Kuffuor v. Carleton University, 2012 HRTO 913

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nana Kow Kuffuor

Applicant

-and-

Carleton University

Respondent

DECISION

Adjudicator: Leslie Reaume

Date: May 7, 2012

Citation: 2012 HRTO 913

Indexed as: Kuffuor v. Carleton University

Appearances

Nana Kow Kuffour, Applicant ) Self-represented

Applicant )

Carleton University, Respondent ) John Paul Zubec, Counsel

INTRODUCTION

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 on the basis of race, ancestry, ethnic origin, sex and reprisal or threat of reprisal.

2By Case Assessment Direction dated July 4, 2011, the Tribunal, on its own initiative, directed that the matter be scheduled for a Summary Hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure on the basis that the Application appears to relate to an academic disagreement rather than a Code violation. The applicant was directed to make argument as to why the Application should not be dismissed as having no reasonable prospect of success and to point to evidence which would support his allegations of discrimination.

3The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure. The issue in a summary hearing is whether the Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

4In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-10, the Tribunal observed that in some cases, the focus of the summary hearing will be on the legal analysis and whether the allegations could reasonably support a Code violation. In other cases, the focus will be on the applicant’s ability to point to evidence which is reasonably available which would demonstrate a link between the actions of the respondent and the prohibited grounds alleged by the applicant. The Tribunal also emphasized the importance of being attentive to the fact that in some cases of alleged discrimination, the respondent may be in possession of most or all of the evidence related to the applicant’s allegations and it may be appropriate to give the applicant the opportunity to acquire that evidence through disclosure and cross-examination of the respondent’s witnesses.

5With respect to the reprisal allegation, the burden is on the applicant to point to evidence from which the Tribunal can draw the inference that the respondents engaged in an intentional act of reprisal against the applicant for attempting to claim or enforce his rights under the Code. It is well established that the applicant is not required to demonstrate that he has a viable discrimination claim in order to make a successful claim for reprisal. In Noble v. York University, 2010 HRTO 878, the Tribunal set out the following principles to consider in a claim of reprisal:

Thus, in a complaint or application alleging reprisal, the following elements must be established:

a. An action taken against, or threat made to, the complainant;

b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and

c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

6In considering the applicant’s allegations, I have also taken into consideration the Tribunal’s comments in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17:

The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one’s Code rights.

ANALYSIS

7The parties were provided with an opportunity to make both written and oral submissions. There was considerable material filed prior to the hearing and material filed by the applicant following the hearing, all of which was considered in detail in determining whether the Application had no reasonable prospect of success.

8The applicant was enrolled in a Sociology course offered by the respondent through its Bridging Program. The program is designed to assist students who are not yet enrolled in the university in developing their capacity for the rigors of university courses. The allegations relate to a dispute between the applicant and the instructor of the course over course material related to gender studies. The applicant takes issue with the professor’s statements about the oppression of women by men and argues that the course materials and his interactions with his instructor breached his rights under the Code.

9The applicant alleges that he raised his concerns about the course material with the professor directly and was invited to engage in a dialogue about his questions and concerns. That dialogue is set out in a substantial number of emails. The applicant alleges that following the email dialogue, the instructor asked the applicant to step out of class and “attacked” him for his criticism of the instructor’s presentation of the course materials.

10The applicant also alleges discrimination in relation to his instructor’s critique of his draft assignment which he claims was motivated by bias on the part of the instructor. The allegations against the respondent, Carleton University, are related to the process followed when the applicant raised concerns about the instructor’s conduct and the critique of the draft assignment. The applicant also alleges that the respondent university violated his rights under the Code when he was instructed not to attend class so that the Director of Student Affairs could meet with the applicant and conduct a risk assessment.

11The respondent submits that the Application has no reasonable prospect of success because it relates to an academic disagreement and steps taken by the respondent to ensure safety on its campus. The respondent argues that there is no evidence which would be reasonably available to the applicant to link those events with the prohibited grounds cited in the Application.

12To the extent that the applicant has filed material which he alleges supports his position in the underlying academic debate about the oppression of women, it is important to note that this hearing is not about the validity of those arguments. The thrust of this hearing is to determine whether there is sufficient evidence of a connection between what the applicant alleges he experienced and the prohibited grounds cited in his Application in order to determine if the Application has no reasonable prospect of success.

13Initially there were a number of email exchanges between the applicant and his instructor through which the applicant expressed his view that the course materials were biased against men and did not include other cultural examples of female power and influence. During those email exchanges the applicant provided the instructor with material which in his view supported his position that the course material was biased, that women and men engage in violence against one another in relatively equal numbers, and that different forms of empowerment exist including the sexual power of women over men.

14The instructor denies treating the applicant differently as compared to any other student in the same circumstances. He alleges that the applicant made him feel uncomfortable as a result of the tone, content and frequency of the applicant’s communications. For example, the applicant sent the instructor eight emails the first day of their discussion. The applicant also described the instructor’s approach at one point as “complete nonsense”. While the instructor remained polite and appropriate throughout the email exchanges, the tone and direction of the discussion changed as the applicant shifted focus from the academic issue to criticisms of the instructor. Ultimately, the instructor excused himself from the email conversation with this message on February 15, 2011:

I think you are a bright and capable student, and my offer stands: I’ll discuss research, methodology, and writing with you. Furthermore, if you’re interested in developing any of your ideas into a research paper for this class – even if it contradicts ideas I present in class – I’m happy to help you. But I’m not comfortable with the direction this conversation has gone, so I’m excusing myself from it.

