Ogunyankin v. Queen’s University, 2011 HRTO 22

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 4, 2011

Citation: 2011 HRTO 22

Indexed as: Ogunyankin v. Queen’s University

written submissionS BY

Kofoworola Ogunyankin, Applicant ) Sandra Barton, ) Counsel

Queen’s University, Gerald Adams, ) Andrea Risk, Robert Hudson and John McCans, ) Counsel Respondents )

1The purpose of this Interim Decision is to address the Request for Order made by the respondents dated December 14, 2010 and the supplementary Request by the respondents made by correspondence dated December 21, 2010. Given that the hearing in this matter is scheduled to commence in Kingston on January 18, 2011, the applicant was directed to file his Response to Request for Order including any submissions in response to the supplementary request by no later than 10:00 a.m. on January 4, 2011, which he did and which I have considered for the purpose of this Decision. I will also address case management matters relating to the hearing.

2The respondents requested that their Request be dealt with by way of conference telephone call, while the applicant expressed that the Request could be dealt with in writing. In my view, this matter can be addressed sufficiently in writing and a conference call is not necessary.

The Respondents’ Request for Order and Supplementary Request

3The respondents’ first Request relates to a witness statement filed by the applicant from Dr. Frances Henry. The respondents request that paragraphs 2 to 4 of Dr. Henry’s witness statement, which review her expertise in the area of anti-racism scholarship and as an expert witness, be struck as Dr. Henry was not at that time being presented as an expert witness (subsequently an expert report from Dr. Henry was filed, which I will address below). The respondents also seek to strike paragraphs 10 to 13 of Dr. Henry’s statement, which review the conclusions reached by her in a 2003 report entitled “Systemic Racism towards Faculty of Colour and Aboriginal Faculty at Queen’s University” (the “Henry Report”) and her understanding of steps taken by the University subsequent to her report, as inadmissible opinion evidence.

4The applicant takes the position that as he is relying upon the Henry Report in support of his allegations, he is obliged to call Dr. Henry as a witness. In addition, the applicant submits that it should not be open to the respondents at this stage to challenge the findings in the Henry Report, given that the Report was not challenged and indeed was accepted by the University at the time it was submitted.

5The Henry Report was filed by the respondents as part of their Books of Documents to be relied upon at the hearing, together with other reports and policies dealing with equity, diversity and race relations at the University. The Henry Report was commissioned by the University’s Senate Educational Equity Committee (“SEEC”) as a result of the departure from the University of a number of faculty members who were members of racialized groups and who attributed their departure from the University to racism.

6In my view, the Henry Report speaks for itself, including its acknowledgement of the limitations of the research conducted, and it is not necessary for me to hear oral evidence relating to the contents of the Report, which I can read for myself. As I have stated in previous Interim Decisions in this matter, the focus of the inquiry at the hearing in this matter is on whether the applicant experienced racial discrimination in relation to the denial of a promotion to the position of Associate Professor and in relation to the performance appraisal he received in 2007. The Henry Report, together with all of the reports and policies dealing with equity, diversity and race relations at the University submitted by the parties, may provide some helpful context and background for this inquiry. But the inquiry remains focused on the applicant’s allegations of racial discrimination and whether the evidence tendered at the hearing is sufficient to establish that he experienced racial discrimination in violation of the Code in relation to his allegations.

7Accordingly, in my view, it is unnecessary and duplicative for the applicant to call Dr. Henry to give oral evidence regarding a Report that will be in evidence before me. As a result, I strike the paragraphs in Dr. Henry’s statement, namely paragraphs 5 to 12, which simply deal with the background, methodology and conclusions of the Henry Report as well as the response by the SEEC to the Henry Report, which also is in evidence before me.

8Paragraphs 13 and 14 of Dr. Henry’s statement relate to her understanding of steps taken by the University in response to the Henry Report. Her evidence in these paragraphs relate to steps taken by the University in 2007 and subsequently, which she states she found from the University’s website. The first specific step identified by Dr. Henry is attributed to November 16, 2007, when the University appointed a Diversity Advisor, which is after the applicant’s departure from the University. While steps taken by the University subsequent to the applicant’s departure may be relevant in terms of remedy, the hearing in this matter has been bifurcated such that the Tribunal will first be addressing the issue of liability, and then subsequently will address any remedial issues if a violation of the Code is found. As a result, the specific steps taken by the University and identified in Dr. Henry’s statement are not relevant at this stage of the inquiry.

