural norms. The allegations therefore are unconnected by ground of discrimination, temporal proximity or the individuals involved.

7The respondent submitted the applicant provided no particulars explaining why the events in question are connected to each other or to any of the timely allegations. The events are in respect of different professors and staff members, different courses and different grounds of discrimination. The only connection, submitted the respondent, between the out-of-time events and the in-time incidents is the connection to the University of Ottawa. This connection does not create the required nexus between events, and, if it did, then any allegations against an institution would be a “series of incidents” under section 34(1)(b).

8The respondent noted that the Application provided no explanation for the delay in commencing this proceeding for five years and seven months after she first allegedly experienced discrimination. Further, the respondent pointed out that the applicant was able to continue her doctoral studies in the period under consideration and pursued various proceedings to appeal marks, demand accommodation and request funding.

Applicant’s Submissions

9The applicant submitted that the events in question do form a series of incidents for the purposes of section 34(1)(b) of the Code and any delay was incurred in good faith.

10The applicant acknowledged that the incidents involving Dr. Whiffen and Dr. Firestone did not originate from the same individual. However, the applicant submits Dr. Ledingham was responsible for assessing and resolving both cases; therefore, these incidents reflect a general discriminatory pattern of conduct within the Faculty of Psychology. The applicant also notes that she filed the Application against several individual respondents whom the Tribunal removed at the request of the respondents. The applicant notes that the former personal respondents were from two departments, the Department of Psychology and the Department of Graduate and Postgraduate Studies. The applicant submits that “[I]t is noteworthy, that the Department of Psychology’s Clinical Psychology program falls under the jurisdiction of the Department of Graduate and Postgraduate Studies (“FGPS”)”. As such, patterns of conduct could be established within those departments.

11The applicant stated that she did not pursue an application regarding the events occurring in 2004 and 2005 because, as I understand the submission, she was advised during a meeting convened to address her concerns at the time that this “issue should be handled without [resort to legal counsel]” and reference was made to a culture of fear created around the PSY 5102 course and students would not discuss the treatment of the applicant for fear of being forced out of the program. The meeting was attended by the applicant, doctors Whiffen, Firestone and Ledingham and the President of the Graduate Student Association, Shoshanah Jacobs. Accordingly, the applicant submits that she feared reprisal and ostracism if she filed an application and had a reasonable basis for such a belief. Only after she gained perspective on the events and receiving legal advice in 2008 was the applicant prepared to risk filing the Application with the Tribunal.

12In terms of “good faith” the applicant explained that she delayed filing an application with the Tribunal for fear of reprisal. She stated that she is now at a point of her studies that does not require interaction with department staff members and therefore feels less threatened to proceed with her Application.

13Nonetheless, the applicant submitted that she acted in good faith throughout the period in question. The applicant explained that she attempted to address her concerns amicably with both Dr. Whiffen and Dr. Firestone. With the help of Ms. Jacobs, she then organized a meeting with doctors Whiffen, Firestone and Ledingham to attempt to resolve her concerns. When the meeting produced no results the applicant appealed her grade to the FGPS Appeal Committee, which resulted in an improvement in her grade from C to C+. The applicant was not satisfied with this result and therefore appealed to the respondent’s Senate. The appeal was successful and the applicant was granted as grade of “S” (Satisfactory). Nonetheless, the applicant was not completely satisfied with the result, but did not pursue the matter further for fear of reprisal.

14The applicant also stated that given her “cultural background and experience she was particularly reticent to file a complaint outside the specific procedures for academic appeal of the University of Ottawa”. She also states that the procedures of the Senate Appeal Committee indicate that the committee’s decision “shall be final and binding” on the FGPS. Consequently, the applicant concluded that the committee’s decision could not be changed; therefore, she made no further inquiries about her rights.

