HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Manal AlSaigh

Applicant

-and-

University of Ottawa, Paul Bragg, Fraser Rubens,

Thierry Mesana and Roy Masters

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: January 3, 2012

Citation: 2012 HRTO 2

Indexed as: AlSaigh v. University of Ottawa

WRITTEN SUBMISSIONS

Manal AlSaigh, Applicant ) Douglas Christie, Counsel

University of Ottawa, Paul Bragg, )

Fraser Rubens, Thierry Mesana ) J. Bruce Carr-Harris, Counsel

and Roy Masters, Respondents )

INTRODUCTION

1This Application, filed on June 11, 2010, alleges discrimination and reprisal with respect to services, goods and facilities and employment because of race, colour, ancestry, place of origin, citizenship, ethnic origin and disability.

2The respondents filed a Response on October 10, 2010, denying the allegations of discrimination and reprisal. The applicant filed a Reply on October 27, 2010.

APPLICATION ALLEGATIONS

3The applicant, a citizen of the Kingdom of Saudi Arabia, is a physician. The applicant came to Canada in 2003 to train in the University of Ottawa’s Faculty of Medicine Cardiac Surgery Program (“University”). The applicant alleges that, in the early years of the program, specifically 2003-2004, her medical skills were disparaged and she was excluded from learning opportunities due to negative stereotypes about her race or ethnic origin. The applicant indicates that for certain periods of time in 2006-2008 she took various medical leaves absence from the program and she was subjected to discriminatory treatment when she returned from those leaves. The applicant alleges in early 2009 the University required her to do additional rotations and ultimately required she re-commence her entire third year. The applicant also alleges that in June 2009, she was advised that she would not be permitted to enter into the fourth year of the program. The applicant alleges that in July 2009 she was denied legal representation to assist her with respect to her appeal of the decision denying her admission into fourth year. The applicant alleges that she was not permitted to attend an academic session in September 2009 and that, as of December 2009, she was no longer permitted to participate in training pending the outcome of her academic appeal.

DELAY

4By way of Interim Decision, 2011 HRTO 1385, the Tribunal directed the parties to file submissions with respect to the issue of delay. The Interim Decision noted that while the Application indicates that the last discriminatory event was in December 2009, the narrative portion of the Application alleges that the respondents discriminated against her from 2003.

5The applicant filed submissions on August 15, 2011. The applicant notes that events described in the Application narrative from 2003 up to 2008 are relevant to her recent experiences of discrimination, which occurred from December 2008 onwards. The applicant describes the pre-December 2008 allegations as context for the recent discriminatory events. The applicant states that no damages are sought with respect to the allegations that pre-date December 2008. Nevertheless, the applicant contends that all the allegations, and in particular those from December 2008 onwards, are a series of incidents and, therefore, within the timelines stipulated in section 34 of the Code.

6The respondents take the position that many of the allegations pertain to out-of-date incidents and, therefore, much of the Application has not been filed in a timely manner. The respondents submit that the allegations raise a number of discrete and separate incidents that occurred several years prior to the filing of the Application and that the Tribunal should refuse to consider all allegations that are over one year old. The respondents contend that the applicant filed an internal grievance in April 2009 and could have pursued human rights recourse at that time.

LEGAL PRINCIPLES

7Section 34(1) of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident or the last series of incidents of alleged discrimination. Section 34 states:

34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

34(2) A person may apply under subsection (1) after the expiry of the time limit under that section if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

8Section 34(2) provides that persons may apply to the Tribunal more than one year after the incident(s) based on certain conditions regarding the presence of good faith and the absence of prejudice. In examining potential delay, the Tribunal must first determine whether the application was filed more than a year after the incident or the last incident in a series of incidents of alleged discrimination. When assessing whether the allegations relate to a series of incidents, within the meaning of section 34(1)(b), the Tribunal considers the nature of the events and whether they may reasonably be viewed as a pattern of conduct or are comprised of incidents relating to discrete and separate issues without some connection or nexus: Duggan v. Villa Care Centre Nursing Home, 2010 HRTO 1695, and Baisa v. Skills for Change, 2010 HRTO 1621.

