Seifu Wondimagnehu v. Algonquin College, 2012 HRTO 276

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Seifu Wondimagnehu

Applicant

-and-

Algonquin College, Carl Gray, Barbara Foulds, Kim Tysick, Manon Brown and Theresa O’Brien

Respondents

decision

Adjudicator: Keith Brennenstuhl

Date: February 8, 2012

Citation: 2012 HRTO 276

Indexed as: Wondimagnehu v. Algonquin College

APPEARANCES

Seifu Wondimagnehu, Applicant ) Self-represented

Algonquin College, Carl Gray, Barbara Foulds, ) Chris Rutherford, Counsel Kim Tysick, Manon Brown and Theresa )

O’Brien, Respondents )

1This is an Application 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 the area of goods, services and facilities on the basis of race and sex.

2By Case Assessment Direction dated July 25, 2011, the Tribunal directed that a summary hearing be held by teleconference. It stated as follows at paragraphs 5:

The Tribunal’s Registrar will schedule a half-day summary hearing by teleconference. The applicant will proceed first during the summary hearing. The applicant shall make argument about why the Application should not be dismissed as having no reasonable prospect of success, and point to the evidence on which the applicant will prove a link between the respondent’s actions and the grounds cited.

ANALYSIS

Summary Hearings

3The summary hearing process is outlined in Rule 19A of the Tribunal’s Rules of Procedure. In a summary hearing the issue is whether an 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.

4In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8-10, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

Application to the Facts

5The applicant was a student in the Practical Nursing program at Algonquin College (the “College”). The program is a 2-year diploma program. The Ontario College of Nurses sets the minimum standards for the program and its graduates and upon graduation the program faculty must attest to the College of Nurses that the student has met the required standard.

6Students in the program are required to successfully complete two clinical rotations in level 3. There are clinical rotations in each of the 4 levels of the program and each level demands a higher level of skill, knowledge and performance. The applicant was successful in his first and second level clinical rotations.

7The first clinical rotation in level 3 occurred at the Ottawa Hospital in the psychiatric ward under the supervision of the personal respondent Theresa O’Brien. The second level 3 clinical rotation was at the same hospital in the orthopaedic unit under the supervision of the personal respondent Manon Brown. Both Ms. O’Brien and Ms. Brown rated the applicant’s performance in his respective rotations as unsatisfactory in several categories. The program’s Evaluation and Promotion Committee decided that a grade of F (failure) would be given to the applicant with respect to his level 3 rotations. The applicant appealed the Evaluation and Promotion Committee’s decision to the Academic Appeal Committee asking that it overturn the decision of the nursing department and allow him to continue to level 4 of the program. The five members of the Academic Appeal Committee unanimously upheld the decision of the nursing department in failing the applicant for the clinical course.

8The applicant alleges that he was set up for failure. He claims that there was a well-organized conspiracy headed up by the personal respondent Carl Grey, the clinical co-ordinator, who was aided by Ms. O’Brien and Ms. Brown, to get the applicant thrown out of the nursing program. He maintains that the Academic Appeal Committee played into the conspirators’ hands. The applicant contends that he was not wanted in the nursing program because he was male in a program dominated by women and because he is black.

9When he was asked what evidence he had to support his allegation of discrimination the applicant spoke to how hard he had worked during his clinical rotations and how he excelled in the nursing program prior to his level 3 rotations. He queried how it was that he was successful in another college and high school and not successful at the College.

10I find that there is no reasonable prospect that the applicant can prove discrimination on the basis of race and sex. The applicant was unable to point to anything specific that suggests that there was discrimination on the grounds specified by the applicant. At best, the applicant has his own feeling that he was treated unfairly because of race and sex. He was unable to point to any evidence beyond his own suspicions to support his allegations of discrimination.

11Even if I accepted the applicant’s allegations, there is no evidence to connect the applicant’s experience to the prohibited grounds of race and sex.

12Accordingly, there is no reasonable prospect that the Application will succeed and it is dismissed.