HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Yu-Wei Chen
Applicant
-and-
Laurentian University
Respondent
DECISION
Adjudicator: Janice Sandomirsky
Indexed as: Chen v. Laurentian University
APPEARANCES
Yu-Wei Chen, Applicant ) Farah Malik,
) Counsel
Laurentian University, Respondent ) Jack Braithwaite,
) Counsel
1The issue in this Application concerns the applicant’s employment as Research Scientist in the Central Analytical Facility – Analytical Environmental Section (“CAF liquid phase”) in the Department of Chemistry and Biochemistry at Laurentian University (the “University”). The applicant alleges that her rights under the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”) were infringed by the University when it decided to close the CAF liquid phase and eliminate her position as Research Scientist. She also alleges reprisal.
2The respondent takes the position that the decision–making in relation to the CAF liquid phase, and the applicant’s employment at that facility, were made for bona fide reasons related to the finances and administration of the Department of Chemistry and Biochemistry, and entirely unrelated to any of the Code protected grounds alleged by the applicant.
3This Application was filed on February 25, 2009, under section 53(5) of Part VI of Code. The underlying human rights complaint was filed with the Ontario Human Rights Commission on November 25, 2007, and abandoned upon filing this Application with the Tribunal.
4The hearing took place over five days: March 1, September 20, and 21, November 17, and 18, 2010. The applicant testified as well as a number of her university colleagues: Dr. Glenn Parker, Dr. Joy-Gray Munro, Dr. Nelson Belzile, and Luc Beaudet. The University called Dr. Patrice Sawyer, the former Dean, Faculty of Science and Engineering, and Mr. Branko Rayakovich, Director, Human Resources, as witnesses. The parties presented final submissions on December 22, 2010.
BACKGROUND
5The applicant self identifies as a visible minority woman of Chinese and Han origin. She is trilingual, being fluent in English, French and Mandarin. The applicant has been affiliated with the University in a number of capacities since 1994 and is currently an adjunct professor in the University’s Department of Chemistry and Biochemistry. This position, while an honorary one, does not provide any remuneration. She specialized in environmental analytical chemistry, chemical method development and speciation.
6The University established the Central Analytical Facility (“CAF”) in the 1980s to provide infrastructure support for research and teaching activities. The applicant was hired on a number of short term part time contracts, starting in February 2002, as the CAF co-ordinator to maintain the instruments and oversee student work. The University posted a permanent position for a Senior Research Scientist in the CAF in August 2002. The applicant applied, and was interviewed for the position, but was not the successful candidate. The position was offered to a white male from Australia. This candidate did not ultimately assume the position, and the selection committee did not offer it to another candidate.
7The applicant alleged racial discrimination in relation to this 2002 posting, complaining to various members of the administration, and ultimately filing a complaint with the Human Rights Commission. Although the applicant’s complaints concerning the 2002 competition do not form part of this Application, the events did inform the background to the applicant’s complaint and, to that end, evidence was presented regarding the 2002 posting and the University’s decisions in relation to the CAF that flowed from the outcome of that posting.
8Following the failed competition for the position of Senior Research Scientist, the CAF was closed in October 2002, and the University engaged in discussions about what to do with the facility. In late 2003 and early 2004, decisions were made to divide the CAF into two parts, the geoanalytical section (the “solid phase”) and analytical environmental section (the “liquid phase”). The new structure included a faculty member advisor and research scientist in each of the phases. The applicant was offered a three year contract as the Research Scientist in the liquid phase.
THE APPLICANT’S ALLEGATIONS
9The applicant alleges that her race, colour, place of origin, ethnic origin, and sex were factors in the respondent’s decision to close the CAF liquid phase in June 2007 and eliminate her position as research scientist. In support of this allegation, the applicant reviewed the history of her employment at the CAF liquid phase, including the 2004 hiring process, Dr. Sawyer’s treatment of her during his tenure as dean, starting in July 2006, the circumstances surrounding the decision to close CAF liquid phase, and the university’s response to her allegations of discrimination in the workplace.