9As a result, in my view, the only relevant and non-duplicative evidence tendered by the applicant in Dr. Henry’s statement is what is implicit in her proposed evidence, namely that during the period following the filing of the Henry Report and up to the time of the applicant’s departure from the University in July 2007, the University took no specific steps in response to the Henry Report or the SEEC’s response to her Report. In my view, it is not helpful to me to hear oral evidence from Dr. Henry about the absence of evidence of steps taken by the University or to devote time at the hearing for respondents’ counsel to challenge the basis of Dr. Henry’s knowledge on this point. What would be helpful to me is for the respondents, if they contest the assertion that no steps were taken in response to the Henry Report and the SEEC response prior to the applicant’s departure, to provide a short statement of evidence, perhaps from the University President at the time, setting out what specific steps were taken. If the respondents intend to tender any such evidence, they shall serve and file this material by no later than January 11, 2011.

10Accordingly, in my view, I do not need to hear Dr. Henry’s evidence as set out in her witness statement, and this statement is struck. As this statement has been struck, I do not need to address the respondents’ alternative Request for an extension of time to tender expert evidence of their own.

11The respondents next request production of all notes and records which provided the foundation for the Henry Report. The material that formed the basis for the Henry Report appears to have been collected by the University itself under the auspices of the SEEC, but then transferred to Dr. Henry and is no longer in the University’s possession. The applicant states that Dr. Henry has confirmed that she is no longer in possession of any of this material.

12In any event, in my view, this material is not relevant to the specific matter before me, which is whether the applicant experienced racial discrimination in relation to the specific allegations he has raised. As stated above, the Henry Report, together with all the other materials and policies submitted by the parties, may provide some helpful context and background. But it is not necessary, in my view, to have the parties engage in an exercise of “drilling down” into the material forming the foundation for the Henry Report, which would only serve to unduly prolong the hearing and distract from the focus of the inquiry, which is on the applicant and his allegations of racial discrimination. Accordingly, the respondents’ Request for production of these materials is denied.

13The respondents also request that certain portions of other witness statements be struck. As an introductory matter, the respondents state that my earlier direction to the parties to file complete statements of evidence which would then be affirmed by the witnesses at the hearing, does not allow for early objections as would be made if the witnesses were providing their evidence orally. In fact, the respondents have done what they ought to in order to raise an objection to proposed witness evidence, which is to make a request that the offending paragraphs be struck. This is no different than in court proceedings, such as applications or summary judgment motions, where evidence is filed by affidavit.

14In their materials, the respondents state that their objections include but are not limited to certain identified paragraphs. The applicant takes the position that if the respondents were objecting to any of his proposed evidence, it was incumbent upon them to identify the specific paragraphs being objected to, particularly at this late stage of the proceeding. As the respondents have not identified any other specific paragraphs to which they object, I will restrict this Interim Decision only to the specific paragraphs identified.

15The respondents first raise an objection to paragraphs 3 to 6 of the witness statement of Dr. Marlys Koschinsky, in which she speaks of the “culture of research”, or rather the absence thereof, in the Cardiology Division. The respondents state that Dr. Koschinsky was never a member of the Cardiology Division or even of the Department of Medicine, and so cannot speak directly to that Division’s research culture and her evidence must accordingly be based on hearsay.

16In response, the applicant states that, through her involvement in the Cardiac, Circulatory and Respiratory Research Group at the University and as a faculty member in the Faculty of Health Sciences, Dr. Koschinsky has a sufficient direct basis for her evidence regarding the research culture in the Cardiology Division, and her evidence is not hearsay.

17In my view, the concerns expressed by the respondents regarding Dr. Koschinsky’s evidence go to weight rather than to admissibility in this proceeding, and can be addressed in cross-examination. Even if Dr. Koschinsky’s evidence is in fact hearsay evidence, under the Statutory Powers Procedure Act, I do have the discretion to admit such evidence.

18The respondents also object to paragraphs 11 to 17 of Dr. Koschinsky’s statement, which discusses the promotions process for faculty members in the basic science departments of the University. The respondents state that this promotions policy is separate and distinct from the promotions policy that applied to the applicant as a clinical faculty member who was not governed by the University’s collective agreement with the Queen’s University Faculty Association (“QUFA”). The applicant takes issue with this objection on the basis that the respondents have not provided any affidavit evidence in support of their motion to establish that there are different procedures, and in any event submit that Dr. Koschinsky has familiarity with the promotions process in general.

19Once again, in my view, the concerns raised by the respondents relate to the weight to be given to Dr. Koschinsky’s evidence, rather than its admissibility. Her statement speaks of her understanding of the promotions process and the basis for that understanding. If there are differences between the promotions process for QUFA members as opposed to clinical faculty members like the applicant that are relevant to the issues before me, then this can be addressed by the respondents in cross-examination.

