HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sidath Senadheera
Applicant
-and-
Ryerson University
Respondents
decision
Adjudicator: Judith Allen
Indexed as: Senadheera v. Ryerson University
APPEARANCES
Sidath Senadheera, Applicant ) Self-represented
Ryerson University, Respondent ) Elizabeth Kosmidis, Counsel
INTRODUCTION
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”), alleging discrimination in both employment and the provision of services on the basis of disability. Specifically, the Applicant alleges that his thesis supervisor and employer, Dr. Venkatakrishnan and Dr. Yeats, Dean Emeritus, of Ryerson University, failed to accommodate his mental disability by providing flexible hours. He further alleges that the respondent ultimately severed his employment as a research assistant and terminated his status as a Ph.D. candidate because of his mental disability.
DECISION
2For the reasons which follow, I dismiss the Application.
BACKGROUND
3The hearing proceeded on August 2, 2011, and continued on October 4, 2011, to complete legal argument. The applicant notified the Registrar that he did not wish to make legal argument. However, he declined to withdraw his Application. As a result, only the respondent participated on October 4, 2011.
4On August 2, 2011, the personal respondents originally named in the Application were removed as parties and Ryerson University was added as the corporate respondent, on consent and in accordance with Ms Kosmidis’ undertaking that she was retained to represent both the corporate and personal respondents. As in Al-Ghaithy v. University of Ottawa, 2011 HRTO 552, it is Ryerson University’s policies, practices and ultimate action of cancelling the applicant’s registration that are in issue in this complaint. The individuals who were initially named as personal respondents acted at all times within their respective authorities (see Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, and Persaud v. Toronto District School Board, 2008 HRTO 31).
5The applicant alleges that he suffers from a mental disability, specifically, bi-polar affective disorder. He alleges that he was enrolled in a Ph.D. program in Mechanical Engineering from May of 2008 until September of 2009 at Ryerson University. His thesis supervisor was Dr. Venkatakrishnan and the applicant formed part of the latter’s research group.
6The applicant’s primary allegation is essentially that Drs. Venkatakrishnan and Yeats were unwilling to accommodate his disability and proceeded to have him expelled from Ryerson University using as a pretext an alleged misrepresentation about his academic history on his Ryerson University application. In support of this primary contention, the applicant alleges that he requested an accommodation of his disability such that he could work from noon until 7:00 p.m., rather than 9:00 a.m. to 5:00 p.m., because his medications interfered with his ability to get up in the morning. The respondent alleges that the applicant lied on his Ryerson University application when he failed to disclose his previous attendance at Waterloo University and this was the reason his registration was cancelled.
7The applicant also alleges that he was an employee of Ryerson University at the material times and that he was discriminated against on the basis of disability through what he alleges was the termination of his employment.
8Finally, the applicant alleged that he requested that someone else review his Ph.D. thesis because, he alleged, Dr. Venkatakrishnan cannot understand the quantum mechanics that formed part of his thesis subject. The Tribunal does not have the power to deal with general allegations of unfairness; in order to continue in the Tribunal’s process, an applicant must allege discrimination on the basis of one of the grounds set out in the Code (see Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389). Whether or not these particular allegations have any merit, the Tribunal has no jurisdiction to decide them and accordingly they are not further addressed in this decision.
ISSUES
9The issues before the Tribunal are as follows: (i) was the applicant an employee of Ryerson University (at the material times) and if so, did Ryerson University discriminate against the applicant on the basis of disability by terminating his employment for Code-related reasons; (ii) did Ryerson University discriminate against the applicant on the basis of disability when it cancelled his registration as a Ph.D. candidate on November 12, 2009; and (iii) did Ryerson University discriminate against the applicant by failing to accommodate his disability during the course of his tenure as a student at the University?
EVIDENCE AND ANALYSIS
10I allowed the evidence of two witnesses called by the respondent to be heard first in order to accommodate their schedules. The first witness was Lynn Judge, the Director of Graduate Studies from the University of Waterloo who was summoned by the respondent pursuant to a summons to witness. The second witness was Dr. Rose, a family physician who worked at the Ryerson University Medical Centre and who treated the applicant. Although she was called by the respondent, the applicant consented to her testimony. The applicant testified on his own behalf. The respondent then called Mickey Cirak, Student Conduct Officer of the Assessment of Risk Behaviour Team, Ryerson University, Cathy Faye, and Dr. Venkatakrishnan.
The Alleged Termination in Employment
11The respondent denies that the applicant was an employee of the University at the time of the events complained of or that his employment was terminated. The evidence establishes that the applicant received financial support as a student, which did not make him an employee. The applicant did receive a stipend as a teaching assistant during the fall term of 2008 and was provided a T-4 slip for that employment income. However, at the relevant time of the allegations, the respondent alleges that the applicant was simply a graduate student and not an employee. The applicant concedes that he did not receive a T-4 for 2009. There is no dispute that the monies received in 2009 are in the form of student grants and not in the form of employment income.