The 2004 hiring process
10The applicant began working as the Research Scientist in the CAF liquid phase in March 2004. The applicant believed that she was offered this position as a way of settling her dispute with the University dating back to the 2002 competition. The applicant stated that she was simply asked to start the job on March 1, 2004. There was no job posting and or job duties outlined. She understood it would be a permanent position. However, when she received a letter of employment from the Dean a few days after starting the job, it set out the terms of a three year appointment as Research Scientist with the CAF liquid phase. The letter included the dates the contract started and ended, and the salary. The contract was subject to a one year probationary period.
11The applicant testified that she did not understand why there was a starting and ending date in the offer. When she asked the Dean about this he said “after three years we’ll see your work at CAF.” She thought it was like a tenure review or probationary period before being offered a permanent job. The applicant also questioned the salary level and it was amended along with other minor handwritten changes to the dates set out in the letter of employment. The applicant stated that she signed the amended letter during this meeting with the Dean.
12A revised copy of the letter, including the noted changes, was forwarded to the applicant. Before re-signing this letter, the applicant questioned the title of Research Scientist and sent an email to the Dean. She understood that she would be given the position of Senior Research Scientist, similar to the one she applied for in 2002. In response to her email, the Dean confirmed the new structure for CAF and the title of Research Scientist. The applicant signed the revised letter on March 11, 2004. Although there were no job responsibilities outlined in the contract, the applicant had the impression that they were the same as those posted in the 2002 position, which was the only job she had ever applied for at the University.
13The applicant’s work was evaluated after one year. In a letter dated April 25, 2005, from Mr. Rayakovich, Director of Human Resources, she was advised that she had successfully completed her probationary period. She also received an increase in salary. The performance review included a note from the Dean stating that the applicant had “worked hard to re-establish CAF and made significant contribution to its development and operation. Her performance in all aspects of her work has been above satisfactory.”
14Mr. Rayokovich confirmed in his testimony that not posting the Research Scientist position for CAF liquid phase was a deviation from the normal practice for filling positions within the Laurentian University Administrative and Professional Staff Association (“LUAPSA”).
15The equivalent Research Scientist position in the CAF solid phase was posted in May 2004 for a five year term. The posting included a description of the job responsibilities.
16Dr. Sawyer became the Dean of the Faculty of Sciences and Engineering on July 1, 2006. The applicant’s first meeting with Dr. Sawyer was on October 23, 2006. She and Dr. Belzile, the scientific advisor of CAF liquid phase (and the applicant’s husband), arranged to meet with Dr. Sawyer to inform him about the workings of the CAF liquid phase and to get his support for the development of the section. There were problems with the instruments which were outdated and needed to be replaced.
17The applicant testified that, in response to the concerns set out by her and Dr. Belzile, Dr. Sawyer stated that the financial situation was not good for CAF liquid phase; that there was a deficit to be dealt with and the liquid phase was expected to generate income through charge backs and user fees. The applicant explained that they could not charge users if the instruments were not up to date. The applicant stated that she knew nothing about a deficit budget before this meeting with Dr. Sawyer. There had been discussions about charge backs and user fees before Dr. Sawyer became Dean, but finances seemed to be his main concern.
18The applicant stated that Dr. Sawyer had little understanding of how CAF worked because his background was not in chemistry. He accused her of spending too much time conducting research, only working for the chemistry department, and not generating enough money. She felt chastised and insulted by these comments and that he put her under unfair scrutiny with no understanding of her role.