15Finally, the applicant asserted alleged facts not contained in the Application, which the applicant asserts constitute a continuing series of incidents of discrimination within the meaning of the Code. In some cases, the facts provide particulars to allegations set out in the Application. However, some of the new facts amount to completely new allegations. These allegations are as follows:

1. Following the “Firestone incident”, the applicant began seeing additional patients at respondent’s Centre of Psychological Services in order to make up for time spent on her appeal. The respondent, however, only credited her with half of her working time and, to her knowledge, was the only student treated in this manner.
2. The applicant was exempted from the French second language requirement, as English-Japanese bilingualism was sufficient. Nonetheless, the applicant was assigned French supervision with Dr. Vito in 2006. The applicant requested an English supervision, but the request was denied.
3. In the summer of 2008, the respondent informed her that she had not fulfilled her second language requirement, which was contrary to the applicant’s understanding. The issue was resolved in her favour following a lengthy e-mail exchange with Dr. John Hunsley.

Analysis

16For the reasons that follow, I find that that the applicant has not established a series of incidents or that her delay was incurred in good faith.

Series of Incidents

17The Tribunal has held that to form a series of incidents within the meaning of the Code there must at least be some connection or nexus between the incidents that are alleged to form the series, and a series cannot be comprised of incidents relating to discrete and separate issues. See Baisa v. Skills for Change, 2010 HRTO 1621. The Tribunal has also said that incidents involving different facts and engaging different grounds under the Code cannot form a series of incidents for the purposes of section 34(1)(b). See Polihronakos v. Mississauga (City), 2010 HRTO 1433.

18The applicant alleges a series of incidents dating back to March 2004, over five years before she filed her Application. She alleges that in April 2004, Dr. Whiffen failed to accommodate her disability regarding examinations. In 2005, Dr. Firestone is alleged to have graded her unfairly based on inappropriate biases regarding her language skill and culture. The applicant alleges that sometime in the Winter 2006 session, Dr. Vito subjected the applicant to infantilizing behaviour, related to her language proficiency. In June 2008, the respondent allegedly denied her a teaching position. Accordingly, the incidents the applicant submits form a series involving different people, different factual allegations and engage different grounds of discrimination. The applicant stated that the events of 2004 and 2005 are related because Dr. Ledingham was involved in resolving both, although the Application also indicated that Dr. Ledingham recommended accommodation in one instance. Assuming Dr. Ledingham’s involvement was sufficient to connect the 2004 and 2005 incidents, these incidents would remain unconnected to the later allegations. The latest of the incidents in question, the alleged denial of a teaching opportunity in June 2008, also has no connection to the first timely allegation in the Application, which is an alleged failure to accommodate the applicant’s disability in February 2009. In my view, the incidents do not share a sufficient factual nexus to conclude they form a series within the meaning of s. 34 of the Code.

19The Tribunal has also held that incidents separated by a gap in time by a year or more will generally not be considered a series. See Chintaman v. Toronto District School Board, 2009 HRTO 1225, and Savage v. Toronto Transit Commission, 2010 HRTO 1360. Each of the successive incidents in question is at least one year apart and the gap between the incidents alleged to have occurred in 2006 and 2008 is up to two years. Accordingly, I find the incidents are also insufficiently proximate in time to be considered a series for the purposes of section 34.

Good Faith

20The Tribunal’s approach to delay is set out in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, at paragraphs 24 and 25:

In my view, where an applicant seeks to establish that a delay in filing an application was “incurred” in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.

In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2). For example, in Klein v. Toronto Zionist Council, 2009 HRTO 241, the Tribunal held that an applicant cannot justify a delay on the basis that they only later discovered evidence which would assist in proving their claim. In Lutz v. Toronto (City), 2009 HRTO 1137, the Tribunal held, referring to a number of Court decisions, that a delay may be found not to have been incurred in good faith where a party says simply that they were not aware of their rights, and made no inquires about options for pursuing the alleged wrong.

