Huang v. University of Ontario Institute of Technology, 2011 HRTO 937

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Richard Huang

Applicant

-and-

University of Ontario Institute of Technology, Amanda Northcott, Bill Muirhead, Dave Robertson, Donna Epstein, Emily Laverty, Gary Pitcher, John Easton, Kim Carr, Kimberley Young, Laura Benniger, Richard Bartholomew, Tracey Marshall, Victoria Pearce and William Smith

Respondents

DECISION

Adjudicator: Mary Truemner

Date: May 16, 2011

Citation: 2011 HRTO 937

Indexed as: Huang v. University of Ontario Institute of Technology

APPEARANCES

Richard Huang, Applicant ) Nathan M. Ross, Counsel

University of Ontario Institute of Technology, ) Amanda Northcott, Bill Muirhead, ) Dave Robertson, Donna Epstein, ) Emily Laverty, Gary Pitcher, John Easton, ) Paula M. Rusak, Counsel Kim Carr, Kimberley Young, Laura Benniger, ) Richard Bartholomew, Tracey Marshall, ) Victoria Pearce and William Smith )

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The applicant’s allegations largely pertain to his dealings with the various personal respondents who all worked at the University of Ontario Institute of Technology (the “University”) while he was a student. The applicant alleges that the respondents discriminated against him with respect to services on the basis of age, creed, ethnic origin, race and reprisal contrary to sections 1 and 8 of the Code.

2In a Case Assessment Direction (CAD) dated November 25, 2010, the Tribunal directed that there be a Summary Hearing because it appeared that the Application fails to identify any links between the alleged discriminatory treatment and the grounds cited, and it fails to demonstrate that the respondents had the intention to reprise against the applicant for enforcing his Code rights. The applicant was directed to explain how there is a reasonable prospect that his Application can succeed.

3Prior to the Summary Hearing, the applicant filed hundreds of pages of e-mails and narrative which appear to be intended to form part of his description of what happened that he believes was discrimination contrary to the Code. There is little narrative in the applicant’s submissions to connect the e-mails and letters to a ground in the Code other than creed, which is discussed below, and reprisal, also discussed below.

4The Summary Hearing was held by teleconference on February 23, 2011, and the applicant’s newly retained counsel argued that there was a reasonable prospect that the Application could succeed, particularly with respect to the allegation of reprisal. The respondent’s counsel argued that there was no reasonable prospect. This decision concludes that there is no reasonable prospect that the Application can succeed.

BACKGROUND

5The applicant was an undergraduate student majoring in forensic science at the University. He commenced his studies in May 2008. He alleges that staff and faculty discriminated against him with respect to various incidents, but his pleadings appear to indicate that any allegedly unreasonable reluctance to agree to his requests for changes to his credits, courses or marks, even if unconnected to his race, ethnic origin, age or creed, could be called “discrimination” or “harassment”. In copies of e-mails to the University’s staff and faculty making complaints, he often uses these two words, but he does not link them to a ground in the Code.

6He alleges that some of his marks were unfairly low, and he was dissatisfied with the service that he was receiving in the context of the appeal procedures. When he communicated directly with the President of the University, he was reprimanded for inappropriate behaviour because he was bypassing other staff with whom he had been directed to deal.

7Problems between the applicant and the University came to a head when the applicant delivered appeal documents to the Faculty of Science, during the winter semester of 2010. He claims that the University staff misplaced them, and that staff members were dishonest in denying their receipt. He returned with another set of documents on May 28, 2010, and became upset with staff and their alleged mishandling of his original documents. The University asked him to attend a meeting that was held on June 16, 2010 to deal with complaints about his behaviour. Apparently, his conduct on May 28, 2010 upset the staff, and caused a member to cry. At the June meeting, he was asked to sign a probationary contract letter if he wished to return to the campus. He felt intimidated, but refused to sign, and the respondents served him with a Notice Prohibiting Entry (the “Notice”) to the campus.

