Wasi Khan v. Seneca College of Applied Art and Technology and Karen Murkar, 2012 HRTO 1484

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wasi Khan Applicant

-and-

Seneca College of Applied Art and Technology and Karen Murkar Respondents

INTERIM DECISION

Adjudicator: Naomi Overend Date: July 31, 2012 Citation: 2012 HRTO 1484 Indexed as: Khan v. Seneca College of Applied Art and Technology

WRITTEN SUBMISSIONS

Wasi Khan, Applicant

Rajendra S. Negi, Counsel

Seneca College of Applied Art and Technology and Karen Murkar, Respondents

Ann Burke, Counsel

Introduction

1The applicant filed his Application, alleging discrimination in employment on the basis of race, place of origin, ethnic origin and age, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on September 28, 2010. The Tribunal issued two Interim Decisions, 2011 HRTO 148 and 2011 HRTO 568, in which several of the applicant’s allegations were removed and/or clarified. The remaining allegations assert that the applicant was not hired for part-time teaching assignments for any of the six academic semesters in 2009 and 2010 on the basis of his age and gender.

2The matter is scheduled to proceed to a hearing on the merits on September 19 and 20, 2012. In preparation for the upcoming hearing, the applicant filed a Request for Order During Proceedings (Form 10) (“Request”) in which he asked for extensive production of information and documents from the respondents.

3This Request is opposed by the respondents on the basis that the information requested is not relevant to the allegations made by the applicant that the individual respondent, Karen Murkar, discriminated against him on the basis of age and gender when she preferentially hired younger candidates and women.

decision and analysis

Student Evaluations for Part-time Math Professors for 2001-2008

4The first set of documents the applicant requests are student evaluations for all part-time professors who taught math during the period from 2001-2008 for the College, the Faculty of Business-Arts and Commerce (“Faculty of Business”) and the School of Accounting and Finance (“School of Accounting”). He asks for this information on the basis that the respondents assert in their Response to the Application that the applicant’s student evaluations for that period were below the “bench mark” averages for the College, the Faculty of Business and the School of Accounting.

5It is not clear whether the applicant wishes to obtain the scores for the individual part-time professors or the aggregate scores. The respondent College has already provided the aggregate score for the College, the Faculty of Business and the School of Accounting for all faculty (i.e., not only the part-time professors who teach math, but all faculty teaching all subjects). It is also not clear to me the purpose of obtaining this information and I am, therefore, unable to evaluate the relevance of this information. I am not prepared to grant the requested production of this information at this time.

6If the applicant files written submissions clarifying what he wants vis-à-vis the student evaluations for this period and why he wants it, the respondents may make submissions on the whether this information is easily obtained, its relevance and any other consideration.

Student Evaluations for 2009-2011

7The second set of documents the applicant requests is the student evaluations for a set of named professors for the years 2009-2011. I understand that some of this information may not be available (i.e., the evaluation for the summer semesters); moreover, I cannot see the relevance of this information. The applicant did not teach in the School of Accounting and Finance during this period, and so there would be no basis of comparison. This request is denied.

Document Setting out the Mandatory Use of Student Evaluations

8The applicant asks the respondents to provide any documents that “clearly indicate” that a student evaluation “must be used in making hiring decisions.” If such a document (or documents) exists, the respondents are ordered to provide it to the applicant.

Document Indicating Applicant Apologized in relation to the Martis Email

9The applicant indicates he is only looking for documents the “clearly indicate” that he submitted an apology to Carol Riggs or Maureen Day. It is not clear whether the applicant believes such a document (or documents) exists or whether he is seeking confirmation that no such document exists. In any event, if the respondents have such a document (or documents) in their possession that they have not yet disclosed to the applicant, they are ordered to do so.