12Given my finding that the applicant was not an employee of the respondent Ryerson at the material times, his allegation of termination on the basis of disability has no basis and is dismissed accordingly.
The Allegations Relating to De-registration as a Student
Applicant’s Academic History
13Cathy Faye, Director of Academic Graduate Forms, testified that on October 16, 2009, she learned that the applicant had attended the University of Waterloo and had failed to disclose the information on his May 9, 2008 application form. She invited the applicant to a meeting with Dr. Yeats. The applicant declined to meet with Dr. Yeats. Ms Faye then wrote to the applicant on November 9, 2011, to ask for an explanation for the misrepresentation. Ultimately the applicant replied that he did not feel the information was helpful or relevant.
14Ms Faye then cancelled his registration, effective September of 2009, thereby permitting the applicant to retain the credits he earned in 2008. In the letter, the applicant was given an opportunity to appeal the decision.
15The respondent relies upon the warning contained on the Ryerson University application form, that the applicant admits reading and understanding at the time, that the failure to disclose his academic history may result in the cancellation of his registration. The respondent alleges that the applicant’s failure to disclose on his May 5, 2008 application form that he attended University of Waterloo for five terms between September 2000 and May 2002; failure to disclose his transcripts from the University of Waterloo; and failure to disclose his attendance at the University of Waterloo on his curriculum vitae was a breach of the Student’s Code of Academic Conduct and that it resulted in another qualified student being denied admission to the Ph.D. program.
16The applicant responded by email on November 10, 2009 and stated that he did not view the information about his attendance at the University of Waterloo as relevant or helpful and thought that it would “inflate his capabilities in an unreasonable way.” The applicant did not allege that the failure to disclose his academic history was in any way related to his disability.
17The respondent advised the applicant that the information was very relevant to his application and decided to cancel his registration at Ryerson University, retroactive to September of 2009. By doing so, the respondent permitted the applicant to retain the four credits he had earned in 2008. As noted above, the applicant was advised that he could appeal the decision. He did not file an appeal.
18The applicant asserted that Ms Faye conspired with Dr. Venkatakrishnan to cancel the applicant’s registration as a pretext to disguise the fact that it was because of his disability. There was no direct evidence that Ms Faye had any information about the applicant’s disability from Dr. Venkatakrishnan, or anyone else. The applicant cross- examined Ms Faye on the timing of two critical meetings and it was clear that she did not have any information about the applicant’s disability. Moreover, had the applicant raised his disability as an issue within the appeal period, Ms Faye testified that it would have been considered. I also note that the applicant has never alleged that the misrepresentation on his application was related in any way to his disability.
19The evidence of Ms Judge showed that the applicant had been enrolled at the University of Waterloo as a Ph.D. candidate in Physics for a period of five terms between 2000 and 2002.
20The applicant did not contradict any of the above evidence. Accordingly, there is no evidence to support the applicant’s allegation that his de-registration as a Ph.D. candidate effective September of 2009 was related to his disability. I find that the de-registration decision was made for bona fide reasons untainted by any Code-related factors. The allegation is dismissed.
Applicant’s Disability and Accommodation-related Allegations
Scheduling
21Dr. Rose reviewed the medical file of the applicant, which dates from December 8, 2008, to October 28, 2009. During that period, the applicant was seen by Dr. Rose and by Dr. Chopra, a psychiatrist. Dr. Rose confirmed that the applicant was diagnosed with Bi-Polar Affective Disorder in 1996 but was controlling it with medication. Dr. Rose acknowledged that the applicant was suffering from insomnia in May of 2009. The applicant was not interested in psychotherapy as he “did not believe in it.” He did not wish to change his medication. She provided him a medical note on May 19,2009, which alerted Dr. Venkatakrishnan to the diagnosis of Bi-Polar Affective Disorder and its impact upon the applicant’s concentration levels. The note did not list any restrictions.
22Despite there being no specific restrictions, Dr. Venkatakrishnan permitted the applicant to take the first week off in June of 2009.
23The medical file indicates that the applicant was in Colombia and Cuba during the first week of June 2009, and took two weeks’ holidays subsequent to August 7, 2009. The applicant contacted Dr. Chopra on September 15, 2009, indicating he was just getting back from vacation and was seeking a doctor’s note to “explain difficulties with his scheduling and concentration due to his medications”. The applicant also reported increased conflict with his supervisor.