DOES THE APPLICANT HAVE NO REASONABLE PROSPECT OF SUCCESS OF PROVING DISCRIMINATION ON THE BASIS OF AGE, CREED, RACE AND/OR ETHNIC ORIGIN?

8The summary hearing process is outlined in Rule 19A of the Tribunal’s Rules of Procedure. In a summary hearing, the issue is whether the Application should be dismissed in whole, or in part, on the basis that there is no reasonable prospect that the Application or a part thereof will succeed.

9As stated in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paragraphs 8 and 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

Allegations of Discrimination because of Age

10The applicant was born in 1978. On Form 1-C of his Application, the applicant provides the following explanation for his belief that he was harassed or discriminated against based on his age: “My timetable schedule was changed which affected my work schedule and travel time to school. I am not eligible for OSAP. All my savings have to be exhausted.” In his oral submission, counsel for the applicant clarified that the applicant’s allegation of discrimination because of age was focused on three incidents or behaviours: 1) Amanda Northcott’s allegedly rude treatment of the applicant; 2) Kimberley Young’s refusal to adjust the applicant’s timetable; and 3) an incident where someone laughed at the applicant when he was in Ms. Young’s office.

11The first allegedly discriminatory behaviour was that Amanda Northcott, who is a teaching assistant and one of the personal respondents, was rude to the applicant because she “nit picked” when reviewing the applicant’s school work, and had little patience for him because she would not provide the extra guidance he needed to understand Information Technology (“IT”).

12When invited to describe what evidence he intended to adduce in support of these allegations, the applicant’s counsel pointed to an e-mail exchange on February 3, 2009 between the applicant and Ms. Northcott in which they reviewed graphs the applicant had submitted for one of his courses. The e-mail from Ms. Northcott allowed the applicant to re-submit his graphs and advised him to follow all the main components as demonstrated in his manual. It appears from the applicant’s e-mail to Ms. Northcott that he believes she should have provided him with more guidance in how to do the graphs. It also appears that the applicant was unhappy that Ms. Northcott was not more flexible with her office hours. There is no reference to age in these e-mail messages and no reasonable basis to conclude that any of the applicant’s reasons in his e-mail about why his work may not have met her standards was related to age.

13Counsel for the applicant also suggested that there may be evidence that mature students are less likely to have IT experience than younger students, but he did not argue constructive discrimination under s.11 of the Code. Nor did he refer to any specific evidence that the applicant planned to adduce at the hearing to demonstrate that any seemingly neutral policy to provide minimal IT assistance would exclude or restrict 33 year old students, such as the applicant, on the basis of their age.

14With respect to the applicant’s dealings with Ms. Northcott generally, counsel for the applicant referred to how Ms. Northcott would go through procedures with other students during office hours, but not make enough time for the applicant. Given the e-mail exchange (referred to above) in which the applicant cites a conflicting tutorial for another course to explain why Ms. Northcott’s office hours are problematic for him, it would appear that the applicant’s dispute about office hours does not involve his age. Counsel for the applicant agreed that the fact that the applicant was the only mature student in his class was the only evidence to support the allegation that Ms. Northcott’s alleged rudeness to the applicant was due to his age.

15It would appear that Ms. Northcott’s alleged rude treatment of the applicant involved her alleged inflexibility with office hours and her alleged rigidity with respect to marking assignments. Without any evidence besides the circumstantial evidence that the applicant was the only mature student in the class and therefore that his age is the reason for Ms. Northcott’s alleged inflexibility towards him, I cannot find that there is any reasonable prospect of success for the allegation against Ms. Northcott of discrimination on the basis of age.

16The second allegedly discriminatory incident or behaviour that counsel for the applicant raised at the Summary Hearing with respect to age discrimination relates to the applicant’s timetable of classes. As noted above, the applicant states the following on Form 1-C of his Application as the reason why he believes that he was discriminated against because of age:

My timetable schedule was changed which affected my work schedule and travel time to school. I am not eligible for OSAP. All my savings have to be exhausted.