15The applicant alleges that when he returned to class the instructor asked to speak with the applicant outside the classroom, where the instructor is alleged to have made a “public display of his displeasure with my questioning the material, stating that if I question the material I question him”. The applicant described the instructor’s behaviour as a “blatant display of his authority over me…” which, in the applicant’s mind, is linked to his self-identification as a person of colour. The instructor denies that he attacked the applicant and alleges that the purpose of the discussion outside the classroom was to explain to the applicant the importance of encouraging discussion but avoiding attacks on individuals.

16The applicant describes the environment in the classroom as increasingly oppressive, although he does not cite any action on the part of the instructor that contributed to this experience.

17The only other issue which involves the instructor of the course relates to a draft assignment that the applicant submitted in March 2011. The instructor alleged that only four paragraphs out of the ten pages submitted by the applicant were the Applicant’s work, the balance being the ideas and work of third parties, including a six-page essay that was copied and pasted directly into his draft assignment. The instructor admits to cautioning the applicant about plagiarism; however, no steps were taken other than to give the applicant the opportunity to remedy the situation. Although the applicant’s submissions on this issue are difficult to understand, he appears to take the position that the assignment was in draft form and therefore the instructor’s criticism was inappropriate or perhaps premature, but in either event, motivated by bias.

18As a result of the applicant raising his concerns with the respondent, his draft work was submitted to a second, unidentified instructor for further review, who reached conclusions which were consistent with those of the course instructor.

19For reasons that are not clear, the applicant objected to the fact that the second professor was unknown to him. When the issue of the draft assignment could not be resolved to the applicant’s satisfaction, he was referred to a Director named Dr. Pamela Walker as well as the respondent’s Ombuds Service. The applicant also filed a formal complaint with the respondent’s Equity Director.

20The applicant alleges that the actions on the part of his instructor caused him considerable distress and interfered with his ability to learn. His Application references issues of institutional and systemic discrimination against people of colour which he submits are at the root of his experience with the respondents.

21The applicant disagreed with the material presented by his instructor. He was given an opportunity to engage in a dialogue about his alternative views. A number of the applicant’s emails are, in my view, accurately described as “strongly worded” and inappropriate, particularly when his focus shifts from the course materials to criticisms of his instructor. The applicant and the instructor have a different point of view about the purpose and tone of the meeting which took place outside the classroom following the email exchange, but there is no evidence which points to racism as an underlying factor in the instructor’s alleged conduct. The potential for plagiarism in the applicant’s draft assignment was first identified by the instructor but then confirmed by a second instructor to whom the applicant was unknown. I also note that an important part of the context is that the applicant was participating in a program designed to prepare him for the rigors of university work and he was not penalized for failing to fully understand the implications of plagiarism. I see no evidence in these interactions which could reasonably give rise to a link between the applicant’s race, ancestry, ethnic origin or sex.

22The applicant attributes the conduct of his instructor and the respondent to discrimination. However, the burden on the applicant is higher than proving that something adverse happened to him and that he is also a man and a person of colour. He must demonstrate that the adverse treatment occurred at least in part because he is a man and a person of colour. The Application and underlying materials as well as the submissions of the applicant fail to make this connection.

23The Tribunal has long accepted that it is often difficult to establish direct evidence given the subtle and nuanced ways in which racial discrimination manifests in our culture. The Tribunal is often called upon to draw reasonable inferences from circumstantial evidence which establishes that race is more likely than not one of the factors associated with the conduct in question. In Phipps v. Toronto Police Services Board, 2009 HRTO 1604 (“Phipps”), for example, the Tribunal drew the inference of racial discrimination from evidence that Mr. Phipps, a black man dressed in his postal uniform delivering mail door to door, nevertheless aroused the suspicions of a police officer who thought it possible that Mr. Phipps might be wearing the postal uniform as a ruse. Even after speaking with Mr. Phipps himself, and also with a neighbour as well as conducting a criminal records check, none of which raised any concerns, the officer continued his investigation of Mr. Phipps by inquiring about him with another letter carrier.

24The facts in the Phipps case are not the only kinds of facts which give rise to an inference of discrimination. However, the Phipps case demonstrates the necessity to look beyond the mere speculation of the applicant to the surrounding circumstances of the respondent’s actions. In this case, the applicant is unable to point to any evidence which would be reasonably available to him which would enable the Tribunal to draw the inference that the applicant was treated by the respondent in an adverse manner because of his race, ancestry, ethnic origin or sex.

Reprisal

25The applicant alleges that he was blocked from attending his class and asked to attend a meeting with the Director, Student Affairs, Ryan Flannagan. The respondent alleges that the nature and frequency of the applicant’s interactions with university officials and staff raised concerns about safety and workplace harassment. The respondent specifically alleges that Dr. Walker, who had never met the applicant in person, began to feel uncomfortable during a telephone conversation with the Applicant and referred the matter to Mr. Flannagan for review.