24At no time, prior to October 28, 2009, did either Dr. Rose or Dr. Chopra view the applicant as potentially harmful to himself or others. At no time did they believe that he was experiencing a “major mood episode”. Although they viewed his level of stress as connected to his Bi-Polar Affective Disorder diagnosis, neither of them saw the disorder as the principal cause of his conflicts with his supervisor. Dr. Rose did provide a note to the applicant on September 15, 2009, recommending “allowances for flexibility in [his] schedule”, at the applicant’s request. The applicant attempted to give the medical note to Dr. Venkatakrishnan, but was directed to provide it to the Assessment Centre to protect his patient confidentiality. The applicant did not dispute any of the above evidence, other than to complain about Dr. Venkatakrishnan declining to accept the September 15, 2009 note from Dr. Rose.
25Contrary to the allegations in the application, the applicant never requested a flexible schedule until the note from Dr. Rose, dated September 15, 2009, was produced. Moreover, on the evidence of the applicant, Dr. Rose and Dr. Venkatakrishnan, the applicant was away in Cuba and Colombia for extensive periods throughout the summer of 2009. The un-contradicted evidence was that the University labs were accessible 24 hours a day, seven days a week and there was never any expectation that the applicant be present from 9:00 a.m. to 5:00 p.m. Dr. Venkatakrishnan’s expectation was that he could meet with the applicant on a regular basis to ensure that progress was being made.
26I therefore make the following conclusions: (i) there was no request to accommodate the applicant’s schedule at the relevant time; (ii) in any event, a flexible schedule was in place throughout the relevant time; (iii) the applicant was not following an identifiable schedule and was not making himself available for any progress reports; and, (iv) there was, therefore, no breach of a duty to accommodate the applicant.
27In light of the finding that there was no breach of a duty to accommodate, an analysis of “undue hardship” is unnecessary.
Threatening or Erratic Behaviour
28Mr. Cirak, the Conduct Assessment Officer, first contacted the Ryerson Health Centre to arrange for a psychiatric appointment for the applicant in May of 2009, as a result of contact from Dr. Venkatakrishnan. Mr. Cirak next contacted Dr. Chopra on October 28, 2009, and advised him that the applicant was being suspended based upon a recent threatening letter. Dr. Chopra noted that the applicant had cancelled his appointment and might require hospitalization.
29Dr. Venkatakrishnan testified that although the applicant performed well during the first six to eight months in 2008, things began to deteriorate in April of 2009. There was a physical altercation between the applicant and another student, which resulted in the applicant agreeing to work in a separate lab on a separate floor. The applicant began sending emails to Dr. Venkatakrishnan that were disturbing in nature. On April 30, 2009 the applicant sent an email to Dr. Venkatakrishnan and his wife, Dr. Bo Tan, which states in part:
I never saw a abnormally smart student/researcher with a normal personality of a regular Joe. Most of them are good at hiding their true eccentric personality. Here are few examples: At Waterloo one brilliant world famous math Professor tried to kill his wife and was put on house arrest. And another very good Ph.D. student set fire to the world’s biggest Math dept. One of the smartest people in the world (was at Caltech in 1930’s as the Physics dept head and as Einstein’s boss) J. Robert Oppenheimer tried to poison another physicist and he was kicked out from the Cavendish Laboratory in Cambridge by Rutherford. He was then forced to go for counseling for a illness called Schizophrenia.
30It was after receiving the above-quoted email that Dr. Venkatakrishnan contacted the Assessment for Behaviour Risk Team which resulted in the applicant seeing Dr. Rose and Dr. Chopra.
31Throughout the period May to August of 2009, the applicant continued to send erratic emails and took a number of trips to South America.
32On September 10, 2009, Dr. Venkatakrishnan met with the applicant and provided the following evaluation of progress:
“The supervisors have done all the experiments for the student and the student have [sic] not conducted any experiments. In fact the supervisors have also conducted done all of the SEM analysis for you. It is expected of all the students to conduct experiments and analysis, which you were not able to do even after 18 months of your time in my research lab.
In spite of repeated advice and suggestions by Dr. Tan Bo and Me (both supervisors) for more than a year, we don’t notice any change in your analysis/discussion and you only discuss on quantum mechanics (what you know and you have confirmed in your previous mail). Even all the reviewers of the papers you have submitted questioned your logic of using quantum mechanics principle and it does not apply for the applied laser physics we are conduction [sic] in our research group. After spending countless number of hours all the discussion/analysis remains the same.
You are not there in the lab most of the days. As I instructed I need to see you on all week days and discuss with you your progress. You have taken unauthorized holidays for an extended period of time.
You have submitted manuscript without authorization from the research results conducted in our research lab with your supervisors name in them. This is not acceptable in any institution.
You have submitted articles for conference/talks with out authorization/informing your supervisor. This is not acceptable.
The manner in which you treat your supervisor is unacceptable and your e-mails are clear evidence on your manners.
Although you showed some progress for 6 – 8 months from the start of your RA position on the 1st May 2008, there was no progress made in your research for the past year. The status of your research report for the past one year is unsatisfactory.