Detailed Resumes of Specified Faculty Members

10The applicant has asked that the respondents be ordered to provide “detailed resumes” of 44 individuals, who I presume are faculty members. The applicant has not specified who these individuals are or why he requires their resumes to refute the respondents’ assertion that he lacked the qualifications to teach certain courses in the School of Accounting and Finance. At best, the purpose of obtaining this information is to engage in what could be a lengthy cross-examination of the respondents’ witnesses on an issue that is collateral to this Application. The request is, accordingly, denied.

2004 Application to the Ministry of Training, Colleges and Universities

11It is not clear the relevance of this information to this litigation. In any event, it would appear from the applicant’s Freedom of Information (FOI) request, a copy of which he sent in to the Tribunal, that the respondent college advised him that this was public information available on two specified websites. This request is denied.

Document Setting out Criteria, Rules, Policy or Guidelines for Hiring Part-time, Occasional and Partial-load Faculty

12The applicant has asked for a copy of “the document” that sets out the criteria, rules, policy or guidelines for hiring the above-listed faculty. If such a document (or documents) exists, the respondents are ordered to provide it to the applicant.

Status of Specified Faculty Members

13The applicant has asked the respondents to provide the status (full-time, part-time etc.) of 67 individuals who are apparently currently on faculty at Seneca. He wishes to obtain this information to “verify that” the individual respondent has acted in accordance with the Collective Agreement. On its face, I cannot see the relevance of whether the respondents have acted in accordance with the governing Collective Agreement to the matters in issue in this case. This case is not about whether the respondents have acted unfairly or contrary to the Collective Agreement, but whether they have acted in a manner that violates the applicant’s rights under the Code. This request is denied.

Information on the Age and Gender of Faculty Members

14The applicant has set out this request by listing the faculty who apparently taught the courses he believes he was qualified to teach for seven semesters (i.e., the six semesters in 2009 and 2010 and the winter semester in 2011). There is a significant amount of duplication in this request as many of the faculty teach repeated semesters and/or more than one course in any semester.

15In their disclosure of arguably relevant documents under Rule 16.1, the respondents prepared several lists of faculty members with their date of birth, age and gender. A cursory review of these lists shows that some, if not all, of the information requested by the applicant has already been disclosed. There is no indication that the applicant has compared his request with the information previously disclosed to him.

16I am not prepared to grant the request for production of this information at this time. In the event that the applicant streamlines his request by taking out duplicate names, and asks only for information he believes has not yet been provided by the respondents, he may renew his request. The respondents will then have an opportunity to file written submissions in response.

order

17In sum, I have made the following orders:

a. The applicant’s request for student evaluations for all part-time professors who taught math during the period from 2001-2008 for the College, the Faculty of Business-Arts and Commerce and the School of Accounting and Finance is denied at this time. The applicant may renew this request by filing written submissions clarifying what he wants and why he wants it. The respondents may make submissions on whether this information is easily obtained, its relevance and any other consideration in the event the applicant renews his request.

b. The applicant’s request for student evaluations for the years 2009-2011 in respect of the named professors is denied.

c. The respondents are ordered to provide any documents in their possession which clearly indicate that student evaluations must be used in making hiring decisions at the respondent College.

d. The respondent College is ordered to provide any document in its possession that it has not yet disclosed which clearly indicates that the applicant submitted an apology to Carol Riggs or Maureen Day regarding the Martis email.

e. The applicant’s request for detailed resumes of the 44 specified individuals is denied.

f. The applicant’s request for the 2004 application to the Ministry of Training, Colleges and Universities is denied.

g. The respondent College is ordered to provide any document in its possession that sets out the criteria, rules, policy or guidelines for hiring part-time, occasional and partial-load faculty.

h. The applicant’s request for the status (full-time, part-time etc.) of the 67 specified individuals is denied.

i. The applicant’s request for the age and gender of specified faculty members is denied at this time. The applicant may renew this request by filing a streamlined list, which does not include duplicate names of individuals and only includes individuals for whom the respondents have not yet provided this information. The respondents will have an opportunity to file written submissions in response.