17It appears that the applicant is here relying on section 11 of the Code which states:

Constructive discrimination

11. (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right. R.S.O. 1990, c. H.19, s. 11 (1).

Idem

(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any. R.S.O. 1990, c. H.19, s. 11 (2); 1994, c. 27, s. 65 (1); 2002, c. 18, Sched. C, s. 2 (1); 2009, c. 33, Sched. 2, s. 35 (1).

18The applicant’s counsel clarified that Kimberly Young, who is an Academic Advisor for the Faculty of Science at the University and one of the personal respondents, refused to adjust the applicant’s timetable even though the applicant told her that he needed it adjusted because he had a job with a conflicting schedule. Counsel explained that the applicant needed employment income because he was too old to be eligible for funds from the Ontario Students Assistance Plan (“OSAP”). Counsel argued that the respondents failed to accommodate the applicant’s need arising from his age when they refused to adjust his timetable so that he could continue his employment. Counsel could not point to any reason why the applicant was in financial need that was related to his age other than his age made him ineligible for funds from OSAP, which could have been an additional source of income.

19The Application indicates that the applicant had worked full time at a water treatment plant prior to his two years of studies with the University. The Application also indicates that, while a student at the University, the applicant needed to work past midnight on Tuesday nights, and wanted his timetable adjusted so that he could have Wednesday mornings off, presumably because he would be too tired to attend classes.

20Even if it is true that the applicant’s age makes him ineligible for OSAP, I find that there is no reasonable prospect for the applicant to show that OSAP’s alleged age restrictions resulted in the applicant’s need to have the University or Ms. Young ensure his Wednesday mornings were free. OSAP is not a respondent to the Application. Any need to reschedule classes with the University on Wednesday mornings is simply too remote from the applicant’s age. There are too many variables affecting this need. One would be the applicant’s savings. Another would be the commuting time between the applicant’s home and his work and between his home and his Wednesday morning class. Another would be the possibility of the applicant finding a job with his employer or another employer that would not require him to work after midnight on Tuesday evenings. In fact, the applicant’s special need to have his class timetable adjusted arises from his employment schedule, not his age. His particular work schedule is not related to his age. Therefore, there is no reasonable prospect that the applicant will be able to establish that failing to accommodate his need to be off on Wednesday morning was discrimination by the University or Ms. Young on the basis of age.

21At the Summary Hearing, a third incident was raised by counsel for the Applicant in relation to discrimination on the basis of age. This incident also involved Ms. Young. The applicant had asked her if he could receive a “transfer credit” for a course he completed at another university, and she directed him to show her the course outline. An attachment to the Application describes the following scene when he subsequently brought the course outline to her office:

When I brought the course outline to Kimberley Young in her office at UOIT, I was made fun of by Kimberly Young and laughed at by another person (who is UOIT staff based on her conversation and interaction with Kimberly Young) present in her office. Before talking with Kimberly Young about the course outline and transfer credit, I had asked if I could talk her, and if not at that moment, I could come back later. However, she agreed I could enter her office. When I put the course outline on her desk for her to see, she frowned as if she did not recalled we had the conversation. She would not carefully looked at the course outline except picked the stapled sheets of the course outline, frowned and acted as she had no clue why I was having this conversation with her. Her colleague laughed at me as if I was a kid who don't know anything and got refused for what I wanted. I took the course outline back from her desk and left her office. I felt I was discriminated by Kimberly Young because the way how I was treated stated in this paragraph. [Grammar, spelling and emphasis are reproduced as in original text].

