Alsaigh v. University of Ottawa, 2011 HRTO 699

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Manal AlSaigh

Applicant

-and-

University of Ottawa, Paul Bragg, Fraser Rubens, Thierry Mesana

and Roy Masters

Respondents

INTERIM decision

Adjudicator: Maureen Doyle

Date: April 12, 2011

Citation: 2011 HRTO 699

Indexed as: Alsaigh v. University of Ottawa

WRITTEN SUBMISSIONS

Manal Abdulhameed AlSaigh, Applicant ) Anne Levesque, Counsel

University of Ottawa, Dr. Fraser Rubens, )

Dr. Paul Bragg, Dr. Roy Masters and ) J. Bruce Carr-Harris, Counsel

Dr. Thierry Mesana, Respondents )

1This Interim Decision addresses the issue of whether the Application should be deferred pending the outcome of an appeal filed by the applicant under the Faculty of Medicine/University of Ottawa Postgraduate Medical Education Appeal Mechanism (the “academic appeal”).

2The Application, filed October 10, 2010, alleges discrimination in employment on the grounds of race, colour, ancestry, place of origin, citizenship, ethnic origin, disability and reprisal or threat of reprisal in the areas of employment and goods, services and facilities.

3The applicant is a citizen of the Kingdom of Saudi Arabia. She is a physician who came to Canada in 2003 to train in the University of Ottawa’s Faculty of Medicine Cardiac Surgery Program (the “Program”). Briefly, in her Application, the applicant alleges that the individual respondents disparaged her medical skills and excluded her from learning opportunities during training and that this was due to negative stereotypes about her race or ethnic origin. Additionally, she indicates that she has taken leaves of absence from the Program for medical reasons and that each time she returned from such a leave, the university required her to do additional remediation prior to being permitted to advance to the next stage in training. She alleges that this was discriminatory. She also alleges that on June 30, 2009, she was advised that she would not be permitted to enter into the fourth year of the Program, but rather would be required to participate in remediation for six months.

4On July 10, 2009, her counsel at the time wrote to the Program committee advising that she was appealing the decision not to permit her to proceed directly to the fourth year of the Program, and invoking the University of Ottawa, Faculty of Medicine Postgraduate Medical Education Appeal Mechanism (the “academic appeal”). The letter confirmed her understanding that according to the academic appeal policy, should she not be satisfied with the decision of the Residency Program Committee, “her appeal lies to Dr. Paul Bragg, Associate Dean, Post Graduate Medical Education (‘PGME’), the Appeal Subcommittee for PGME, the Faculty Council of the Faculty of Medicine and the Senate Committee on Individual Cases.” The applicant also alleges that in December 2009, the University advised her that she was not permitted to continue training pending the results of her academic appeal.

5In their Response, the respondents deny that there has been discrimination and also ask that the Application be deferred until the completion of the academic appeal process at the University. They submit that the issue in the academic appeal is whether the decision to require the applicant to participate in further remediation prior to advancing to the fourth year of the Program was justified or “whether it was based on other improper motives, such as discrimination”. They submit that the facts in contention in the academic appeal are the same facts as are relevant to this Application. They submit that it is anticipated that the completion of the final levels of appeal is imminent.

6The applicant submits that the Application should not be deferred. She submits that the parties to the academic appeal and this Application are not identical, as this Application also names several individual respondents. Further, she submits that the purpose of an academic appeal is “not to determine whether there is systemic discrimination in the Program or whether the applicant experienced discrimination on the basis of her disability.”

7She also argues that human rights damages are not available to her through the academic appeal process. Further, she argues that a deferral would be unfair to her, as she has spent money in legal fees in challenging the respondents’ decisions and because her reputation, dignity and self esteem have been negatively affected. She submits that this matter must proceed expeditiously to avoid further harm to her.

Deferral considerations

8Rule 14.1 of the Tribunal’s Rules of Procedure states that the Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative or at the request of any party. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

9In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paragraphs 18-20:

Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.

10If a person has commenced another proceeding that raises the same human rights issues, it may be appropriate for the Tribunal to defer the Application until the other proceeding is complete. First, it may not be fair to the parties to be required to pursue more than one proceeding dealing with substantially the same issues at the same time. Secondly, there is a potential for inconsistent findings in the two concurrent proceedings. It is generally preferable for one proceeding to be completed before the other commences.

11In this case, there is significant overlap between the circumstances giving rise to the Application and the academic appeal and if the academic appeal and the Application proceed at the same time, the parties will be required concurrently to address substantially the same issues in two different forums. While the individual respondents are not named as parties in the academic appeal, their actions and decisions will no doubt be relevant to the issue to be determined in that process. There is a potential for inconsistent findings.

12The remedies available to a person under the academic appeal process and before the Tribunal are not identical. Insofar, however, as the applicant seeks a ruling from the Tribunal that she be reinstated into the Program, this is a matter which will be addressed in the academic appeal process.

13A reason not to defer an Application is that deferral will likely postpone the hearing of the Application by the Tribunal. In general, it is preferable to adjudicate cases close in time to the events in question and applicants and respondents are entitled to expect the Tribunal to deal with Applications in a timely fashion. The delay in adjudicating the Application may be longer if the other proceeding is in the early stages.

14In this case, where the applicant alleges that she has not been permitted to continue her training pending the results of the academic appeal process, the impact of delay is a factor to consider. In this case, however, the respondents, including the University, have stated that the completion of the appeal process is imminent, and this has not been disputed by the applicant. In these circumstances, therefore, it would not appear that deferral will result in significant further delay.

15In light of these considerations, I am satisfied that it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.

16Accordingly, I find that the Application should be deferred until the academic appeal has been concluded. The Tribunal’s Rule 14 sets out the procedure if a party wishes to proceed with an Application that has been deferred pending the conclusion of another proceeding. In the event that the academic appeal has already been concluded and the applicant wishes to proceed with this Application, the applicant may file her request to proceed within 60 days of the date of this Interim Decision.

17The respondents have argued that the applicant’s Reply is improper and that it is an abuse of process. They seek an order requiring the applicant to file a “fresh Reply” or permission to file a Sur-Reply to respond to arguments and evidence raised by the applicant in her Reply.

18In view of the fact that the respondents’ Request for deferral is granted, it is not necessary at this time to address their concerns regarding the applicant’s Reply.

19I am not seized of this matter.