HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Students Against Israeli Apartheid - Carleton on behalf of

Benjamin Saifer, Jessica Carpinone and Abla Abdelhadi

Applicant

-and-

Carleton University

Respondent

DECISION

Adjudicator: Michael Gottheil

Date: January 22, 2013

Citation: 2013 HRTO 112

Indexed as: SAIA v. Carleton University

APPEARANCES

Students Against Israeli )

Apartheid - Carleton on behalf of ) Yavar Hameed, Counsel

Benjamin Saifer, Jessica Carpinone )

and Abla Abdelhadi, Applicant )

Carleton University, Respondent ) Dan Palayew and

) Marie-Andrée Richard, Counsel

INTRODUCTION

[1] This is an Application brought on behalf of Benjamin Saifer, Jessica Carpinone and Abla Abdelhadi (the “claimants”) by the applicant, Students Against Israeli Apartheid - Carleton (“SAIA” or the “applicant”), under section 34(5) of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”). The Application alleges discrimination with respect to goods, services and facilities on the grounds of ancestry, ethnic origin and place of origin.

[2] The case involves events that took place in and around February 2009. The applicant, a student club at the respondent Carleton University, sought to publicize a campus event called “Israeli Apartheid Week” (IAW), through the posting of a poster which had an image of an Israeli helicopter gunship aiming a missile at a Palestinian child holding a teddy bear. The respondent removed the posters, and made a decision not to permit its posting on campus. The applicant alleges that the actions of the respondent were unfair, unjustified and discriminatory. It argues the poster was lawful and protected speech under section 13(2) of the Code, and by banning the poster, the respondent infringed the rights of the claimants and the applicant’s other members. SAIA argues that the respondent was motivated by an anti-Palestinian animus, and a preference for concerns expressed by Jewish students over the rights of Palestinian students and their supporters. Finally, the applicant alleges that an email from the respondent’s Provost circulated to the entire University community unfairly targeted the applicant and its members.

[4] For the reasons that follow, I find the applicant has not established a violation of the claimants’ rights under the Code, and the Application is accordingly dismissed.

BACKGROUND AND SCOPE

[6] In the Application as originally filed, SAIA alleged that the respondent’s President had demonstrated an anti-Palestinian, pro-Israel bias, both at previous institutions and at Carleton. This was said to inform an understanding of the events surrounding the removal of the poster and the circulation of the email. SAIA called no evidence with respect to these allegations. Accordingly, I have not considered these allegations, except to note that there is no direct evidence before me of the respondent having an anti-Palestinian bias.

[7] The essence of the applicant’s case is that it was denied a right of free expression – the right to promote IAW through a poster that was not contrary to the Code.

[8] Organizing and promoting IAW is and was political activity and an expression of political opinion. The applicant did not suggest otherwise. While the ability to engage in lawful political activity and free expression of political opinion are fundamental rights in Canadian society, and may be the subject of other laws or policies, they are not proscribed grounds of discrimination under the Code. To the extent the applicant argues that, as a human rights advocacy organization, it was denied a right of free political expression, as legitimate as that claim may be, it is outside the scope of the Tribunal’s jurisdiction.

[9] The applicant articulates its Code claim, as it must, as discriminatory treatment of three individual members of SAIA, on the basis of ancestry, ethnic origin and place of origin. In this regard, the applicant alleges that the respondent had an animus against the applicant and its members, because of their support of Palestinians and criticisms of Israel. This is a more narrow question, one that focuses on the actions, motivation and considerations of the respondent in deciding to remove and ban the poster.

[10] The hearing of this matter took place over six days. The initial two days dealt with preliminary issues, and witness testimony was heard on February 29, March 1, May 16 and May 17, 2012. By agreement of the parties, closing argument was presented in writing.