After spending countless number of hours with you we do not see any progress made in your research work. You do not take in to consideration and incorporate any of the advice we give in the analysis of the research results. You have not understanding laser physics or making effort to understand laser physics, which is fundamental of your Ph.D. research.
Hence, your progress in your Ph.D. work is not satisfactory and needs significant improvements.”
33Coincident with the communication from Ms Faye, the applicant sent more emails to Dr. Venkatakrishnan, which were perceived by Dr. Venkatakrishnan to be threatening in nature. One threatened to blow up the laboratory. The police were involved and on October 28, 2009 the applicant signed an Undertaking to not have communication with Dr. Venkatakrishnan or to attend at Ryerson University. The applicant does not dispute these events and, in fact, produced the Peace Bond that he signed.
34The applicant denies any involvement in the altercation with the student in the spring of 2009. He does agree that he authored and sent the emails that were entered into evidence. He excuses his behaviour on the basis of his diagnosis of Bi-Polar Affective Disorder.
35Neither Dr. Rose nor Dr. Chopra’s notes indicate that the applicant was experiencing a major mood episode from the period May 19, 2009 to October 28, 2009. Their notes indicate that the applicant was unwilling to change medication or seek psychotherapy. Dr. Chopra’s notes indicate that he recommended the applicant try to improve his communication with Dr. Venkatakrishnan. There was no evidence that the applicant attempted to improve his attendance or his communication.
36Essentially, the applicant asserts that the respondent failed to accommodate his disability because it failed to tolerate his erratic behaviour, his inappropriate (and threatening) emails and the lack of progress he was making on his agreed to thesis subject.
37The applicant, however, introduced no evidence that this behaviour arose from his disability or that at any time he sought accommodation for this behaviour.
38At the hearing, I advised the applicant that the duty to accommodate is a joint responsibility and that generally the applicant is required to prove the restrictions caused by the disability, the treatment plan, compliance with the treatment plan and a prognosis for being able to work within the restrictions. Had the respondents not called Dr. Rose as a witness, the applicant would not have adduced any medical evidence.
39The applicant’s real issue is that he feels that the respondent took the administrative route to cancel his registration to avoid the accommodation issue. As noted above, there is no evidence of such a conspiracy.
40Ryerson University has a harassment and discrimination policy which specifically prohibits discrimination on the basis of disability and specifically addresses accommodation. The Assessment of Risk Behaviour Team that works with the Assessment Centre and the Health Centre is there, in part, to deal with accommodation issues.
41When Dr. Venkatakrishnan became aware of the diagnosis of Bi-Polar Affective Disorder in May of 2009, as a direct result of referring the applicant to the Assessment of Risk Behaviour Team, he approved a week off without being advised of any restrictions and in the absence of a request to accommodate. He was never advised of any other restrictions until the applicant attempted to give him Dr. Rose’s medical note, dated September 15, 2009. During the interim period, the applicant made no attempt to comply with reasonable expectations and made no requests for accommodation. Dr. Venkatakrishnan acted appropriately in getting the Assessment of Risk Behaviour Team involved, something the applicant took no initiative to do.
42To the extent that any further accommodation might have been appropriate the applicant was obliged to raise those issues and engage in a process with the respondent to determine an appropriate accommodation; having failed to either raise the issue of the need for accommodation or participate in any process that would have been required to determine appropriate accommodation in relation to any disability-related needs, he cannot now rely on an alleged failure to accommodate.
43At no time has the applicant suggested a treatment plan that he could comply with which would enable him to complete his Ph.D. program.
44In the result, the allegation of failure to accommodate his mental disability is dismissed. As with the allegation respecting scheduling, above, since there was no breach of the duty to accommodate, the issue of “undue hardship” does not arise.
45The respondent’s counsel provided a Book of Authorities, which I have reviewed.
46The key principle governing accommodation is outlined by the Supreme Court of Canada in Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970, i.e., that the individual seeking accommodation has to cooperate in the identification and implementation of reasonable accommodation.
47As noted by this Tribunal in Fisher v. York University, 2011 HRTO 1229, “[a]ccommodation does not alter the academic standards by which success in a course is determined” [at para. 45]. Nor does accommodation mean that a respondent is required to ignore mischaracterizations made by the applicant (see, Visic v. Elia Associates Professional Corporation, 2011 HRTO 1230, at para. 122), where misrepresentations respecting transcripts were made.
48For the above reasons, I find that the respondent Ryerson University has not breached the Code. The applicant’s employment was not terminated because the applicant was not an employee of Ryerson University in November of 2009. The applicant’s student registration in the Ph.D. program was cancelled for appropriate reasons unrelated to his disability in November of 2009. The respondent met its duty to accommodate with respect to the applicant. Therefore the Application is dismissed.
Dated at Toronto, this 18th day of June, 2012.
“Signed by”
Judith Allen
Member