Rampersad v. York University, 2011 HRTO 832

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joel Rampersad

Applicant

-and-

York University and Shirley Katz

Respondents

-and-

York University Faculty Association

Intervenor

DECISION

Adjudicator: Brian Eyolfson

Date: April 29, 2011

Citation: 2011 HRTO 832

Indexed as: Rampersad v. York University

WRITTEN SUBMISSIONS

Joel Rampersad, Applicant ) Self-represented

York University and Shirley Katz, Respondents ) Lisa Constantine and ) Kate McNeill, Counsel

INTRODUCTION

1This Application was filed on July 2, 2009, pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and alleges discrimination on the basis of race, colour and ethnic origin in the area of goods, services and facilities, and reprisal or threat of reprisal.

2A hearing in this matter was scheduled for July 28, 29 and 30, 2010. On July 20, 2010, the applicant filed a Request to Withdraw, pursuant to Rule 10 of the Tribunal’s Rules of Procedure. On July 22, 2010, the respondents filed a Response to a Request for an Order, objecting to the applicant’s Request to Withdraw, and requesting, instead, that the Tribunal dismiss the Application on the basis of abuse of process and a failure to make out a prima facie case, and direct the applicant to execute a full and final release in their favour.

BACKGROUND

3On April 22, 2010, the respondents filed a Request for an Order requiring the applicant to comply with his obligations under Rule 16.1 of the Tribunal’s Rules of Procedure and provide the respondents with his disclosure. The applicant responded by email dated April 22, 2010, stating, in part, as follows:

I have already sent my submissions to the HRTO as well as to York’s legal representatives. At this juncture, submission wise, there is nothing else I have to say. As far as I know, all parties concerned are in possession and are cognizant of my claims.

4In another email, dated April 23, 2010, the applicant stated, in part, as follows:

All the documents that I have sent shall be the only documents I will be relying on at the hearing, and, both parties – as far as I know – are in possession of both sets. Other than that, nothing new will be presented at the hearing.

5On June 22, 2010, the respondents filed a second Request for an Order requiring the applicant to comply with his obligations under Rules 16.2 and 17.1 of the Tribunal’s Rules and provide the respondents with the documents he intended to rely on at the hearing, as well as his witness list and witness statements.

6In an Interim Decision dated June 28, 2010, 2010 HRTO 1423, the Tribunal directed that, if the applicant had any additional arguably relevant documents in his possession, he was to deliver them to the respondents and the intervenor immediately. In addition, the Tribunal indicated that if the applicant planned to introduce documents or witnesses into evidence at the hearing, he was to comply with Rules 16 and 17 of the Tribunal’s Rules immediately and forward those materials to the respondents, the intervenor, and the Tribunal.

7On July 5, 2010, the respondents filed a third Request for an Order requiring the applicant to comply with his obligations under Rule 16.2 of the Tribunal’s Rules, and the Tribunal’s Interim Decision dated June 28, 2010, and, in particular, provide the respondents and the intervenor with an unedited copy of an audiotape recording alleged to be in his possession.

8In their Request for an Order, the respondents submitted that, on June 30, 2010, the applicant advised the respondents, in a telephone conversation, that he was in possession of an audiotape recording that constituted evidence of the allegations of reprisal set out in his Application. He subsequently advised the respondents that he would provide the tape to the Tribunal and that he would retrieve the tape either the day before or the day of the hearing. In email correspondence, dated July 13, 2010, to the Tribunal, the respondents and the intervenor, the applicant also advised that he was in Calgary and did not plan on returning to Toronto, where the tape was located, until the day before the hearing. He again stated that the tape would be retrieved either the day before or the day of the hearing.

9By correspondence dated July 14, 2010, the respondents requested that the Tribunal schedule a pre-hearing conference call on an expedited basis in order for the respondents to seek the Tribunal’s assistance with respect to, among other things, the applicant’s ongoing failure to comply with the Tribunal’s June 28 Interim Decision and the respondents’ outstanding Request for an Order dated July 5, 2010.

