HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ricardo Harripaul
Applicant
-and-
University of Ontario Institute of Technology,
Dario Bonetta and Brian Campbell
Respondents
Decision
Adjudicator: Kathleen Martin
Indexed as: Harripaul v. University of Ontario Institute of Technology
WRITTEN SUBMISSIONS BY
Ricardo Harripaul, Applicant ) Shalini Konaur, Counsel
University of Ontario Institute of )
Technology, Dario Bonetta and ) Paula Rusak, Counsel
Brian Campbell, Respondents )
1This is an Application filed under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on August 11, 2011. The applicant alleges discrimination in services on the basis of race, ethnic origin and colour, as well as reprisal.
2A Response was filed, along with a Request For an Order During Proceedings arguing, among other things, that the Application should be dismissed in its entirety because it was filed beyond the time limit set out in section 34 of the Code. The respondents submit that the only particularized allegation of discrimination is a comment about “lab slaves” that occurred in late spring or early summer of 2008.
3The applicant filed a response to the Request stating that there were several incidents up to August 2010 which in their totality form the content of the Application. The applicant stated that he relies on the facts set out in the Application but did not elaborate on which incidents he relies on and for what purpose.
4On November 17, 2011, I issued a Case Assessment Direction (“CAD”) seeking further submissions in order to determine whether or not the Tribunal has jurisdiction over the Application. Because of the absence of particularity in the Application, I directed as follows:
Within 14 days of the date of this Case Assessment Direction, the applicant is directed to file with the Tribunal and copy to the respondents, particulars of each incident of discrimination that he relies on in the Application (including what happened; when it happened; who was involved and why it amounts to a violation of the Code by the respondents) along with any submissions and case law addressing whether any delay in filing the Application was incurred in good faith and no substantial prejudice will result to any person affected by delay;
Within 14 days of the date of the receipt of the applicant’s submissions, the respondents shall file with the Tribunal and copy to the applicant any response to the additional particulars and written submissions provided;
5Submissions have been received from the applicant and the respondents.
6I have determined that the Application should be dismissed on the basis of delay. My reasons follow.
Background
7The following summary is based on the material filed including the applicant’s submissions in response to the CAD.
8The Application arises out of the applicant’s attendance in a graduate program in applied bioscience at the respondent university. The individual respondents are the applicant’s supervisor in his program (Dr. Bonetta) until March 2010 and the dean of graduate students (Dr. Campbell).
9The applicant self identifies as Indo Caribbean. The applicant alleges that he was discriminated against on the basis of race, ethnic origin and colour. The applicant also alleges reprisal in his submissions although section 8 was not specifically pleaded in his original Application.
10The applicant submits that the Application is timely because it is based on a series of events commencing in September 2008 and continuing up to the date that he defended his thesis. The thesis was defended on August 8, 2010, which is just under 12 months before the Application was filed.
11The applicant alleges that the discrimination started in September 2008, when his supervisor, Dr. Bonetta, referred to the applicant and lab assistants as “lab slaves” on the chalk board. The applicant states that he erased the term and changed it to lab assistant since he felt the term was racist. Dr. Bonetta disagreed and reiterated that the students were “lab slaves”.
12The applicant states that following this incident, he was treated differently and negatively because he had made a complaint of discrimination. The applicant alleges the following particulars of differential and/or retaliatory treatment:
In the period September 2008 to March 2010, Dr. Bonetta did not provide the applicant with the same level of supervision that other students received in the program;
Dr. Bonetta’s general attitude toward the applicant was “more demeaning” because of his race, colour and ethnic origin (which the applicant states is based on his “instinctual feeling” from his interactions with Dr. Bonetta);
At various dates, the applicant was given unmanageable tasks (in September 2008 the applicant was given work which required equipment that was not made available to him; and in January 2009, the applicant was assigned a project by his defence committee which required access to a lab but Dr. Bonetta provided little supervision and did not provide keys or access to the lab);
In the period November 2008 to December 2008, Dr. Bonetta switched the applicant’s projects four to five times, which made it impossible to complete his work; and
On February 18, 2010, the applicant was called up to the Academic Integrity Committee on allegations which were eventually dropped. The applicant alleges that this was an attempt to derail his master’s program and “ties into the failure to address his discrimination complaints and to simply respond by trying to push him out of the university”.
13The applicant alleges that he attempted to have his allegations of discrimination investigated without success. In particular, he alleges:
On or about December 2008, the applicant informally spoke to Dr. Campbell about the “lab slave” comment and asked to have a new supervisor which was declined;
On August 31, 2009, the applicant made a formal complaint regarding “academic oppression and misconduct” to Dr. Campbell and other representatives of the university which included a reference that he had experienced, among other things, “racial academic profiling” while being in the program
On November 25, 2009, the applicant wrote another letter of complaint. In his three page letter, the applicant describes his frustrations in the program and on the last page comments that the attempts to aggravate him are academic lynching and “further adds credence to academic racial profiling and discrimination” (which other than being broadly asserted is not specifically linked to the frustrations described);
On February 26, 2010, the applicant made a further complaint to Dr. Campbell and the associate dean of science, about his frustration with his experience in the program. In the course of his complaint, the applicant reiterates his belief that he experienced discriminatory treatment and notes that he has formally complained to everyone to no avail alleging that no attempts to investigate and substantiate his allegations have been made and his supervisor has never been approached. The applicant states that this letter generated only a “surface” review of his complaint of discrimination with Dr. Bonetta being asked about the allegation and denying it.