22Even if Ms. Young’s alleged behaviour was rude and amounted to “brushing [the applicant] off,” I do not find that there is any reasonable prospect that the applicant will be able to link Ms. Young’s behaviour with the fact that the applicant was a mature student. To the contrary, it appears from the above statement that the applicant was offended that a person visiting Ms. Young’s office, not Ms. Young, did not respect his advanced age relative to other students, and instead treated him like “a kid.”

23At the Summary Hearing, counsel for the applicant raised no other incidents in relation to allegations of discrimination because of age. I therefore dismiss the Application with respect to allegations of discrimination on the basis of age.

Allegations of Discrimination on the basis of Creed

24The allegation of discrimination on the basis of creed involves an incident in June of 2009 between the applicant and Emily Laverty, the Academic Advisor for the Faculty of Science. The applicant alleges that when he advised Ms. Laverty that he would like to see three of his examination scripts in order to assess whether to appeal any of the marks he received, she told him that the deadline to appeal had passed. When he persisted, the applicant alleges that she reluctantly allowed him to review his exams. He felt that there were clerical errors, which made his marks lower than what they should have been. The applicant alleges that Ms. Laverty discouraged him from appealing his marks, and told him that he should take the marks as a “gift” and a “blessing”. The applicant alleges that she was insulting him and his Buddhist religion by using those two words.

25At the Summary Hearing, the applicant’s counsel offered no explanation as to why a reference to marks being a “gift” or a “blessing” was an insult to the Buddhist faith. The words “gift” and “blessing” do not necessarily belong to the lexicon of religions, let alone the Buddhist faith. Even the word “blessing”, which implies a divine favour, may be offered by a parent or authority figure. Without further evidence to show that Ms. Laverty knew that the applicant is Buddhist, and that Ms. Laverty’s alleged use of these words was in reference to the applicant’s creed, I find that there is no reasonable prospect that the applicant will be able to show a link between Ms. Laverty’s remarks and discrimination because of creed.

26Applicant’s counsel offered the possibility that Ms. Laverty was coercing the applicant into her religion when she told the applicant he should take his marks as a “gift” or “blessing”. He admitted that the applicant did not know if Ms. Laverty is religious or what her religion is. Without further evidence that Ms. Laverty used these words to coerce the applicant into following another religion, I see no reasonable prospect that the applicant will be able to show a link between them and his creed or any effort to convert him to a religion.

27The Application is dismissed with respect to allegations of discrimination or harassment on the basis of creed.

Allegations of Discrimination or Harassment on the basis of Race and Ethnic Origin

28The applicant indicates on Form 1-C of the Application that his race and ethnic origin are Chinese. As stated above, the Application is accompanied by many documents, including letters to the respondents from the applicant and e-mails between the parties. The applicant appears to intend that these documents and e-mails form part of his narrative with respect to a description of the alleged discrimination and harassment. With respect to the applicant’s allegations of discrimination on the grounds of race and ethnic origin, he merely refers on Form 1-C to i) a July 27, 2010 e-mail document; ii) a “Respondents List” document; and iii) a “document dated June 18, 2010 regarding signature requirement on Probationary Contract.”

i) July 27, 2010 E-mail

29There is no e-mail sent or received on July 27, 2010 attached to the Application, but there are two e-mails sent prior to July 27, 2010 by the applicant to an investigator retained by the University to investigate his allegations. They have as their subject, “meeting July 27 / 2010”. In one of them, the applicant refers to Ms. Laverty and her use of the words "gift" and "blessing" in the context of his efforts to appeal examination marks as described above, and alleges that the words are examples of discrimination not only on the basis of creed, but also on the basis of race and ethnic origin. Nowhere else in these e-mails is there a reference made to anything which appears to involve his race or ethnic origin.