20Finally, the respondents object to paragraph 107 of the applicant’s witness statement, which contains information about the personal respondent Dr. Adams’ status at the University subsequent to the applicant’s departure. The applicant takes the position that as Dr. Adams’ competence and experience to fairly assess his work is at issue in this proceeding, evidence regarding the applicant’s understanding as to why Dr. Adams departed from this position is relevant.

21In my view, the status of Dr. Adams at the University subsequent to the applicant’s departure is not relevant to the matters at issue before me, and paragraph 107 of the applicant’s statement is struck. The issue before me as it relates to Dr. Adams is whether the applicant experienced racial discrimination in relation to the denial of his promotion to an Associate Professor position. In this regard, it may be relevant for me to consider such issues as why a reference was requested from Dr. Adams given the promotions policy and Dr. Adams’ status as an Assistant Professor, what weight was placed on Dr. Adams’ reference letter in the promotions decision and why, and what basis Dr. Adams had for the comments set out in his letter. In my view, the status of Dr. Adams at the University at a time subsequent to the promotion decision and even to the applicant’s departure from the University is not relevant to these issues. Given my determination on this issue, the applicant’s request for disclosure of Dr. Adams’ employment file is denied.

22In this regard, I note that Dr. Adams has responded to this information in the witness statement filed on his behalf. I will allow the respondents the opportunity to withdraw paragraph 32 of Dr. Adams’ statement, which responds to paragraph 107 of the applicant’s statement, if they so choose. The respondents shall inform the applicant and the Tribunal in this regard by no later than January 11, 2011.

23On December 17, 2010, the applicant filed an expert report by Dr. Frances Henry. In the supplementary request made by the respondents on December 21, 2010, the respondents object to this expert report on two bases: first, that it is beyond the scope of the parameters for filing supplementary statements as set out in my Interim Decision dated November 10, 2010, 2010 HRTO 2248; and second, on the basis that it does not satisfy the requirements for the admissibility of expert evidence.

24Dealing with the first objection, the applicant submits that the filing of Dr. Henry’s expert report was in accordance with the requirements of my prior Interim Decision. He states that he should be entitled to have the benefit of full disclosure prior to deciding whether to call expert evidence, and that it was only after full disclosure of all of the respondents’ materials had been made that Dr. Henry was in a position to conduct a full review of the material and prepare her expert report. I do not agree.

25In my previous Interim Decision, I ordered the respondents to produce certain additional materials. At paragraph 45, I stated that the applicant was still expected to comply with the December 3, 2010 deadline in relation to all evidence that he proposed to call at the hearing, but afforded the applicant a further two weeks to December 17, 2010 “to provide any further evidence arising solely out of the productions made pursuant to this Interim Decision”. The relevant productions ordered relate to the unredacted promotion dossiers for all faculty members within the School of Medicine who applied for promotion from Assistant Professor to Associate Professor during the period from 2004 to 2008 and Annual Reports for those faculty members in the Department of Medicine who applied for promotion from Assistant Professor to Associate Professor during that period.

26The proposed expert report of Dr. Henry goes well beyond the scope of a supplementary statement addressing only the material that I ordered to be produced. Dr. Henry’s expert report addresses this material only at paragraph 15, in which she states that the documents produced by the respondents in her view do not provide a sufficient amount of data on which to base a comparative analysis of the treatment received by members of the minority group or individual at issue and those similarly situated. This, in her view, is due to the high degree of variability in performance tasks and specializations within the School of Medicine at the University.

27The balance of Dr. Henry’s proposed expert report pertains to other criteria that this Tribunal could look to in order to assess whether the applicant experienced racial discrimination, including broader representation data and irregularities or inconsistencies in the promotion process as it was applied to the applicant. These portions of Dr. Henry’s proposed expert report do not reference or rely upon the material I ordered to be disclosed by the respondents in my previous Interim Decision, and instead review other material produced by the respondents at an earlier stage of the proceeding and the applicant’s own evidence about irregularities and inconsistencies in the promotion process and the performance appraisal as they were applied to him. All of this information was known to the applicant without recourse to the material that I ordered to be produced.

28Contrary to the applicant’s submission, I do not see any real barrier to the applicant having filed an expert report from Dr. Henry by December 3, 2010 based on the material disclosed at that time, and then filing a supplementary report, if necessary, based upon the additional material disclosed. If the applicant was unclear about this, he could have sought further direction from the Tribunal in this regard, which he did not do. In any event, in my view my prior Interim Decision is quite clear as to the scope of what supplementary evidence I was permitting to be filed by December 17, 2010, and Dr. Henry’s proposed expert report extends well beyond the permissible scope as detailed in that Interim Decision.