10In email correspondence dated July 14, 2010, the applicant indicated that he was not planning on using the audiotape.

11The Tribunal held a telephone conference call with the parties and the intervenor on July 16, 2010. As confirmed in a Case Assessment Direction, dated July 16, 2010, the applicant indicated that he was no longer pursuing the allegation of reprisal or threat of reprisal. However, after hearing submissions from the parties and the intervenor, the Tribunal determined that the audiotape was arguably relevant to issues in dispute before the Tribunal and ordered the applicant to produce a copy of the audiotape to the respondents and the intervenor by no later than 5:00 p.m. on July 21, 2010.

12On July 20, 2010, the applicant filed a Request to Withdraw.

THE RESPONDENTS’ REQUEST THAT THE APPLICATION BE DISMISSED

13As indicated above, the respondents objected to the applicant’s Request to Withdraw and, instead, requested that the Application be dismissed on the basis of abuse of process and a failure to make out a prima facie case. The Tribunal ultimately determined that it would deal with the respondents’ Request in writing and provided the parties with an opportunity to make written submissions.

Prima facie case

14The respondents submit that the applicant has made allegations which have no demonstrable nexus to a violation of the Code and for which he has provided no evidentiary or factual foundation. They submit that he failed to disclose or produce any documentary evidence in support of his allegations and, had this matter proceeded to a hearing on the merits, there is no reasonable prospect that the applicant would have been able to establish a factual evidentiary foundation sufficient to support a finding of a prima facie case of discrimination.

15In support of their position, the respondents rely on the Tribunal’s Decision in Belso v. Regional Municipality of York Police Services Board, 2010 HRTO 1229. In Belso, the Tribunal heard submissions from the parties regarding the respondent’s request for summary dismissal on the basis that the applicant failed to make out a prima facie case, after the applicant had presented his case at a hearing. The Tribunal dismissed the Application, concluding that the applicant failed to make allegations and give evidence that could enable the Tribunal to make a finding of discrimination, regardless of the evidence that may or may not be introduced by the respondents.

16In the present case, the respondents seek dismissal of the Application on the basis that the applicant has failed to establish a prima facie case, prior to the Tribunal hearing any evidence.

17In Jagait v. IN TECH Risk Management, 2009 HRTO 779, at paragraphs 18 – 19, the Tribunal described the test to be considered in the context of a request to dismiss for failure to establish a prima facie case of discrimination as follows:

The onus is on the applicant to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant's favour in the absence of an answer from the respondent: see Ontario Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (S.C.C.), at para. 28. Upon establishing a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that its actions were not discriminatory.

It is well-established that the threshold for establishing a prima facie case of discrimination is not high, discrimination is often not overt, the employer may have knowledge of facts or possess evidence of discrimination that is not accessible to an employee whose employment is terminated, and that in many, if not most, cases the burden will shift to the respondent to provide a non-discriminatory reason for its actions. On the other hand, where the applicant has failed to establish a prima facie case, it is neither legally correct nor, in my view, fair, just and expeditious to shift the burden to the respondent to provide a non-discriminatory reason for its actions (…). [emphasis added]

18In Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025, the Tribunal held that it may consider the question of whether or not an applicant has established a prima facie case, at a preliminary stage, before the applicant has presented evidence. In such circumstances, the threshold test will be the same, but there will be no evidence before the Tribunal. It will be sufficient if the applicant raises allegations that, if accepted to be true, would be enough to establish a violation of the Code. In Arias, the Tribunal held that particular allegations which could establish a violation of the applicant’s rights under the Code, if accepted as true, could proceed to a hearing.

19In the present case, the applicant, who self-identifies as “West Indian–Trinidadian Descent”, alleges that he was subjected to discrimination on the basis of race, colour, and ethnic origin in educational services. He alleges that he was treated negatively by the individual respondent, a Professor, on a number of occasions. He alleges that, after he transferred from the individual respondent’s tutorial, he was told by another student in the tutorial that, when he left, the individual respondent began to target other “minorities” and all the minorities dropped her tutorial.