30I dismiss the allegations of race or ethnic origin discrimination with respect to the use of the words “gift” and “blessing” for the same reasons I provide above to dismiss the Application in so far as it alleges discrimination because of creed.

ii) Respondents List

31The "Respondents List" attached to the Application contains descriptions of incidents between the applicant and each of the respondents listed in the document. For the most part, they contain descriptions of incidents as listed in the June 18, 2010 letter (this letter is described further below). The applicant uses the words "harassment" and "discrimination" frequently throughout the “Respondents List” to describe the respondents’ resistance to provide him with extra time and assistance, to change his marks or to adjust his schedule; however, only once does he explain why he believes the conduct of any of the respondents is because of his race or ethnic origin. This occurs in the applicant's description of incidents involving Emily Laverty when he refers to her use of the words "gift" and "blessing" in the context of his efforts to appeal examination marks as described above, and alleges that the words are examples of discrimination, not only on the basis of creed, but also on the basis of race and ethnic origin. As stated above, I dismiss the allegations of discrimination because of race or ethnic origin with respect to Ms. Laverty’s use of these words.

32The applicant also describes a meeting with Ms. Laverty one month later in July of 2009. She had booked this meeting with him, but after it was scheduled, he sent an e-mail to her to say that he might have to report her to the Dean of the Faculty of Science if one of his final grades were not changed due to what he argued was a clerical error. He describes how she yelled at him when he entered her office, ordered him out of her office, and threw papers across her desk while speaking to him in a degrading tone.

33At the Summary Hearing, counsel for the applicant argued that only racism could explain Ms. Laverty’s alleged rudeness. I do not agree. In the circumstances, where the applicant had persistently complained to Ms. Laverty, and communicated a threat (justified or not) to report her to her superior, there are very likely to be reasons unrelated to race explaining (not justifying) her alleged behaviour. Other than his own testimony as to his belief in this regard, the applicant indicated that he will have no evidence from which the Tribunal could infer or deduce that Ms. Laverty’s behaviour was based in whole, or in part, on race and ethnic origin. Without any evidence to support the applicant's feeling that race and ethnic origin was a reason for Ms. Laverty’s alleged rudeness, I see no reasonable prospect that the applicant will be able to show a link between her behaviour and his race or ethnic origin.

iii) June 18, 2010 Letter

34Also attached to the Application is an August 16, 2010 revision of a letter dated June 18, 2010. The applicant calls it a “document dated June 18, 2010 regarding signature requirement on Probationary Contract” and it indeed deals, for the most part, with his refusal to sign a probationary contract that the University required in order for him to continue his studies. While there is no specific reference to race or ethnic origin in the letter, the end of the letter lists incidents that the applicant believes “constitute grounds of discrimination.” He states that the list was created after discussion with the University’s Student Association Vice President. The following are the alleged discriminatory incidents, listed by the applicant, with no guidance given on what ground might be related to which incidents, who was involved, when the incident took place, etc.:

• “Being laughed at and ignored at the science advising office.”
• “Blatantly refused to help when genuine topics relating academic matters were asked such as transfer credit, timetable conflict, exam scripts viewing, appeal for final grade.”
• “Senior lab instructor exhibited favoritism and favors to the laboratory teaching assistant when complaints were brought forward and not dealt with fairly to student. “
• “Senior lab instructor repetitively not answered student’s questions.”
• “Senior laboratory instructor denied student to change to specific or alternate lab section which will be conflict free.”
• “Laboratory teaching assistant unfairly reduced the score after confirming the answers with another laboratory teaching assistant.”
• “Student denied the right to inquire the component of the practical laboratory exam mark.”
• “Student was denied help from the instructor or course administrator.”
• “The final examination was remarked when not requested.”

35Some of these incidents appear to refer to incidents that have been reviewed above in the context of allegations of discrimination on the basis of age and creed. Without evidence that the other incidents are related to a ground listed in the Code, none of these incidents can reasonably be considered to amount to a Code violation. While the applicant may feel that the above incidents occurred because he is Chinese, without any evidence to link the above incidents to the applicant’s race or ethnic origin, I see no reasonable prospect for the applicant to prove on a balance of probabilities that the respondents violated his Code rights with respect to race or ethnic origin on the basis of the incidents he lists above.