The Parties

[13] The claimants were all Carleton students and members of SAIA at the time of the incidents giving rise to this Application. Ms Abdelhadi is the only claimant who is Palestinian. The respondent concedes that Mr. Saifer and Ms Carpinone have standing to bring applications by virtue of their association with persons who are identified by their ancestry, ethnic origin and place of origin.

[14] The respondent is a post-secondary educational institution located in Ottawa that offers undergraduate and graduate programs. Carleton has an annual enrolment of approximately 25,000 students.

The Facts

[15] In early February 2009, SAIA began posting the poster which is at the centre of this Application throughout the Carleton campus.

[16] The poster was designed by Brazilian political cartoonist Carlos Latuff, and depicts an Israeli helicopter aiming a missile at a small Palestinian boy, sitting alone, holding a teddy bear. The imagery is stark and is made more so by its bright colours. SAIA had posted many of these posters throughout campus, on and off bulletin boards, through the tunnels that connect campus buildings, and in various buildings. Often, the posters were posted side by side. As Ms Caperauld, the respondent’s Director of Equity Services testified, “they were everywhere.” Her description was not challenged by the applicant.

[17] The respondent has a policy dealing with the posting of flyers, pamphlets and posters which provides that these materials may only be posted in designated areas (generally bulletin boards) and must be approved before posting. There are three types of designated areas/bulletin boards. Posters on official university bulletin boards must be approved by the University’s department of Communications. Posters on Faculty and Department bulletin boards must be authorized by the individual faculty or department. Posters for general use/student bulletin boards must be approved by the Carleton University Student’s Association (CUSA). The posting Policy provides specific procedures for obtaining approvals. It also provides that the Department of Equity Services is responsible for ensuring the content of posters are consistent with the respondent’s human rights policies, and that Equity Services may be consulted regarding questions or concerns over poster content. The Policy provides for an appeal process where a request for posting has been declined.

[18] The Policy further provides that the Department of Physical Plant and/or Campus Security will remove all posters in undesignated areas, or unapproved posters in designated areas.

[19] SAIA did not challenge the respondent’s evidence that the posters were posted in both undesignated and designated areas, and that it had not sought or obtained prior approval to post from any of the approval authorities.

[20] Ms Carpinone testified that, in her experience, posters were often posted in undesignated areas, or unapproved in designated areas. She asserted that the University of Ottawa enforced its posting Policy, but Carleton did not. She did not offer any support for this assertion other than to explain that, on an earlier occasion, SAIA posted a promotional flyer for a lecture, did not seek approval, and the flyer was not taken down.

[21] However, on cross-examination, Ms Carpinone did not disagree that the respondent’s policy and practice was to remove posters in undesignated areas, and unapproved posters on university-controlled bulletin boards. She agreed that the flyer in question was an advertisement for a joint SAIA/department event and was posted on the department’s bulletin board and that responsibility for monitoring such postings lay with the particular department.

[22] The respondent’s witnesses were consistent that Carleton’s policy was to remove posters in undesignated areas, and unapproved posters on university-controlled bulletin boards. I accept this evidence.

[23] The respondent removed the applicant’s posters. The applicant continued to post the posters.

[24] Once the respondent began removing the posters, the applicant approached CUSA about obtaining approval. On February 9, 2009, Britney Smythe, then President of CUSA, approached Equity Services, seeking advice on whether CUSA should approve the applicant’s poster. The respondent convened a meeting that day which included Ms Caperauld, Smita Bharadia, Equity Services Advisor, Ryan Flannigan, Director of Student Affairs, Len Boudreault, Director of Safety, and Ms Smythe. At that meeting, the respondent decided not to approve the poster and to meet with both SAIA and Hillel, a Jewish student group.