From March 2010 to August 2010, the applicant approached the diversity officer who advised that she was not able to get involved.
14The applicant alleges that on or about March 15, 2010, Dr. Campbell advised the applicant that if he “retracted the discrimination claim he would have a chance of graduating”. The applicant states that he refused to withdraw his request and demanded a proper investigation into his complaints from the university through Dr. Campbell.
15The applicant states that his supervisor was finally changed in March 2010 and he defended his thesis on August 13, 2010.
16In his submissions, the applicant argues that the Application is timely. The applicant states that the last event of discrimination is the defence of his thesis on August 13, 2010, which ended his relationship with the respondents. The applicant states that the allegations summarized above in paragraph 12 to 15 should be viewed as a series of incidents thus bringing the Application within the scope of s. 34 (1).
17The applicant did not make an alternative submission that I conclude there was good faith. However, the applicant suggests that he had been threatened to keep quiet as set out in paragraph 14 above and thus had a legitimate concern that if he pressed the issue it would jeopardize his graduation.
18In their submissions, the respondents deny that the Application has been filed within 12 months of the last incident of alleged discrimination. The respondents dispute that the thesis defence is an incident of discrimination. The respondents also dispute that the allegations that the respondents failed to do a proper investigation can be viewed as breaches of the Code in and of themselves. The respondents state that, in any event, even if all of the alleged incidents are considered, they fall outside the 12-month period since in the respondents’ view, the incidents occurred from September 2008 to February 2010.
19With respect to the alleged threat, the respondents suggest that this allegation does not bear up to scrutiny given that the applicant had not previously disputed the respondents’ recitation of what transpired during the March 15th meeting. Further, the respondents state that this contention is not supported by the applicant’s own submissions of his continuing efforts to obtain a proper investigation.
20The respondents submit that the applicant has failed to provide a reasonable explanation for the delay. The respondents also state that this delay leads to prejudice given that some of the events occurred more than three years ago (i.e. September 2008), which will result in fading memories and loss of or inability to identify potential witnesses.
DECISION
21Section 34 of the Code provides:
(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.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection 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.
22Under s. 34, the Tribunal has no jurisdiction to deal with a complaint filed more than a year after the incident, or the last incident in a series, unless it is satisfied that the circumstances in subsection 34(2) exist.
23In this case, the first issue I must determine is what is the date of the last incident of alleged discrimination. The applicant based his case on the presumption that he had filed his application within the last incident in a series and thus the Application is timely under s. 34 (1).
24I do not find the applicant has alleged an incident of discrimination that occurred within the 12-month period prior to the filing of the Application.
25I do not find that the thesis defence is an incident of discrimination. The applicant has not alleged anything about the thesis defence which can be construed as discriminatory other than it was a marker for the end of his relationship with the respondents.
26The last specific incident identified in the applicant’s submissions in response to the CAD is the allegation from March 15, 2010, involving what is characterized as a “threat” by Dr. Campbell. This is 17 months before the filing of the Application.
27I note that the applicant does make the broad assertion that in the period March 2010 to August 2010, he continued to demand a proper investigation and no such investigation was done; and further that he approached the new diversity officer who stated that she was not able to get involved. But he failed to provide any details whatsoever about what requests he made, to whom, when they were made, and what response he received. Even if an alleged failure to investigate could be construed as an incident of discrimination in itself, the applicant has not provided any particulars of this allegation that would allow me to place it in the overall context and assess its timeliness. The applicant was specifically directed to provide particulars of each incident of discrimination. His failure to do so leads me to unable to discern any allegation of discrimination occurring within one year of the filing of the Application.
28Based on the applicant’s submissions, there were three specific complaints in 2009 and 2010 that he believes did not result in an adequate response. Even if these could form the basis of allegations of discrimination, the absence of further action after these events does not in itself amount to a fresh incident of discrimination.
29Given my finding that the last incident of discrimination occurred more than 12 months prior to the filing of the Application, the Application can only proceed if the applicant’s delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
30As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, at para. 24, “the Code requires an individual to act with all due diligence, and file their application within one year, when they seek to pursue a human rights claim.” When filing outside this one year time limit, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay.
31In this case, the applicant made no specific submissions that I should be satisfied that there is good faith although he did provide by way of explanation that he had been threatened to keep quiet by Dr. Campbell and therefore he had legitimate concerns that if he pressed the issue it would jeopardize his graduation.
32While I have considered this explanation, I have difficulty treating this as a reasonable explanation for delay. I agree with the respondent that in this particular case, the suggestion of having legitimate concerns is contradicted by the applicant’s other submissions as to how he acted during his last few months. The applicant states in his submissions that notwithstanding Dr. Campbell’s threat he “refused to withdraw his request and demanded a proper investigation into his complaints from the university through Dr. Campbell”. Further, the applicant alleges that he approached the diversity officer to discuss his issues, but she would not get involved. This does not support a finding that the applicant’s conduct to press his issues was affected by the alleged “threat”.
33In the circumstances, I do not find that the applicant has established that the delay in filing the Application was incurred in good faith within the meaning of section 34 (2).
34In view of my conclusions, it is not necessary for me to address the respondents’ submission about prejudice.
35In addition, it is unnecessary to address the respondents’ Request for a Summary Hearing.
36The Application is dismissed.
Dated at Toronto, this 30th day of March, 2012.
“Signed by”
Kathleen Martin
Vice-chair