36The applicant’s counsel made no other submissions on race or ethnic origin at the Summary Hearing with reference to the above three documents, nor did he make submissions to link ethnic origin or race with the applicant’s other descriptions of incidents involving the applicant and the various respondents. I therefore dismiss the Application insofar as it alleges discrimination or harassment on the basis of race or ethnic origin.

DOES THE ALLEGATION OF REPRISAL HAVE A REASONABLE PROSPECT OF SUCCESS?

37Section 8 of the Code provides:

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 of another person under this Act, without reprisal or threat of reprisal for so doing.

38In Noble v. York University, 2010 HRTO 878, at paragraphs 33-34, the Tribunal summarized the key elements in reviewing what must be established to justify a finding of reprisal:

Thus, in a complaint or application alleging reprisal, the following elements must be established:

a. An action taken against, or threat made to, the complainant;

b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and

c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

In addition, the following principles are relevant:

a. There is no strict requirement that the complainant has filed a complaint or application under the Code, and

b. There is no requirement that the Tribunal find the respondent did in fact violate the complainant’s substantive rights to be free from discrimination.

39In response to the direction on Form 1-C of the Application that the applicant explain why he believes that he was reprised against, the applicant simply refers to his June 18, 2010 document, and his “Respondents List” with respect to Tracey Marshall, Bill Muirhead, Kim Carr and Gary Pitcher. These four respondents were involved in the June 16, 2010 incident when the University requested the applicant to sign a probation contract, and, upon his refusal, when they served him with the Notice.

40Unfortunately, while both the June 18, 2010 document and the Respondents List continually use the word “reprisal”, the applicant appears to use the word with the understanding that a reprisal is any unwelcome conduct that occurred after he communicated to the respondents that he was considering reporting “discrimination”, “harassment” or “reprisal” to the Human Rights Commission or to the Tribunal. Neither the applicant’s June 18, 2010 document nor his Respondents List explain why the applicant believes that an action was threatened or taken against him for the reason that he tried to claim or enforce a right under the Code, nor does either document explain how the applicant will demonstrate an intention on the part of a respondent to retaliate for his claiming or attempting to enforce a right under the Code. The allegations of reprisal are not clear in the applicant’s written submissions. I am therefore dependent on the oral submissions of counsel for the applicant provided at the Summary Hearing.

41Counsel for the applicant focused his reprisal arguments on 1) an allegedly threatening e-mail from Tracey Marshall, Manager of Student Rights and Responsibilities and a personal respondent, 2) a direction from the University President that the applicant not communicate directly with him, but instead with Ms. Marshall, and 3) the June 16, 2010 meeting.

42Counsel argued that the University and some of the personal respondents were aware that the applicant was claiming his rights under the Code well before the incidents of June 16, 2010. He pointed to e-mails referencing the Human Rights Legal Support Centre, as well as the Commission and the Tribunal. Counsel argued that Tracey Marshall knew that the applicant felt he had been discriminated against in a variety of ways, and knew that he was trying to enforce his rights under the Code. He referred to a “clear threat” by Ms. Marshall quoted in a report by the University’s investigator contained in the respondents’ materials:

Ms. Marshall first met Mr. Huang in August 2009. He had complaints of mistreatment by staff including Kimberly Young, Emily Laverty and John Easton. Ms. Marshall contacted the Dean about the complaints and arranged a meeting involving Mr. Huang and the Dean to discuss the complaints. Ms. Marshall believes there may have been two possibly three meetings with Mr. Huang to resolve the complaints. At the last meeting Mr. Huang presented his demands to resolve the matter which she recalls included two years of course payments and marks reversed for the grades that he had appealed. Ms. Marshall said she told Mr. Huang that he should move forward that "you are going to hurt yourself if you don't let this go."