[26] Specifically, Equity Services had received a number of reports or complaints in and around the beginning of February 2009, including:

a complaint about swastikas painted on a wall near the student residence;
a complaint brought forward by Hillel, a Jewish student group, regarding Jewish students who were feeling threatened by the poster. It also reported an incident in which a student had been surrounded in the Galleria by approximately 20 people. The student was threatened and called names;
a complaint by a Jewish student that he was accosted by two individuals and ridiculed; and,
two individuals raised concerns about the safety of Jewish students, and threats being made. They reported an incident where comments were made by individuals at a table where the Israeli Awareness Committee was promoting its events, including Jewish students being called racists.

[28] Ms Smythe told Ms Carpinone on February 9 that the poster would not be approved, and directed her to Equity Services if she wanted an explanation.

[29] Ms Carpinone first spoke with Ms Bharadia, who explained the posters had been removed because they had not been approved and were in undesignated places. Ms Carpinone asked why the poster could not be approved now. Ms Bharadia said that in the context of the increase in “hate incidents”, the respondent made the decision not to approve the poster on the basis of safety concerns. Ms Bharadia told Ms Carpinone that the respondent was not suggesting that SAIA intended to incite hate, but “in human rights it is the impact that is measured.”

[30] Ms Carpinone then spoke with Ms Caperauld. Ms Caperauld explained the respondent’s concerns flowing from recent reported incidents of harassment. Ms Carpinone asked for details about the incidents. Ms Caperauld advised these were confidential, but the respondent was not suggesting that the applicant’s members were involved in any of the incidents. Ms Caperauld told Ms Carpinone that SAIA could appeal the decision or submit another poster for consideration (neither of which it ever did). In a follow up email responding to Ms Carpinone’s further request for explanation, Ms Caperauld wrote:

Equity Services’ review of all posters, pamphlets and display materials assesses, among other criteria, whether certain words or images could be seen to incite others to infringe rights protected in the Ontario Human Rights Code. Further, materials must not be insensitive to the norms of civil discourse in a free and democratic society. In reviewing the SAIA poster of an Israeli bomber shooting at a child with a teddy bear, Equity Services staff made the judgment that this poster offends both of these standards.

[31] Ms Carpinone was not satisfied and wrote another email seeking an explanation of how the poster was offensive to the respondent’s human rights policy or could incite others to violate the Code. Ms Caperauld did not reply.

[32] On February 12, 2009, the respondent’s Provost emailed the Carleton community as follows:

In recent days, several incidents have been brought to the University’s attention regarding behaviour that has been received by many as hurtful and discriminatory to some students on campus.

These actions, which are a rare phenomenon at Carleton University, appear to be related to the serious and tragic conflict that recently took place in the Middle East.

As members of the Carleton community, you are all aware that universities across Canada take extraordinary measures to ensure their campuses remain the cornerstone of free speech and open civil dialogue. In this regard Carleton University is both a champion and a leader. You need to look no further than this current academic year to know that Carleton and its students are capable of engaging in vigorous and sometimes contentious debate.

In protecting our community’s right to free speech, we must also be vigilant to ensure that our campus environment remains an entirely respectful one, where all students and other members of our community, regardless of their race, ethnic background or religion, can achieve academic success and personal growth. They should be able to take part in their everyday activities without regard for who they are as a person, their beliefs and their personal safety.

In stating this, I would like to make the following point very clear to all students, as well our campus community in general.

Carleton University, regardless of the circumstances, cannot and will not tolerate actions that infringe or contravene the Ontario Human Rights Code and Carleton’s own University Human Rights Policy and Procedures. Discrimination, harassment and intolerance which take the form of inappropriately challenging or questioning a person’s race or beliefs are actions that are contrary to the mission of Carleton University and put in peril the essence of the Canadian university experience

We understand that some events may be planned which may be related to serious and emotional world issues I would therefore ask everyone to take a few moments to become familiar with the Carleton University Human Rights Policy and Procedures and the Students Rights and Responsibilities Policy. Both documents play an important role in the University and provide us with the guidance towards civil and collegial behaviour. However they are also tools to be used to address inappropriate behaviours, including discrimination and harassment. Among other sanctions that may be applied under these policies, students can be withdrawn from their studies indefinitely. Note that under the authority of these policies all reported incidents of racial or religious intolerance will be investigated vigorously and addressed, regardless of the persons or groups involved.