19Dr. Belzile, who also testified at the hearing, agreed that this first meeting with Dr. Sawyer did not go well. He too felt that Dr. Sawyer accused the applicant of doing too much work for the chemistry department and too much research. He also was surprised by Dr. Sawyer’s focus on a deficit in CAF and the need to generate income. Dr. Belzile testified that there had never been any expectation that CAF would be self sustaining financially. The facility was intended to provide a research service to the faculty and students. Dr. Belzile emphasized the need to update the equipment before developing a charge back system to generate funds for the facility
20Dr. Sawyer testified that he saw this first meeting with the applicant and Dr. Belzile as a “get acquainted” opportunity. He agreed that he was unfamiliar with the CAF as his background was in math. He took the opportunity of this meeting to learn more about it and the financial challenges. He was surprised to learn that the CAF liquid phase included a teaching component as he understood that it was more of a research facility. He also was surprised to learn about the applicant’s research activities. He said that this was not an accusation against the applicant, but part of a frank exchange about the nature of the work in CAF liquid phase, the challenges with the equipment, and the how to address the financial situation.
21Dr. Sawyer stated that he advised the applicant and Dr. Belzile at this meeting that he would need to consult with the vice president of research and others about these matters to determine whether it was reasonable to request funds to upgrade the instruments. He testified that he had a number of meetings with senior management about the CAF liquid phase.
22Dr. Sawyer stated he also discussed financial matters with the academic advisor for CAF solid phase. However, that section was in a different situation because the equipment was in better condition, and it was financially self sufficient due to a partnership arrangement with the Ministry of Northern Development and Mines.
23The applicant testified that the next contact with Dr. Sawyer was on January 10, 2007, when he came to her laboratory/office and told her that she would have to vacate the space because there were plans to reallocate the CAF liquid phase. She testified that this made her feel quite panicky. She knew there was some discussion about relocating, but she had not heard anything about moving prior to this meeting. The next day she received a copy of the space relocation plan which allocated the CAF space to the Department of Biology.
24The applicant testified that she requested a further meeting with Dr. Sawyer to get a better understanding of the expected future for CAF liquid phase. At a meeting in March, Dr. Sawyer informed the applicant that her contract, due to expire on March 15, would be extended to June 30, 2007. Again he raised the concern of generating money and developing a charge back system. Dr. Sawyer sent the applicant a letter on March 15, 2007, confirming that her appointment as Research Scientist was extended to June 30, 2007.
25The applicant met with Dr. Sawyer again on March 19 to discuss restructuring and presented a formal proposal for upgrading the instrumentation of the CAF liquid phase. According to the applicant, Dr. Sawyer did not say much in response to the presentation. She asked what would happen after the extension of her contract. She wanted to know if she could add some days to summer vacation in China to participate in a scientific exchange with colleagues. Dr. Sawyer’s response was that she was free to do what she wanted after June 30 because, if the budget was not approved, CAF liquid phase would be closed. According to the applicant, Dr. Sawyer then switched off the lights in his office and left. She felt very upset. This was the first time she realized the CAF could be closed at the end of June.
The decision to close CAF liquid phase
26Dr. Sawyer testified that the decision to close the CAF liquid phase, and not renew the applicant’s contract, was based on a number of factors including financial considerations. Dr. Sawyer stated that, upon assuming the position of Dean, he met with the outgoing Dean and Chief Financial Officer, and discussed the budget expectations for CAF. Every year, the budget contained a line for cost recovery in the amount of $48,539. That amount was expected to be recovered through user fees, but was never realized. Dr. Sawyer testified that he was asked to address this situation. Dr. Sawyer advised that the shortfall in the budget due to the lack of cost recovery was taken out of the Dean’s discretionary budget.
27Dr. Sawyer stated that after considerable discussion with the University administrators and faculty members in the Department of Chemistry and Biochemistry about the CAF liquid phase, the status of the equipment, and the capacity to charge a user fee, he came to conclusion that it was not feasible to upgrade the equipment to the point where it was reasonable to charge a user fee. There was also a space problem involving the Department of Biology, which took quite a few months to resolve. At the same time, the Department of Chemistry and Biochemistry was undergoing a program review by the Canadian Chemical Society that identified a need to replace outdated equipment in the department’s teaching program in order to maintain its accreditation.