9Based on section 34(2), if the application was filed beyond the one-year timeline, the Tribunal must next be satisfied that a.) the delay was incurred in good faith and b.) no substantial prejudice will result to any person affected by the delay. In order to satisfy the Tribunal that the delay was incurred in good faith, an applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, and Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670. In assessing substantial prejudice, some factors that a Tribunal may consider include the length of the delay and the impact of the delay on the party’s ability to make full answer and defence, such as the availability of witnesses and documents, and the ability to investigate and retrieve evidence.

10Given that both good faith and a lack of substantial prejudice must be established in order to justify a delay beyond the one-year period, it is not necessary for the Tribunal to consider the issue of substantial prejudice where an applicant has failed to meet the good faith criteria: Esanu v. Georgetown Men’s Non-Contact Hockey League, 2009 HRTO 579. The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for delay. See, for example, Klein v. Toronto Zionist Council, 2009 HRTO 241. The mandatory one-year limitation period is consistent with the Code’s objective that human rights claims should be dealt with fairly and expeditiously. Thus, the Code requires an individual to act with all due diligence and file an application within one year of the alleged discrimination.

ANALYSIS

11The Application was filed June 11, 2010, and, therefore, the allegations that are clearly timely consist of events from June 11, 2009 onwards. The issue is whether the events alleged prior to the June 30, 2009 admission denial are part of a “series of incidents” that come within the purview of section 34(1)(b) of the Code.

12The first portion of the applicant’s narrative alleges that the respondent discriminated against her from the commencement of her educational program in 2003 until 2008. This section contains six paragraphs, which come under what the applicant has labeled “Background”. These “Background” paragraphs describe the following allegations:

• In 2003-2004, the applicant was subjected to offensive remarks;

• In 2006, after return from an approximately one-year medical leave, the applicant was subjected to unfair differential treatment;

• In 2007, the applicant was subjected to higher standards and denied access to personal information in deviation from standard policies and practices; and

• In 2008, after return from a seven-month medical leave, the applicant was subjected to discriminatory denial of status.

13The second portion of the applicant’s narrative follows under what the applicant has labeled as “Recent Discrimination”. This section of “Recent Discrimination” contains seven paragraphs describing the following allegations:

• In December 2008, the applicant was subjected to unfair requirements;

• In February 2009, the applicant was required to re-commence her third year;

• In April 2009, the applicant filed a formal grievance regarding discrimination;

• In June 2009, the applicant was denied admission into fourth year and required to undergo further remediation;

• In July 2009, the applicant was denied legal representation to assist in her appeal;

• In September 2009, the applicant was prevented from attending academic training; and

• In December 2009, the applicant was barred from continuing the program.

“Background”

14The incidents alleged under the heading of “Background” reference events commencing in 2003, approximately seven years prior to the filing of the Application and ending in December 2008. In this section, there are at least two extended periods of times where there is a temporal gap before the next alleged incident, in 2006 and 2008. I find that the incidents alleged in the “Background” section of the applicant’s narrative from 2003 to 2008 are clearly outside the one-year period as set out in section 34(1) of the Code and, consequently, untimely.

15I do not accept that these events are part of a series of incidents given the existence of two extended breaks in the temporal connection between the alleged events. The Tribunal has found that a gap of more than one year between incidents in a series would in most cases interrupt the series. See for example Savage v. Toronto Transit Commission, 2010 HRTO 1360, and Farrell v. Barrie Police Services Board, 2011 HRTO 1442.

16Further, I do not agree with the applicant’s argument that the out-of-time events (2003-2008) should be accepted as part of a series of events because the applicant alleges systemic racial discrimination. I understand the applicant’s position that the Tribunal needs to be sensitive to the patterned nuances of systemic discrimination and must be attuned to the subtle character of racialized discrimination: McKay v. Toronto Police Services Board, 2011 HRTO 499. However, as recognized by the Tribunal in Keith v. College of Physicians and Surgeons of Ontario, 2010 HRTO 2310, the bare assertion of systemic discrimination cannot by itself create a nexus between separate occurrences and, in the instant case, particularly where there were two gaps between the incidents.

17Next, I will examine whether the applicant has established that the delay in raising the 2003-2008 allegations was incurred in good faith and, if so, that no substantial prejudice has been caused to the respondent as a result of the delay.