All members of the University community ought to be assured that the University will thoroughly investigate every complaint of inappropriate behaviour, and will strictly monitor the use of University space to guard against discrimination, harassment and other activities in violation of relevant law and codes of conduct.

Above all else, universities are meant to be institutions that facilitate and encourage open academic discourse. Importantly, the imperative nature of these discussions go hand in hand with the responsibility to conduct ourselves in a manner that is respectful and that is consistent with the values of Canada.

Please join me and your fellow students in making every effort to ensure that Carleton’s campus remains a model of tolerance to which other institutions in Canada and abroad will continue to aspire.

[33] On February 24, 2009, Mr. Flannigan contacted the applicant to set up a meeting with the Provost, which was held on February 27, 2009.

[34] SAIA held IAW in March 2009 as planned, and has held the event on campus every year since.

ISSUES

[35] At the commencement of the hearing on the merits, the parties submitted an agreed statement of issues in dispute:

a. Does the SAIA poster constitute lawful free expression as defined by section 13(2) of the Ontario Human Rights Code?

b. Do the actions of the respondent in refusing to approve the SAIA poster violate Benjamin Saifer’s, Jessica Carpinone’s and Abla Adelhadi’s (“the claimants”) right to equal treatment without discrimination on the basis of ancestry, place of origin and/or ethnic origin in respect of their Palestinian membership (including Abla Abdelhadi) and/or their association with SAIA pursuant to section 12 of the Code?

c. Do the actions of the respondent in removing the SAIA poster violate the claimants’ right to equal treatment without discrimination on the basis of ancestry, place of origin and/or ethnic origin in respect of their Palestinian membership (including Abla Abdelhadi) and/or their association with SAIA pursuant to section 12 of the Code?

d. Does the February 12, 2009 email of Feridun Hamdullahpur violate the claimants’ right to equal treatment without discrimination on the basis of ancestry, place of origin and/or ethnic origin in respect of their Palestinian membership (including Abla Abdelhadi) and/or their association with SAIA pursuant to section 12 of the Code?

DECISION AND REASONS

Issue (a): Code section 13

[36] In its closing submissions, the respondent argued that issue (a) was irrelevant to this Application, not necessary to decide, and was therefore outside the Tribunal’s jurisdiction.

[37] The applicant argued that the issue is relevant and within the Tribunal’s jurisdiction. It says that because Ms Caperauld’s explanation of why the poster was being banned mentioned the Code, and used similar wording to that found in subsection 13(1), a determination as to whether the poster constitutes lawful and protected speech under subsection 13(2) sets an important “legal parameter”.

[38] I note that the Tribunal is not bound by the issues as framed by the parties. Section 43(3)(b)(i) of the Code gives the Tribunal the authority to make rules defining or narrowing the issues required to dispose of an Application and the Tribunal has done so in Rule 1.7(h).

[39] In any event, a review of section 13 of the Code demonstrates that subsection 13(2) is not a stand-alone provision. Rather, its operation is tied to and triggered by a subsection 13(1) inquiry. Subsection 13(2) may be raised as part of a defence to an alleged breach of subsection 13(1).

Announced intention to discriminate

13(1)A right under Part I is infringed by a person who publishes or displays before the public or causes the publication or display before the public of any notice, sign, symbol, emblem, or other similar representation that indicates the intention of the person to infringe a right under Part I or that is intended by the person to incite the infringement of a right under Part I.

Opinion

(2) Subsection (1) shall not interfere with freedom of expression of opinion.

[40] Notwithstanding Ms Caperauld’s email to Ms Carpinone, Carleton has not filed an Application alleging that any of the claimants or SAIA violated the Code or subsection 13(1) by posting the poster. In my view, the Legislature did not intend the Tribunal to use subsection 13(2) to declare a publication or display “protected” expression or opinion in the absence of a subsection 13(1) complaint.