28In light of all this, Dr. Sawyer presented a formal recommendation to the University’s executive committee to close CAF liquid phase, outlining a number of reasons: the equipment was antiquated and often breaking down; unlike CAF solid phase, there was not a well established charge back system or external contracts to garner funding; the needs of the Department of Chemistry and Biochemistry were under review and would require an influx of money; the teaching functions of CAF liquid phase could be taken care of by new equipment in the department; some if not all of the research support of the CAF liquid phase are duplicated at another facility at the university; and there was a space crunch and lack of appropriate laboratory space. In May 2007, the executive committee discussed and accepted the dean’s recommendation to close CAF liquid phase.
29On May 16, 2007, the applicant attended her annual performance review with Dr. Sawyer and was advised that the decision had been made to close the CAF liquid phase as of June 30, 2007. The same day, Dr. Sawyer sent an email to a number of faculty members advising that CAF liquid would cease operations and outlined the reasons including, the obsolete equipment, a space crunch, the prohibitive cost in making CAF fully functioning, and the availability of another facility to cover most of the research services offered by CAF.
30Dr. Belzile took issue with Dr. Sawyer’s reasons for the decision to close CAF liquid phase. In his testimony he reviewed the faculty budgets starting in 2000-01 and noted that the amount identified as a deficit in the CAF budget line stayed the same for every year. He did not understand why this became an issue after CAF was restructured. He stated that he was not aware of this deficit concern until Dr. Sawyer became dean and focused on the need to implement a user fee system. Dr. Belzile understood that monies were available from the dean’s discretionary fund to cover any shortfalls. Dr. Belzile agreed, however, that there was a need for a significant investment of money to update the equipment in CAF liquid phase before a successful user fee system could be instituted.
31In addition to Dr. Belzile, a number of faculty members who were critical of the decision to close down the CAF liquid phase testified at the hearing. Dr. Parker, a professor in the Department of Biology, testified that he was very disappointed when the CAF liquid phase closed down. He stated that the decision demonstrated that important changes could be carried out without consultation with the university members who use the equipment. Dr. Parker also testified that the imposition of fees for chemical analysis put scientific research out of reach without the support of large amounts of grant funding. He stated that he had to abandon some of his research pursuits in part because the equipment was not available after the CAF liquid phase was closed.
32Dr. Joy Gray-Munro, another professor in the Department of Chemistry and Biochemistry, was also concerned about the lack of consultation with faculty members about the decision to close the CAF liquid phase and questioned the validity of the reasons offered for the decision.
33Both Dr. Parker and Dr. Gray-Munro testified that the applicant was of great assistance in their own research endeavours and in training and supervising their students. Dr. Parker testified that he relied on the applicant to suggest methods and protocols for his research and found his consultations with her to be very valuable in his research. Dr. Gray-Munro testified that the applicant was heavily involved in developing protocols for her students and coming up with experiments and supervising the students. She stated that the applicant did the majority of preparatory laboratory work for the course and was excellent at what she did. Dr. Gray-Munro felt that it was very important for the department that the students have quality hands-on time with the instruments and method development.
34According to the evidence from Dr. Sawyer, new replacement instruments were purchased for the Department of Chemistry and Biochemistry a few months after the liquid phase was closed. Mr. Luc Beaudet, a technologist in the Department of Chemistry and Biochemistry, who was hired in October 2006, and trained by the applicant on the use of the CAF liquid phase instruments and equipment protocols, assumed many of the applicant’s duties after the CAF liquid phased closed. He assisted students and faculty with research, but was not expected to do research himself. He testified about his job duties and experiences in working with the applicant. He stated that he was disappointed when CAF liquid phase was closed because he learned a lot from the applicant.