20At this stage of the proceeding, I am satisfied that the applicant’s allegations, if accepted to be true, are sufficient to justify a finding in the applicant’s favour, in the absence of an answer from the respondents. As such, having heard no evidence, I am not prepared to dismiss the Application on the basis that the applicant has not made out a prima facie case.

21The respondents submit that, had this matter proceeded to a hearing, there is no reasonable prospect that the applicant would have been able to establish a factual evidentiary foundation sufficient to support a finding of a prima facie case of discrimination. The respondents also submit that the applicant admitted during the conference call on July 16, 2010, that, absent an order from the Tribunal requiring York University to interview other students to effectively find witnesses for him, he would not be successful in his Application, and that this definitively demonstrates a failure on the applicant’s part to make out a prima facie case.

22The respondents also refer to the applicant’s July 30, 2010, email correspondence to the Tribunal, the respondents, and the intervenor, where he states as follows:

(…) I chose to withdraw my case especially when the vice-chair advised me that no witnesses would be contacted, therefore, and as a result, I have no leg to stand on… Had I known much, much earlier, like when I originally filed my case, that the HRTO wouldn’t contact anybody from the class, this claim wouldn’t even exist. Why the HRTO refuses to speak with others is beyond me.

23While the applicant may not have understood that it was his responsibility to bring forward any witnesses in support of his position, this, in my view, is not an appropriate consideration in the context of determining whether the applicant has established a prima facie case, prior to the commencement of hearing, where the allegations in the Application are accepted as capable of proof. I note that, in the present case, the Tribunal has not conducted a summary hearing, within the meaning of Rule 19A of the Tribunal’s Rules, to determine whether the Application has a reasonable prospect of success at a hearing. In my view, in the present context of a Request to dismiss an Application for failure to establish a prima facie case, prior to the commencement of a hearing, it would be premature and speculative to attempt to ascertain the applicant’s prospects of actually establishing a prima facie case of discrimination at a hearing, based on the information currently before me.

24For the reasons set out above, the respondents’ Request that the Application be dismissed on the basis that the applicant has failed to establish a prima facie case of discrimination is denied.

Abuse of process

25The respondents submit that the applicant’s conduct during the course of this proceeding constitutes a clear abuse of the Tribunal’s processes and, accordingly, warrants the dismissal of the Application. In particular, the respondents submit that the applicant’s continued refusal to comply with the Tribunal’s Rules relating to disclosure and production, as well as the Tribunal’s June 28 Interim Decision, constitutes an abuse of process and a blatant disregard of his obligations as an applicant before the Tribunal as noted in Ouwroulis v. New Locomotion, 2009 HRTO 335.

26The respondents also submit that the applicant’s ongoing disregard for and abuse of the Tribunal’s processes were made increasingly evident during the conference call on July 16, 2010, where they submit the applicant continued to refuse to produce the alleged audiotape, even going so far as to state that he would destroy, or had destroyed, the tape.

27In Ouwroulis, the Tribunal stated as follows:

The opportunity for an individual to make a claim of discrimination to a publicly funded adjudicative body, which has extensive procedural and remedial powers, comes with the obligation to respect the seriousness and significance of the process, and comply with the Tribunal’s Rules. The Tribunal’s procedures are less formal than a court’s and aim to enhance access, including for those parties who may be self-represented. But this informality should not be interpreted to mean that parties may take a casual attitude towards complying with Tribunal directions. There may be circumstances which justify a party’s failure to comply with a Tribunal rule or direction. However, an applicant who does not respond to Tribunal directions risks having the application dismissed.

28In the present case, with respect to the disclosure of documents, the applicant confirmed in April 2010 that he had already provided the respondents and the Tribunal with all of the documents that he would be relying on at the hearing. In its June 28, 2010 Interim Decision, the Tribunal noted that the applicant had already included documents with his materials. The Tribunal directed the applicant to deliver to the respondents and the intervenor any additional arguably relevant documents, if he had any. The applicant confirmed during the conference call on July 16, 2010 that he had provided all arguably relevant documents.