Issues (b) and (c): The Respondent’s Decision to Remove the Posters, and its Refusal to Approve the Poster

[41] The applicant presented very little direct evidence to support its claim of differential treatment, and no direct evidence that ancestry, ethnic origin or place of origin were factors in the respondent’s decisions to remove or ban the posters. Its case rested primarily on challenging the respondent’s explanations. In this regard, the applicant put forward three general areas in which it said the respondent’s explanation was not credible, was merely a pretext, and that as a result, I should draw the inference that the its decisions were tainted by discrimination.

[42] First, the applicant sought to establish that in other cases where materials had been posted without authorization, or were deemed offensive, parties were contacted and consulted before any decision was made. It elicited an example where an off-campus bar had posted an advertisement which was considered offensive, and Equity Services contacted the bar to discuss the possibility of an alternative poster. However, the evidence was that Equity Services made the decision not to allow the poster before it contacted the bar. The respondent’s evidence was clear, and unshaken under lengthy cross-examination, that it does not consult individuals or organizations before removing unauthorized or unapproved posters, or removing posters that are considered offensive. There is no requirement to consult before making a decision to remove unauthorized posters in the respondent’s Policy, and there was no evidence that there was a practice of doing so. In fact, the applicant was treated in the same way as other organizations, in that it was offered the opportunity to submit an alternative poster for consideration and approval, something it chose not to do.

[43] Second, the applicant challenged whether the respondent had a good faith, serious concern about student safety following the reported complaints and incidents of harassment. Under cross-examination, Ms Caperauld and Ms Bharadia acknowledged that several of the reported incidents were not investigated. Ms Caperauld’s explanation was that Equity Services or Security will only conduct an investigation where there is a complaint from the individual who was subjected to the harassment. In several of the reported incidents, it was representatives of Hillel who had raised the concerns. Ms Caperauld said that Equity Services nonetheless had a responsibility to take reported incidents seriously.

[44] The applicant also sought to dismiss the legitimacy and seriousness of the concerns, suggesting that they were politically motivated. The respondent’s witnesses testified that they considered the possibility that there was a political aspect to the reports, but felt, given the high number of reports, combined in particular with the discovery of the swastika painted on a wall at a residence, there was a legitimate and necessary cause for concern.

[45] I am satisfied that the respondent had a good faith concern about student safety, and the possibility that the situation on campus might further deteriorate. Its evidence that the number of reported hate-reacted incidents was unprecedented in Carleton’s history was not challenged. The testimony of the respondent’s witnesses that they were genuinely concerned about what was being reported was not shaken under cross-examination. In my view, the reported incidents, if true, were sufficiently serious to raise concerns by the University’s Equity Services department, and warrant a response. While I make no comment on the course of action it took, I cannot find that those actions reveal a discriminatory animus, or would support an inference that its explanation was merely a pretext.

[46] Third, the applicant challenged the respondent on the connection between the reported incidents and heightened tension on campus, and the need to ban the poster. In this regard it says that there is no reasonable basis to conclude that the poster caused, or could cause individuals to act inappropriately or engage in harassing behaviour. As a result, it argues I should draw the inference that the respondent’s motives for banning the poster were discriminatory.

[47] Ms Carpinone had asked both Ms Bharadia and Ms Caperauld why the poster was being banned, and both had said that it “crossed the line.” Neither witness could clearly articulate what “the line” was, or how the poster had crossed it.

[48] Likewise, under cross-examination, Ms Caperauld was unable to explain what she meant when she wrote in her email to Ms Carpinone that the poster could incite others to violate rights under the Code, and that the poster offended norms of civil discourse. Mr. Flannigan was somewhat clearer in his evidence of why the poster was banned. He said that in the circumstances of the heightened tensions on campus, he was worried that the inflammatory nature of the poster might incite “young people to do stupid things.”