Investigation of the applicant’s allegations of discrimination
35The applicant met with the University’s Community Rights Officer (“CRO”) on April 27 to discuss her concerns about her position, and subsequently filed a formal complaint on May 1, 2007, alleging discrimination in employment and mistreatment by a number of individuals in the University’s administration. In that complaint, she reviewed the history of her relationship with Dr. Sawyer, her attempts to bring the concerns about the CAF liquid phase instruments to the administration’s attention, the failure to respond to those concerns, and the lack of consultation with her and Dr. Belzile in the discussions about the future of CAF liquid phase. She alleged that there was a conspiracy to eliminate her position under the guise of restructuring. The applicant complained that the decision to close CAF liquid phase and not renew her contract as Research Scientist was a form of reprisal against her for complaining about the prior 2002 competition and continually raising concerns about the future of the CAF liquid phase. She complained that she was being treated differently because of her race, sex, place of origin and ethnic origin.
36The CRO met with the applicant after receiving her written complaint. According to her record of that meeting, the CRO advised the applicant that she believed the complaint was about the hiring process and restructuring of CAF without consultation, The CRO stated that from her perspective this was not a case of discrimination and her office could not get involved. She did not pursue the complaint because the office did not have the jurisdiction to deal with administrative issues.
37Prior to filing this complaint with the CRO, the applicant had set out her concerns of her treatment and the decisions made in relation to the CAF liquid phase to a number of members of the University administration. On December 5, 2006, the applicant, Dr. Belzile and Dr. Joy Gray-Munro sent a letter to Dr. Sawyer outlining the problems with the deteriorating infrastructure in the CAF liquid phase. Attached to the letter was a student petition supporting the request for upgrading the instrumentation. The applicant testified that there was no response to this letter.
38The applicant wrote a letter to the University president on January 30, 2007, outlining her concerns about moving CAF liquid phase, the difficulties related to establishing a charge back system and the urgent need to upgrade the analytical instrumentation. She testified that she did not receive a response from the president to the concerns raised in this letter. The president responded in an email advising that these issues would have to be worked out with the dean and vice president.
39The applicant tried to meet with the vice president academic and vice president research about her concerns. She also sent another long letter outlining her concerns to the University president on April 2, 2007. She did not receive a response.
FINDINGS
5.(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right or another person under this Act, without reprisal or threat of reprisal for doing so
No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
41In determining the issue of discrimination, the applicant must satisfy the Tribunal that she both experienced adverse treatment in relation to others, and that it was based on a ground enumerated in the Code. The evidence must establish that an inference of discrimination is more probable than the actual explanation offered by the respondents. The applicant does not have to show that discrimination was the only reason for the alleged events. A finding that discrimination was a least partially responsible for the events may be sufficient to trigger a finding that the applicant’s Code-protected rights were infringed.
42In this case, there was no dispute between the parties that decisions related to the funding and management of the CAF were controversial. It was apparent throughout the proceeding that there were different and strongly held views about the future of the CAF liquid phase in particular. The parties agreed that the instruments in that section were old and difficult to keep operational. They needed to be replaced. That required a funding decision. After three years of operating the CAF liquid phase, with the applicant working as the Research Scientist, the University’s administration accepted Dr. Sawyer’s recommendation to close the facility. As the only employee in the CAF liquid phase, that decision meant that the applicant’s position as Research Scientist also came to an end.
43The applicant claims that discrimination was a factor in the decision to close the CAF liquid phase. She asked that I draw an inference of discrimination from what she described as a history of adverse treatment by the respondent, starting with the 2002 competition for the CAF Senior Research Scientist position. The applicant alleges that the respondent discriminated against her by appointing her to a less desirable position than the position offered her CAF solid phase counterpart in 2004, and utilizing a different hiring process for the equivalent position. Her position was not posted nor assigned a formal job description contrary to the University’s standard practices. It was for a three year term, whereas the solid phase Research Scientist position was for a five year term.