29While the applicant did not strictly comply with the requirements in the Tribunal’s Rules concerning the disclosure of documents, he did confirm that he had provided all arguably relevant documents in his possession and that those were the documents that he intended to rely on at the hearing.

30With respect to a witness list and witness statements, it appears that the applicant, who is self-represented, did not understand that it was his responsibility to bring forward any witnesses in support of his position. As such, the applicant did not provide a witness list or witness statements.

31While the audiotape should have been disclosed, in light of Rule 16.1 of the Tribunal’s Rules, it appears from the applicant’s communications with the respondents and the Tribunal regarding the audiotape that he did not understand his disclosure obligations with respect to the audiotape. I also find, in particular, that the applicant’s comments during the conference call on July 16, 2010, to the effect, suggesting that he would destroy, or had destroyed, the audiotape were inappropriate. However, the applicant was ultimately ordered to produce the tape and given a deadline to do so. He filed a Request to Withdraw prior to that deadline.

32In his email correspondence dated July 30, 2010, the applicant submits that he hasn’t abused this process. He acknowledges that he was ordered to produce the tape and explains that, a day before the deadline, he chose to withdraw his case. He explains that his primary reason for filing his Request to Withdraw was learning that the Tribunal would not be contacting witnesses on his behalf.

33The respondents submit that filing a Request to Withdraw does not constitute a withdrawal and the applicant’s failure to produce the audiotape by the deadline is a serious abuse of process. However, it also appears that the applicant did not understand that, pursuant to Rule 10 of the Tribunal’s Rules, where a response to an application has been filed, an application may be withdrawn only with the permission of the Tribunal and upon such terms as the Tribunal may determine. In email correspondence to the Tribunal dated July 30, 2010, the applicant asks “Why is this case still on-going if I cancelled it?”

34Lastly, the respondents submit that the applicant’s unavailability to attend a conference call on a date that would otherwise have been set aside for the hearing is another example of the applicant’s ongoing abuse of the Tribunal’s process. However, the Tribunal attempted to schedule the conference call one week after the applicant filed his Request to Withdraw, which, it appears, he thought ended the matter.

35In addition to Ouwroulis, the respondents rely on the Tribunal’s Decisions in Okunbor v. Hopewell Logistics, 2009 HRTO 2124, and Rocca v. Peel District School Board, 2009 HRTO 2117, in support of their position that the Application should be dismissed for abuse of process. In Okunbor, the Tribunal dismissed the Application as abandoned and as an abuse of process after finding that the applicant failed to comply with his responsibilities to disclose and produce material in a timely manner, failed to comply with the Tribunal’s directions to comply with its Rules, failed to comply with his obligation to maintain contact with the Tribunal, and failed to attend the hearing. In Rocca, the Tribunal dismissed the Application after the applicant’s litigation guardians failed for more than six months to comply with an order of the Tribunal to produce a key document with no portions blacked out.

36In the present case, the applicant did not strictly comply with the disclosure requirements pursuant to the Tribunal’s Rules. However, the applicant was self-represented, and it appears that he did not fully understand both his disclosure obligations under the Tribunal’s Rules and that it was his responsibility to bring forward witnesses in support of his position. While parties must respect the process and comply with the Tribunal’s Rules, I am not satisfied that the applicant’s conduct with respect to his disclosure obligations, and, in particular, his failure to disclose the audiotape after filing a Request to Withdraw, warrants dismissal of the Application as an abuse of process. In my view, the applicant has not failed to comply with directions of the Tribunal near to the extent described in the above cases relied on by the respondents in support of their position.

37For the above reasons, the respondents’ Request that the Application be dismissed as an abuse of process is denied.

CONCLUSION

38The respondents’ Requests that the Applications be dismissed are denied. The applicant’s Request to Withdraw is granted with leave of the Tribunal. In the circumstances, I need not address the respondents’ further remedial request that the Tribunal direct the applicant to execute a full and final release in their favour, although, in my view, this would not be an appropriate direction for the Tribunal to make in any event.