21In my view, the applicant has not met the onus on her to provide a reasonable explanation for her delay. The applicant explained that she feared reprisal, pursued remedies within the University of Ottawa and her cultural background and experience made her reticent to file a complaint outside of the university. She stated that she understood the decision of the respondent’s Senate Appeal Committee to be final and therefore did not inquire further about her rights. However, the applicant’s own submissions indicate that she was not at all reticent to pursue her rights using the respondent’s internal processes. She apparently did not fear reprisal in this context and other than a bald assertion there appears to be no basis for concluding that filing an application to the Tribunal would be more likely to prompt a reprisal from the respondent. The assertion that the applicant’s cultural background and experience prevented her from complaining to the Tribunal, a process external to the university, is similarly a bald assertion that, without particulars, cannot explain her delay.

22The Tribunal has stated on a number of occasions that pursuing other legal remedies before turning to the Tribunal will not normally be accepted as a good faith explanation for delay. Similarly, ignorance of one’s rights may in some circumstances amount to good faith, but the applicant must also establish that she had no reason to make inquiries about her rights. See, for example, Ramnath v. Peel Regional Police, 2010 HRTO 548, at paragraphs 12 and 14. The applicant states that although the Senate Appeals Committee granted her the mark of “Satisfactory” in PSY 5102, she was not entirely satisfied with the outcome. Nonetheless she did not pursue the matter further because the committee’s decision was “final and binding”. The decision may have been final and binding insofar as the university’s internal processes were concerned. However, if she was unsatisfied with that result, it was, in my view, incumbent upon her to determine whether any external processes, such as complaining to the Tribunal, were available to her. In other words, she had every reason to inquire about her rights. Further, the Senate Appeal Committee dealt only with her grade in PSY 5102 in 2005, not any of her subsequent allegations. Consequently, the committee’s processes provide no explanation for the applicant’s delay after 2005.

New Allegations

23As noted above, the applicant introduced new allegations of misconduct by the respondent to establish a series of incidents bringing the untimely allegations within the statutory time limit. The respondents strenuously objected to the introduction of factual allegations not contained in the Application, particularly since the allegations are also highly contentious. The respondent submits that the RFOP regarding timeliness should be determined on the facts presented in the Application and not “on contested factual allegations.”

24The respondent’s request to dismiss portions of the complaint as untimely came quite late in the proceeding and at the pre-hearing stage there are no uncontested factual allegations. Nonetheless, the new allegations the applicant raise amount to a significant expansion of the Application, to which the respondent has had no opportunity to respond. Normally, adding to an application in this way would require a request to amend it. At this late stage of the proceeding, I would not be inclined to grant such a request. In my view, consideration of the RFOP should be confined the facts set out in the Application and particulars provided by the applicant.

25Even assuming these new allegations were properly before me, however, they do not in any event establish a series of incidents for the purposes of section 34(1)(b). The assertion that the respondent only credited her with half of her working time, apparently later in 2005, is factually different than the other allegations and it appears the applicant considers this incident to be a reprisal for complaining about Dr. Firestone – a different ground under the Code. She did not state who was responsible for the decision. She alleges she was assigned a French supervisor, Dr. Vito, but does not say who was responsible for the supervisory assignment. As the applicant speaks Japanese and English, not French, this allegation appears to engage the ground of place of origin and ethnic origin. These allegations are factually distinct from the other incident alleged to occur in 2006 and appear to involve different people. This incident allegedly occurred about two years prior to the next alleged incident in 2008. She alleges that in the summer of 2008, the respondent informed her that she had not fulfilled her second language requirement, which engages the grounds of place of origin and ethnic origin. The allegation is factually distinct from the other incident alleged to occur in 2008 and there is no assertion that the same people are involved. The second language requirement is factually distinct and engages a different ground than the first timely incident in the Application, which is an alleged failure to accommodate the applicant’s disability.