44The applicant submitted that, after Dr. Sawyer became dean in July 2006, she was subjected to unfair criticism about her work in the CAF liquid phase and the allocation of her time between research and teaching. She was also criticized for the failure of the CAF liquid phase to generate income. She was upset by Dr. Sawyer’s comments about the possible need to vacate her office and deeply distressed about the lack of consultation on the future for the CAF liquid phase and the lack of financial support to do the necessary upgrades to the instruments in order to keep the facility operating.
45The applicant argued that the respondent has put forward differing and inconsistent explanations for closing the CAF liquid phase and failed to back up its explanation with appropriate financial documents or witnesses. Further, the applicant claimed that the reasons presented in support of the decision to close CAF liquid phase could not be considered credible in light of the fact that the instruments necessary to keep the CAF liquid phase in operation were purchased for the Department of Chemistry and Biochemistry after CAF liquid phase was closed down and that Mr. Beaudet continued to fulfill many of the applicant’s functions.
46Finally, the applicant argued that, when she complained about all these issues, the university failed to take reasonable steps to investigate and address her allegations of discrimination in the workplace and that the decision to close the CAF liquid phase was a form of reprisal for her complaints over the years and to the CRO.
47After reviewing the evidence, I find that it does not support the allegation of discrimination. In reviewing the testimony related to the hiring of the applicant as the Research Scientist in the CAF liquid phase, both the applicant and Dr. Belzile stated that she was offered the position as a way of settling her dispute with the University dating back to the 2002 competition. The applicant questioned the three year term, and made some minor revisions to the offer of employment, but she then signed the contract. While I accept that the two Research Scientist positions were filled differently, I am not satisfied that being offered the position, without having to compete for it, supports a claim that the applicant experienced adverse treatment in relation to others. The two sections of CAF were operating in different circumstances and, while offering the applicant the position without a competition may have been in violation of the University’s hiring procedures, I cannot infer that it was evidence of discriminatory treatment based on grounds prohibited by the Code.
48Furthermore, I find the applicant’s evidence on the contract offer to be contradictory. On the one hand she understood that she was given the job of Research Scientist for CAF liquid phase as a means of settling her dispute with the University related to the earlier 2002 competition, and on the other hand she claims that the decision to close the CAF liquid phase, and end her contract, was, in part, a form of reprisal for complaining about the same earlier competition and about the management of the CAF liquid phase.
49In reviewing the evidence of Dr. Sawyer’s interaction with the applicant, I also do not find that it amounted to adverse treatment. While she experienced his inquiries as criticisms, I do not find that the evidence supports a conclusion that he was subjecting her work to excessive scrutiny and monitoring, or that he disproportionately blamed her for not being able to generate revenue for the liquid phase.
50Finally, I find that the respondent presented credible explanations for the decision to close the CAF liquid phase. As already noted, there was no dispute that the instruments in the CAF liquid phase needed a significant investment of money to remain operational. The respondent had to make a funding decision. This was clearly a matter of some controversy at the University, but I accept that, for the reasons set out by Dr. Sawyer including the accreditation review, the University decided to discontinue the funding of the CAF liquid phase and spend the money on the necessary instruments to support the teaching program in the Department of Chemistry and Biochemistry. The question of whether that was the correct decision from an academic and research perspective is not one this Tribunal can assess.
48The impact of the decision to close the CAF liquid phase on the applicant was significant as it meant her contract was not renewed. However, for the reasons outlined, I cannot infer from the evidence presented that discrimination is a more probable explanation than the actual one offered by the respondents. Having provided the applicant with a full time position as research scientist, and funding the CAF liquid phase for three years while trying to determine the best course of action for a facility that needed a significant infusion of funds to remain operative, I find that the preponderance of evidence supports a finding that the decision was based on legitimate financial and program concerns and not a pretext for discriminating against the applicant.
49Having reached this conclusion, I find that the University did not fail to respond to the applicant’s allegations of discrimination
ORDER
[50] The Application is dismissed.
Dated at Toronto, this 29th day of March, 2011.
“Signed by”
Janice Sandomirsky
Member