26The applicant included in his materials an email from Mr. Flannagan seeking a meeting with him to discuss what is described as “strongly worded” emails to university staff and his instructor. The text of the email is as follows:

Ko,

I have been speaking with a number of people here at the university regarding your email below. I understand Linda Capperauld, the Director of Equity Services will be sending you an email regarding the potential complaint you have brought forward. I also understand that some of your email correspondence with some university staff and particularly your course instructor has been strongly worded.

In my role as the Director of Student Affairs, I’m often called to follow up with students to determine what if any challenges they may be experiencing, and when required, enact steps or measures to protect the larger university community if there is any risk regarding a student’s behaviour or potential behaviour. In some instances, I can instruct student not to attend class or enter certain buildings.

Because of some of your recent correspondence and discussions with the Centre for Initiatives in Education and your instructor, I’m a (sic) instructing you not to attend your class tonight. I would like for us to meet in person tomorrow or Thursday so we can talk through your concerns and so that I may ask you questions. I anticipate that as a result of this discussion, you will be permitted to return to your class. However, until we have such a conversation, please do not attend your class this evening.

I have instructed Campus Safety to attend your class in advance of your class. If you attend they will direct you away until we are able to meet.

I’m sorry that I didn’t have the opportunity to follow up with you early today on this matter.

I look forward to hearing from you and I would very much appreciate your cooperation in this matter.

27The respondent filed an email written by Mr. Flannagan to the University Secretary and General Counsel dated April 14, 2011, which sets out the reasons he considered the applicant to be a low risk of harm from a physical perspective but a moderate to high risk of harm with respect to workplace harassment. He cites the applicant having written to several people across the university late the previous week with allegations of discrimination and allegations that Equity services was not addressing his concern. This allegation appears to have concerned Mr. Flannagan because he was able to confirm that the applicant had only just spoken with Equity services and that staff were in the process of following up on the applicant’s allegations. Mr. Flannagan also cites a call he received from the Director of the Centre for Initiatives in Education who advised him that the applicant had been writing emails that were verging on abuse and that he was making demands on the program that were unreasonable. Mr. Flannagan then spoke with the applicant’s instructor who reported the concerns about the applicant’s emails to him and the concerns about the draft assignment. Mr. Flannagan concludes the email with the opinion that there is no evidence to support a claim of discrimination and, on the whole, he is concerned about the escalation in the applicant’s complaints. Mr. Flannagan states in the email that he determined that it was prudent to ask the applicant not to attend class until a meeting could take place where a risk assessment could be conducted.

28Among other things, the reasons for Mr. Flannagan’s request for a meeting with the applicant included the observation that the applicant had taken the “extraordinary measure of filing a discrimination complaint against his instructor and the university”.

29Ultimately the applicant did not attend a meeting with Mr. Flannagan and did not return to class.

30The applicant is clearly unsatisfied with the response of the university to his allegations about his instructor, the course materials and the review of his draft assignment by a second unknown instructor. It is not disputed that he was raising concerns about what he perceived to be discrimination and that he had approached the Equity services to file a complaint.

31The one piece of evidence which might be construed as supportive of the applicant’s claim of reprisal is the email of Mr. Flannagan, who noted the applicant’s claims of oppression and his formal complaint to the respondent’s Equity Director as factors in his decision to meet with the applicant and to ask the applicant not to attend his class until the meeting could take place. In my view, this evidence alone would not be sufficient to establish reprisal.

32First, the act of inviting the applicant to a meeting to hear more about what was motivating his actions and the request that he not attend class until that meeting could take place are not, in my view, sufficient to establish that there was an action taken against the complainant. Second, the applicant is required to demonstrate that there was an intention on the part of the respondent to retaliate against the applicant for attempting to claim or enforce his rights.

33I recognize that it would create an almost impossible hurdle for the applicant to expect him to elicit a confession from Mr. Flannagan that his decision to prevent the applicant from attending class was an intentional act of reprisal against the applicant for complaining of oppression and discrimination to various people across the university. However, in the circumstances of this case, in order to establish sufficient evidence to permit an adjudicator to draw the appropriate inferences, the applicant would have to elicit from Mr. Flannagan evidence that his various reasons for meeting with the applicant at the time were pretextual. Those reasons included: the tone and frequency of the applicant’s emails to his instructor, his allegations that his instructor was lacking in impartiality in the face of bona fide concerns about plagiarism; his resistance to the opinion of the second instructor who reviewed the draft assignment; concerns from administrative staff who were finding it difficult to deal with the applicant because of the demands he was placing on their services; and the fact that he had escalated to the point of filing a complaint with Equity services against his instructor and the university.

34In my view, the fact that Mr. Flannagan may have factored in the applicant’s recent complaints of discrimination in his decision to meet and engage in a discussion with the applicant is insufficient evidence to establish reprisal. As a result, I find that there is no reasonable prospect that this aspect of the Application will succeed.

35Accordingly, the applicant’s allegations with respect to discrimination and reprisal are dismissed.