Katz v. York University, 2012 HRTO 1379

Human Rights Tribunal of Ontario

B E T W E E N:

Samuel Katz
Applicant

-and-

York University
Respondent

INTERIM DECISION

Adjudicator: Naomi Overend
Date: July 12, 2012
Citation: 2012 HRTO 1379
Indexed as: Katz v. York University

WRITTEN SUBMISSIONS

Samuel Katz, Applicant
Erik Turkienicz, Counsel

York University, Respondent
Ronald G. Slaght, Counsel

1This Application alleges discrimination with respect to goods, services and facilities because of creed and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The hearing in this matter is scheduled to commence October 3, 2012.

2The applicant has brought a Request for an Order During Proceeding (“RFOP”) for production of:

all arguably relevant documents relating to this case, in particular the notes, internal memoranda, conclusions, correspondence and e-mail, both to and from Janet Morrison relation to the Applicant and to other parties subject to the Respondent’s investigation into the incident at Van Hall at issue in this matter.

3Janet Morrison was the “internal adjudicator” retained by the respondent to do an investigation into a complaint initiated by the Vice President Students into possible violations of the Code of Student Conduct. The applicant was provided a copy of Dr. Morrison’s file in relation to the investigation of his conduct, but now seeks the remaining notes concerning him, as well as the notes in relation to the seven other students whose conduct was also investigated.

4The respondent opposes production on the basis that the information contains personal information and is not relevant to the allegations in the Application. It appears to be common ground between the parties that any concerns about the disclosure of personal information is mitigated by the fact that the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 permits disclosure compelled by order of a tribunal or court. In any event, for the reasons described below, I do not need to address the privacy considerations raised by this Request.

5In order to determine the issue of arguable relevance, it is important to understand the applicant’s allegations. The applicant’s response to the request under section 8 of the Application (Form1) to describe each event believed to be discriminatory, can be summarized as follows:

1. He was staffing an information table for Hasbara Fellowships (“Hasbara”), a student organization at the respondent university, when a verbal altercation broke out between students who were opposed to Hasbara’s goals. At some point he was hit by two persons who were trying to get him to drop his camera, which he was using in an attempt to record the incident.

2. The respondent security staff arrived “[a]fter some time,” thus ending the incident.

3. He and his organization put out a press release the following day citing their concerns about anti-Semitism at the respondent university.

4. Two days later, he and other members of this organization were advised that they were the subject of an investigation following a complaint by the Vice-President Students. The applicant is of the view that this investigation was initiated as part of the respondent’s overall plan to remove Hasbara from the respondent campus.

5. The applicant asked to view the security video taken at the time of the incident, but this request was denied. However, the respondent’s Media Relations Department showed that video to members of the media and community groups and levelled disparaging comments about the applicant during these viewings. The applicant was not allowed to view the tape until two or three weeks after the incident, by which time, his reputation was damaged.

6. The adjudicator assigned to this investigation found that an assault had occurred. The adjudicator also found that the respondent had inappropriately shown the video to the media and community group members before showing it to him.

6Suffice to say, the respondent disagrees with the applicant’s version of events, as well as his interpretation of the motivations behind them.

7In support of his request for production, the applicant makes the following assertion in his RFOP:

The discrimination experienced by the Applicant took place in the context of a disciplinary process in which other students who were involved in the same incident were disciplined as well, and in which the Applicant was treated differently than those other students based on prohibited grounds. Ms. Morrison’s notes and conclusions regarding those other subjects of the investigation are therefore directly relevant to this hearing. [Emphasis added]

8The allegation in the applicant’s RFOP is not consistent with the particulars concerning the investigation set out in his Application. The Application does not suggest that the internal investigation was conducted in an unfair manner, or that the adjudicator reached unfair conclusions. On the contrary, inasmuch as he discusses the investigation, the applicant alleges that the adjudicator’s findings were favourable to him. The first time the applicant asserts differential treatment with respect to the internal investigation is in the RFOP.

9In summary, the applicant appears to allege that the documents sought are relevant with respect to allegations which are not contained in his own pleadings. In light of this, there is no basis for me to find they would be arguably relevant to the issues raised in his Application or to order production.

10In the absence of arguable relevance, the applicant’s request for production is denied.