HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Aristide Raoul Tsemo Applicant
-and-
York University Respondent
INTERIM DECISION
Adjudicator: Maureen Doyle Date: April 7, 2011 Citation: 2011 HRTO 673 Indexed as: Tsemo v. York University
1This Application began as a complaint to the Ontario Human Rights Commission dated April 30, 2007. The complaint was abandoned and was subsequently filed as an Application to the Human Rights Tribunal of Ontario pursuant to s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The applicant alleges discrimination in employment on the basis of race, colour and ethnic origin.
2Briefly, the applicant alleges that the respondent has discriminated against him in certain hiring decisions. He made applications for several positions teaching math at York University ("York") from 2002, but was never the successful candidate. He applied for some positions in the bargaining unit of the local of the Canadian Union of Public Employees ("CUPE") and for some positions in the bargaining unit of the York University Faculty Association at York ("YUFA").
3By way of response, the respondent agrees that the applicant applied for certain positions in the YUFA bargaining unit as well as for "various contract teaching positions each year", referencing the CUPE positions. In addition to making a preliminary objection regarding the applicant's withdrawal of a previous complaint to the Human Rights Commission, the respondent denies that its hiring decisions were in violation of the Code.
4The respondent has provided certain documentation, but the applicant seeks further documentation, stating that documentation he requested has not been provided by the respondent.
5This Interim Decision addresses the Applicant's request for documents. The Applicant is reminded, however, that parties are expected to follow the Tribunal's Rules of Procedure for Transitional Applications under sections 53(3) and 53(5). The Applicant is particularly directed to Rule 3 which states possible consequences for failure to comply with the Rules.
Documentation Relating to CUPE Positions
6The respondent has provided lists of Mathematics and Statistics courses to be taught by CUPE members in the summer of 2003 and the fall and winter of 2003-2004. The lists indicate the names of instructors assigned to teach the courses, with some exceptions, which are noted simply as "TBA". The applicant states that though the list of courses provided by the respondent appears complete insofar as it names the course, it is not sufficient as it does not say who taught each of the courses, and he seeks the identity of instructors ultimately assigned to all courses. It is his position that this information is necessary as it will enable him to show that the university has hired people to teach more than the 5.5 courses permitted by the CUPE collective agreement.
7The respondent supplied a list of summer courses and assigned instructors for the summer of 2003. The applicant also seeks a list of all summer courses and instructors assigned to teach those courses at York after that time.
8The applicant also seeks documentation relating to the applications of Igor Poliakov, Iouldouz Raguimov, Valery Michkine and Alip Mohammed. He argues that according to the CUPE collective agreement, he has the right to all documentation relating to a job competition when he contests the results. He also cites Article 5.03 of the collective agreement regarding Employment Equity.
9The respondent has supplied copies of Notices of Recommended Appointments sent to the applicant. Some are addressed to "Applicant" and some are addressed to the applicant by name. These are notices sent to the applicant as an applicant for CUPE positions at the university, and provide the names of individuals the university intends to appoint to those positions. Notices for appointments for the summer of 2004, the fall and winter of 2004-2005, the fall and winter of 2005-2006, and the fall and winter 2006-2007 sessions have been provided. Those notices include the names of Igor Poliakov, Iouldouz Raguimov, Valery Michkine and Alip Mohammed, as well as an indication of for which courses they are being recommended for appointment.
10The Notices of Appointments are an indication that the applicant applied for the positions named in the document. The applicant has not provided other Notices of Appointments he received, indicating positions to which he believes he should have been appointed, nor has he provided copies of his applications for CUPE positions, and indeed the time period for provision of documents by the applicant has long since passed. He has not named any other courses or individuals who were awarded positions he believes should have been awarded to him. The only documentation before me regarding CUPE positions for which the applicant applied is documentation provided by the respondent. The subject matter of this Application is certain hiring decisions of York, in particular its decision not to hire the applicant and to hire other individuals in his stead. Where the applicant has not made an application for a position, it is not reasonable to conclude that he would have nonetheless been a candidate for the position. The applicant bears the onus of proving discrimination, and I do not find that any basis exists for ordering production of additional course and instructor lists.