43I do not agree that this remark by Ms. Marshall was a threat to the applicant that if he continued with any attempt to claim his rights under the Code, the respondents would reprise against him. Her words were that he was going to hurt himself. In the context of his numerous unsuccessful attempts to claim higher grades, her remark, on its face, does not provide a basis to infer reprisal. Without any further submissions on intended evidence to link Ms. Marshall’s remark to reprisal, I find that there is no reasonable prospect that the applicant will be able to demonstrate that it was reprisal.

44Counsel for the applicant also argued that the fact that the University President directed the applicant to deal with Tracey Marshall instead of him in January 2010 is further proof of reprisal because Tracey Marshall is responsible for non-academic behaviour and enforcement of the Code of Conduct. Given that there is no indication that the applicant has any other evidence, I find that there is no reasonable prospect that the applicant will be able to demonstrate that the President's refusal to communicate directly with the applicant was an action against him or a threat to him. There is no reasonable prospect that the applicant will be able to demonstrate that the mere requirement that the applicant deal with the Manager of Student Rights and Responsibilities, instead of the University President, was an action against the applicant or threat to him, much less intentional retaliation against the applicant for claiming or enforcing his rights under the Code.

45Counsel for the applicant argued that the University perceived his client as a threat and that this was an act of reprisal under the Code. To support this position, he referred to Ms. Marshall signing the Notice on behalf of the "Office of Campus Safety" and he referred to e-mails from Ms. Marshall in which she copied security. While this position may be true, particularly in light of Ms. Marshall's ultimate service of the Notice, I find that the applicant has no reasonable prospect of demonstrating that any respondent perception of the applicant as a threat or Ms. Marshall's ties with campus security is an action against the applicant or threat to him because he tried to claim or enforce a right under the Code. On the basis of the documents filed by the applicant, it would appear that the University perceived the applicant to have behaved badly on May 28, 2010 when he upset staff, and the Notice is unrelated to the fact that the applicant sought to claim or enforce his rights under the Code.

46Finally, counsel for the applicant argued that the respondents’ request that the applicant sign the probationary contract letter if he wished to return to the campus, and then, when he did not, the University’s Notice prohibiting him from entering the campus was reprisal for the applicant attempting to enforce his rights under the Code. The only intended evidence to which counsel for the applicant pointed to support this position was the circumstantial evidence involving the timing of the service of the Notice in June 2010 -- simply that the respondents were by that time aware that the applicant was contemplating bringing his concerns to the Tribunal. I note, however, that documents filed by the parties demonstrate that certain University staff or faculty had been made aware throughout 2009 of the applicant's claim that he has experienced “discrimination” or “harassment” at the University, and, by January 5, 2010, the applicant had informed the University’s Diversity Officer that he was in contact with the Human Rights Legal Support Centre. Without commenting on whether this might amount to the applicant attempting to claim or enforce a right under the Code given that no ground appeared to be referenced in any of these communications, the timing does not support the applicant’s position that the incidents in June 2010 were reprisal.

47As the Tribunal stated in Noble, supra, disciplinary action or threatened discipline, which is not related to the exercise of a right under the Code, will not constitute reprisal. If timing is the only evidence upon which the applicant intends to rely in order to demonstrate that the respondents reprised against him on June 16, 2010 in the context of discipline for his conduct on May 28, 2010, then there is no reasonable prospect for the applicant to succeed. The scheduling of the June 16, 2010 meeting, the request at that meeting that the applicant sign a probationary agreement, and, when he did not, the serving of the Notice upon him all appear to be unrelated to the exercise of any right under the Code. Without any submissions pointing to further evidence to connect the incidents of June 16, 2010 to the respondents’ alleged intent to retaliate against the applicant for attempting to claim or enforce his Code rights, I find that the applicant has no reasonable prospect of demonstrating that these actions or threats were reprisal under the Code.

DECISION

48This Application, in its entirety, is dismissed.