18In considering whether the delay was incurred in good faith, the Tribunal has held that the onus is on the applicant to provide some reasonable explanation for the delay. See Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339. Factors for consideration include whether Code-related reasons (such as a disability) directly impeded the applicant’s ability to file an application; the nature of the allegations; and whether the applicant was able to raise allegations in other venues during the period in question: Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110, and Doyle v. Canarm, 2009 HRTO 674.

19I am not persuaded that the delay in bringing an Application regarding the “Background” events from 2003-2008 was incurred in good faith. The applicant’s submissions discuss at length the issue of “series of incidents”; however, there is little or no articulation of the applicant’s position with respect to good faith. The applicant has not provided any explanation to justify the delay for this period of time and why she did not pursue her rights earlier. In order to demonstrate good faith, the applicant must show more than simply an absence of bad faith: Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

20Notwithstanding the absence of submissions from the applicant regarding good faith, I have carefully considered the applicant’s materials and reviewed the narrative for indications of good faith. Based on the parties’ submissions, it seems that there were independent junctures in the chronology of various incidents where it appears the applicant’s alleged experiences of differential treatment had crystallized, causing the applicant to formulate her concerns of unfairness and, at some points, raise them with the respondents. As in the Keith case, supra, there was absolutely no reason why the applicant could not have pursued her human rights concerns as early as 2003-2004, when the alleged offensive remarks were made, or in 2006, when she was subjected to alleged differential treatment, or in 2007, when she was denied access to her personal records, or in 2008, when she returned from medical leave and was subjected to alleged discriminatory denial of status.

21Although the narrative notes that the applicant experienced stress, anxiety and depression, the information in the file confirms that the applicant raised with the respondents her concerns regarding her progress in the program in 2003-2008. The applicant continued to participate in the program during this period of time. The applicant has provided no particulars on the basis of which the Tribunal can determine that her mental health status precluded her from seeking timely human rights recourse.

22As such, it is not necessary for me to consider whether substantial prejudice would result from the delay. I find that the Tribunal does not have jurisdiction over the allegations in the “Background” section of the Application because these allegations relate to events that occurred beyond the one-year limit and the delay was not incurred in good faith.

“Recent Discrimination”

23With respect to the “Recent Discrimination” section which pertains to events from December 2008 and onwards, the applicant again submits these allegations are part of a series of incidents which are similar in nature and involve the common theme of discriminatory academic decisions.

24While the events alleged from December 2008 to June 10, 2009 in the “Recent Discrimination” section occurred more than a year prior to the filing of the Application, I find that these circumstances do constitute a series of incidents related to the alleged discriminatory events of 2009 that are clearly within the Code’s timeline. The allegations of differential treatment starting at the end of December 2008 (alleged adverse treatment regarding the applicant’s resumption of her third year) are similar in character to, and appear to lead to, the denial of her fourth year admission, which is a matter within the Code’s limitation period. As such, the out-of-time events (end of December 2008 to June 10, 2009) appear to have a nexus to the timely events (June 11, 2009 and onwards). Further, unlike the “Background” allegations, there is no significant lapse of time between the alleged incidents.

25I accept that the incidents from the end of December 2008 to June 10, 2009 and onwards were connected occurrences and involve an ongoing series of events surrounding the termination of the applicant’s training. Accordingly, I find the allegations made in the “Recent Discrimination” section of the narrative form part of a series of incidents that extends to and includes allegations within the one-year period prior to the filing of the Application. As a result, the Tribunal has jurisdiction to deal with these allegations.

CONCLUSION

26In summary, based on a close review of all the submissions and specifically the allegations detailed in the Application, I find the first portion of the applicant’s narrative does not constitute a series of incidents within the meaning of section 34(1)(b). Under the applicant’s heading of “Background”, the narrative clearly describes different circumstances with temporal gaps between the events. As previously noted, Tribunal decisions have found that temporal gaps between allegations may interrupt “a series of incidents”. The applicant has not met the high onus the Tribunal requires to show that the delay in the filing of an Application regarding these events was incurred in good faith. Accordingly, the Tribunal cannot deal with the allegations in the Application with respect to incidents from 2003 to December 2008 as these aspects of the Application do not meet the requirements of section 34(1) of the Code. However, I accept the applicant’s position that the events alleged from the end of December 2008 are a series of incidents connected to the events that are alleged to have occurred within one year of the filing of the Application.

27I am not seized of this matter.