29Accordingly, I find that, with the exception of paragraph 15 of Dr. Henry’s proposed expert report, this report goes beyond the scope of the extension that I permitted to the applicant in my previous Interim Decision and should have been filed by the applicant by the December 3, 2010 deadline. I find that the proposed expert report of Dr. Henry, with the exception of paragraph 15, is inadmissible on that basis.

30In addition, I also find that the proposed expert report of Dr. Henry does not satisfy the criteria for admissibility of an expert report as set out in R. v. Mohan 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 as adopted by this Tribunal in Yousufi v. Ontario Police Services Board, 2009 HRTO 20.

31I do not question Dr. Henry’s expertise in the area of racial discrimination in employment settings, with particular regard to instances where universities are employers. Dr. Henry has been accepted as an expert witness in numerous court and tribunal proceedings, and has published extensively on issues of racial discrimination and in particular how this applies in the university setting.

32The issue for me is whether the material set out in Dr. Henry’s proposed expert report is necessary to assist me in my role as the trier of fact. This Tribunal, including myself, has issued numerous decisions recognizing that racial discrimination is subtle and elusive and can result even from unconscious actions on the part of individuals whose conduct is in issue. As a result, this Tribunal has recognized the importance of conducting a careful and thorough analysis of the evidence, including an examination of alleged inconsistencies or irregularities in the impugned conduct, in order to assess whether such evidence reveals indicia of racial discrimination sufficient to support a finding of a violation of the Code.

33The material set out at paragraphs 27 to 39 of Dr. Henry’s proposed expert report merely reviews the inconsistencies and irregularities alleged by the applicant to have occurred in the promotion and performance review process he went through. I am aware of these allegations and I also am aware that it is my job as the trier of fact to review the evidence relating to these alleged inconsistencies and irregularities to determine if in fact they occurred and if so whether they support a finding of racial discrimination. Dr. Henry’s proposed expert report is not necessary to assist me in this task.

34Paragraphs 18 to 26 of Dr. Henry’s proposed expert report review data relating to the representation of faculty members who identify themselves as “visible minorities” at the respondent University, which is largely based on material contained in documents produced by the respondents and filed with this Tribunal as well as certain online sources. To the extent that this data comes from the respondents’ materials, I am aware of it and can perform any necessary analysis that is relevant to the specific matters at issue before me. The data obtained online from the respondent University’s website relates to the period subsequent to the applicant’s departure from the University. The data obtained online regarding the overall percentages of “visible minorities” in the Canadian census in 2001 and 2006 is not, in my view, particularly helpful to my inquiry.

35Paragraphs 12, 13, 14, 16 and 17 of Dr. Henry’s proposed expert report relate to general principles regarding the assessment of whether racial discrimination has occurred, with which I and this Tribunal are familiar. The balance of the proposed expert report, with the exception of paragraph 15, merely sets out Dr. Henry’s background and expertise and the material reviewed for the purpose of preparing the expert report.

36With regard to paragraph 15 of the proposed expert report, I am aware of the variability in performance tasks and specializations of the individuals who applied for promotion to Associate Professor during the period from 2004 to 2008 and the difficulty in conducting a statistical analysis of this data. However, this does not necessarily mean that the material that I ordered produced may not be relevant to the matters at issue before me, either as supporting the applicant’s allegation that there were inconsistencies and irregularities in the promotion process as it applied to him or as supporting the respondents’ position that his research and teaching was assessed in a non-discriminatory manner.

37As a result, in my view, the proposed expert report is not necessary or helpful to me in my task as the trier of fact, and on that basis I also find that it is not admissible.

38Accordingly, the respondents’ supplementary Request is granted and the proposed expert report of Dr. Henry is struck.

Case Management

Concerns re: proposed evidence

39I have had an opportunity to review the witness statements for the witnesses that the parties propose to call at the hearing, and have a number of concerns that I would like the parties to address.

40First, with regard to the proposed evidence of D. Alissa Trotz, I am unclear as to the relevance of this proposed evidence to the matters at issue before me. 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 am concerned 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 7 years prior to the matters at issue in this proceeding.

41Second, I also am concerned 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 am concerned 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.

42Third, I am concerned 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 is 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.

43Finally, I am concerned about the proposed evidence of Dr. Robert Silverman, which questions the validity of the methodology used and conclusions reached in the Henry Report. I am concerned 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.