26Consequently, I find that applicant has neither established a series of incidents that would bring otherwise untimely allegations within the statutory time limit nor provided a reasonable explanation for the delay. Therefore she has not established that the delay was incurred in good faith. Having found no series of incidents and that the delay was not incurred in good faith, I need not address the issue of prejudice.

27The respondent’s Request is granted. The applicant may only rely on those incidents alleged to have occurred within the one year preceding the filing of the Application.

Request for Particular and Disclosure

28On July 8, 2011, the respondent filed a RFOP seeking particulars regarding an alleged act of discrimination and disclosure of all arguably relevant medical information regarding the applicant’s disabilities. The applicant did not respond to this RFOP.

29The request for particulars was in respect of an alleged incident that occurred in the winter of 2006 in Dr. Diane Vito’s supervision. As I have dismissed the Application based on incidents alleged to occur before October 30, 2008, particulars regarding this incident are unnecessary.

30Regarding medical disclosure, the respondent notes that the applicant alleges that she suffers from sub-supraventricular tachycardia, sleep apnea and anxiety and the respondent failed to accommodate her disabilities. The respondent further notes that the respondents requested disclosure of “all arguably relevant medical to these and other conditions that the Applicant alleges had an impact on her during her time in the Graduate Program in Psychology at the University of Ottawa”. To date the applicant has not produced the requested documents.

31The respondent submits that without this information, it will be prejudiced in its ability to defend the Application and “[g]iven the allegations of discrimination and failure to accommodate, this evidence is necessary for the Respondent to meet the case against it.” Accordingly the respondent seeks production of “…all arguably relevant medical documents, report, clinical notes, tests, lab results and all other medical documentation.”

32For the reasons that follow, the request for medical disclosure is denied at this time.

33At the pre-hearing stage, the Tribunal will generally order disclosure of arguably relevant documents, unless the documents are privileged or raise privacy concerns, see McKay v. Toronto Police Services Board, 2009 HRTO 1220. “Arguable relevance” is not a particularly high threshold, but the party seeking production must establish that the document(s) in question may prove or disprove a fact in issue in the dispute. The Tribunal has ordered production of medical information in previous cases (See for example, Iley v. Sault Ste. Marie Community Information and Career Centre, 2010 HRTO 880, and MacDonald v. Downtown Health Club for Women, 2009 HRTO 1043) where the party seeking disclosure, typically the respondent, established the arguable relevance of the information.

34The respondent did not state why the medical information it seeks is arguably relevant to any factual issue in the dispute or how it will suffer prejudice without access to these documents. Rather, the RFOP seems to assume that the applicant’s medical history is arguably relevant because the Application, in part, alleges a failure to accommodate the applicant’s disabilities. In cases where an applicant’s medical condition is in dispute, and particularly where a respondent wishes to retain its own medical expert to provide an opinion on the condition, the arguable relevance of the applicant’s pertinent medical history will be clear. However, based on the materials the parties filed with the Tribunal to date, the arguable relevance of the applicant’s medical history is not at all clear. The Response does not indicate any dispute about the applicant’s conditions, although the respondent does indicate that the applicant sometimes provided limited proof of it. Rather, the respondent’s case seems to be that it accepted the applicant’s needs and attempted to accommodate her; the applicant sometimes did not use the correct processes to seek accommodation; and the respondent is not required to provide some of the requested accommodations, extension of financial support in particular, because it would experience undue hardship. The parties have filed their witness lists and neither intends to call any medical evidence. Consequently, there is no basis at this point to conclude that the medical information the respondent seeks is arguably relevant. Should the relevance of this information become clearer in the course of the hearing, the respondent may revisit its request.

Order

35The Tribunal orders as follows:

1. The incidents in the Application alleged to have occurred prior to October 30, 2008, are dismissed. The hearing shall deal only with incidents alleged to have occurred within the statutory time limit.
2. Given the Tribunal’s order regarding timeliness, the respondent’s request for particulars is moot.
3. The respondent’s request for medical information regarding the applicant’s disabilities is denied.