11In any event, the applicant states that he seeks a more complete listing of courses and instructors in order to be able to establish that the university assigned more than a permissible teaching load to certain individuals. I find that the additional listings of courses and instructors are not relevant. The question before me is not whether York has breached the provisions of its collective agreement with CUPE in awarding positions to certain individuals. Rather, the question before me is whether its decisions were tainted by discrimination. I am not persuaded that evidence regarding whether individuals were assigned too many courses will assist me in making that determination, and I do not find that that information is relevant.
12Accordingly, for these reasons, the applicant's request for further course and instructor listings is denied.
13The university submits that the right to documents relating to the applications of the named individuals (Poliakov, Michkine, Raguimov, Mohammad) is a right conferred on bargaining unit members by virtue of the collective agreement provisions, and that the applicant is not a bargaining unit member and therefore cannot rely upon those provisions. Additionally, it argues that the request is a "fishing expedition", and it characterizes the four people appointed to the positions sought by the applicant as "innocent bystanders". York argues that those people should not be subject to having their credentials "dissected and diminished" by the applicant. It submits production of that documentation will lengthen these proceedings as it will be obliged to call these people as witnesses. Finally, it argues that without CUPE seniority, the applicant had no reasonable prospect of securing a position.
14I find that the successful applicants' application materials considered by York in making its hiring decisions in competitions where the applicant was an applicant for the position and where the applicant takes the position that he should have been awarded those positions, are materials which are arguably relevant. While I appreciate that York has indicated that the seniority of these individuals is a threshold issue, in arguing that the university's decisions have been tainted by discrimination, it is open to the applicant to argue that these individuals did not have qualifications for the positions they were awarded. The applicant will do well to remember, however, that the question before me is not whether the university's decision was correct or even whether the successful candidates were the best qualified in the pool of applicants. The question before me is simply whether the university's decision was tainted by discrimination. In seeking to answer this question, the qualifications of the successful applicants are arguably relevant.
Original Documentation from Dr. Zabrocki
15The applicant also seeks the original academic diplomas of Dr. Zabrocki.
16The respondent has not made submissions regarding this request, but in any event, I dismiss this request on the basis that this documentation is not relevant. Nowhere in the postings does the university indicate that candidates are to supply original documentation. Nowhere in the materials before me does it appear that he candidates have done so, including the applicant. In these circumstances, I am not persuaded that anybody's original diplomas were considered by the hiring committees, and I do not find that they can be considered relevant. If the applicant wishes to ask the respondent's witnesses questions regarding what documentation was considered by them in making their hiring decisions, he is free to do so. Should the witnesses indicate that they considered the original diplomas of Dr. Zabrocki or of other candidates, the applicant may renew his request for production of that documentation at that time. Of course, in addition to relevancy, consideration of what documentation is in the care and control of the university could be expected to be an issue should this question arise again in these proceedings.
Math Department Hires Since 2002
17Finally, the applicant seeks a list of all people recruited into the math department for YUFA positions since 2002 and their application files. The applicant submits it is relevant as it will show that he has better qualifications than those currently working at York. He submits that if they recruited 10 people less qualified than he, it means he should have had a position there, especially since the visible minority of which he is a member is not represented there.
18The university has provided application packages for those hired into YUFA positions for which the applicant applied. I do not find that the application packages submitted by all those recruited to other YUFA positions in the math department since 2002 are relevant to the question before me. The question before me is not whether there are people currently working at the university with qualifications inferior to the applicant's. There may be or there may not be. In filling these positions, the university's hiring decisions would have been limited by the pool of applicants for each position. Competition for some positions may have been fiercer than competition for other positions, and the pool of applicants could vary in quality from competition to competition. Those considerations, however, are completely irrelevant to the question before me, which is where the university chose another candidate over the applicant in job competitions where the applicant participated, were its decisions tainted by discrimination. The qualifications of everyone hired into YUFA positions in the math department since 2002 will not help me decide that question, and are not relevant. Accordingly, this request for documents is denied.
Direction
19For all these reasons, I make the following direction:
(a) the university is directed to provide to the documentation it considered relating to the applications of Igor Poliakov, Iouldouz Raguimov, Valery Michkine and Alip Mohammed
20The Registrar will contact the parties with a view to setting dates for the continuation of the hearing in this matter.
Dated at Toronto, this 7th day of April, 2011
"signed by"_________________
Maureen Doyle
Vice-chair