44Before ruling on the relevance and admissibility of this proposed evidence, I am affording the parties an opportunity to make written submissions in view of my concerns. The applicant shall serve and file any written submissions regarding the proposed evidence of Ms. Trotz and Dr. Shelig and the aforementioned paragraphs of his own statement by no later than January 11, 2011. The respondents also shall serve and file any written submissions regarding the proposed evidence of Dr. Silverman by no later than January 11, 2011. Any reply shall be served and filed by the respective parties by no later than January 13, 2011. I will make my ruling on this proposed evidence on January 14, 2011.

Further disclosure of documents by respondents

45I also have had an opportunity to review at least some of the volumes of documents filed by the respondents, and particularly have reviewed the promotion dossiers filed in relation to applications for promotion to Associate Professor in the Department of Medicine.

46In this regard, I am directing the respondents to serve and file supplementary witness statements from Dr. McCans and Dr. Jeffrey regarding the application for promotion of Dr. D’Arsigny. These supplementary statements should set out the basis for the decision to recommend Dr. D’Arsigny for promotion and should address the quality of her research and publications in light of the promotions policy and whether the amount of protected time that she had for research was considered. I also am directing the respondents to produce the C.V. submitted by Dr. D’Arsigny at the time of her application for promotion, and the minutes of the promotions committee’s meeting or meetings at which her application was considered. This material shall be served and filed with the Tribunal by no later that January 11, 2011.

47I have not yet had an opportunity to review the balance of the promotions applications produced in relation to the entirety of the School of Medicine. However, if there are other candidates who were promoted to Associate Professor and who had, shall I say, relatively less robust research and publications, I am directing the respondents to provide a supplementary statement from Dr. Jeffrey or perhaps Dr. Hitchcock or Dr. Dixon setting out the basis for the promotion recommendation and decision in light of the promotions policy and also to produce the candidates’ C.V.s at the time of application for promotion and the minutes of promotion committee meetings. This material also shall be served and filed by no later than January 11, 2011.

Timetable for evidence

48The hearing in this matter is scheduled to proceed in Kingston on January 18, 19 and 20, 2011. It is my intention, if possible, to complete the hearing of all of the witnesses’ evidence during these three hearing days.

49In furtherance of this objective, I am proposing the following timetable for supplementary examination and cross-examination of the witnesses proposed to be called by the parties. In terms of supplementary examination of the applicant and his witnesses, counsel should only address matters raised in the respondents’ witness statements to which the applicant and his witnesses have not already responded in their statements and should not repeat any of the evidence set out in the witness statements. In terms of supplementary examination by respondents’ counsel, this should only address oral evidence given by the applicant or his witnesses which was not already addressed in the statements filed for the respondent witnesses and should not repeat evidence set out in the statements. As previously indicated, at the commencement of each witness’s evidence, I will have them affirm the truth of the contents of their statement.

50In terms of cross-examination, the parties are not required to comply with the rule in Browne v. Dunn, as the witnesses will have had an opportunity to respond to contrary evidence in their statements of evidence and oral evidence. If some new and unanticipated contrary evidence arises at the hearing, this could be addressed in reply evidence.

51In setting time estimates for examination and cross-examination, I note that these are estimates only and are not intended to limit or cut off relevant evidence. If counsel or a party gets to the end of the allotted time, then I would hear from counsel what further areas of evidence they believe they need to cover to complete the examination or cross-examination and I would rule on what further evidence I wish to hear.

52The time estimates proposed for the witnesses are as follows. I have not included the proposed evidence of Dr. Shelig, Ms. Trotz or Dr. Silverman pending my determination regarding the relevance and admissibility of their proposed evidence. I also am proposing that the hearing on January 19 and 20, 2011 commence at 9:00 a.m. and all parties be prepared to continue the hearing days beyond 5:00 p.m. if required in order to complete the evidence.

Examination

Cross-Examination

Dr. Koschinsky

15 mins

45 mins

Dr. Ogunyankin

1 hour

4 hours

Dr. Abdollah

15 mins

1.5 hrs

Dr. Adams

15 mins

1.5 hrs

Dr. Dixon

10 mins

1 hr

Dr. Goel

15 mins

1.5 hrs

Dr. Hitchcock

15 mins

1.5 hrs

Dr. Hudson

15 mins

1.5 hrs

Dr. Jeffrey

15 mins

1.5 hrs

Dr. McCans

20 mins

2 hrs

Dr. Sanfilippo

10 mins

1 hr

53If any party has any objection to the above time estimates or manner of proceeding, they shall serve and file any written submissions by no later than January 11, 2011.