[49] I have considerable difficulty understanding Ms Caperauld’s evidence. The respondent’s position, which Ms Caperauld accepted, is that the poster was not unlawful, or in violation of Carleton’s human rights Policy. Yet, Ms Caperauld wrote that the poster offended the “standards” established by both the Code and Carleton’s Policy. Her evidence on this point was unclear and inconsistent. She was not able to explain the inconsistency.

[51] In the preceding days, over a hundred posters which, in Mr. Saifer’s own words were “provocative and meant to be provocative”; had been posted across the campus, sometimes side-by-side, lining walls, in tunnels, on and off bulletin boards. The posters had not been approved, and when they were removed, more were posted. The respondent considered the posters, in the particular circumstances, to have the potential to further enflame tensions, regardless of the applicant’s intent in displaying the posters.

[52] The respondent was faced with a decision as to whether or not to approve the poster. There was a sense of urgency to the unfolding events. It reacted with a decision to ban the poster.

[53] I make no finding as to whether the respondent could have, or ought to have made a different decision. Perhaps the respondent acted precipitously. However, based on all of the evidence, I find that the decision was not tainted by discrimination.

[54] In coming to this conclusion, I have also considered the evidence that the respondent did not ban or prevent the applicant from otherwise promoting its IAW event. In fact, Mr. Flannigan alerted the applicant to certain procedures that had to be followed in order to hold the event, and assisted the applicant in obtaining the requisite approvals.

[55] Before turning to the issue of the Provost’s email, I will address the applicant’s reference to “customer preference” cases. Customer preference in human rights jurisprudence refers to a line of cases which establishes the principle that a respondent cannot rely on the wishes of a third party as justification for its discriminatory actions. See: [Giguere v. Popeye Restaurant, 2008 HRTO 2](https://www.minicounsel.ca/hrto/2008/2); [Berry v. Manor Inn (1980), 1980 CanLII 3927 (NS HRC)](https://www.canlii.org/en/ns/nshrc/doc/1980/1980canlii3927/1980canlii3927.html), 1 CHRR D/152 (N.S. Bd. Inq.); [Mohammad v. Mariposa Stores Ltd. (1990), 1990 CanLII 12519 (BC HRT)](https://www.canlii.org/en/bc/bchrt/doc/1990/1990canlii12519/1990canlii12519.html), 14 CHRR D/215 (BCCHR). In this case, the applicant alleges that the respondent relied on the concerns of Jewish students, and gave preference to their wishes over the rights of the claimants.

[56] The evidence does not support the applicant’s assertion. Although the respondent did receive complaints about the poster from Jewish students and Hillel, the evidence, not shaken in cross-examination, was that the respondent decided to ban the poster because of its own assessment of the situation on campus, not because it was asked to do so by Hillel. There was no evidence that the respondent was motivated by a concern for a loss of business or retribution by a client group. The evidence establishes that for the respondent, the issue was not whether to accept the wishes of one group who wanted to post the poster and another who wanted the poster removed. As I have found, the issue in the mind of the respondent was whether the poster could lead to inflamed tensions and a safety risk.

Issue d: The February 12 email from the Provost

[57] The applicant argues that the email targeted its members. It says that its members were singled out, and threatened on the basis of ancestry, ethnic origin and place of origin. Both Mr. Saifer and Ms Carpinone testified they were shocked at the email, and said that a number of SAIA members felt afraid to participate in the group’s activities.

[58] The respondent argues that the email was not addressed to the applicant or its members. It says the email was a response to the situation on campus and the events at York. Rather than infringing the activities of the applicant, it was an effort to ensure that its event, along with a planned Hillel event, could proceed without incident, in a climate of respectful discourse.

[59] The applicant questioned why, if the email was meant to address complaints by Jewish students (as Mr. Flannigan admitted under cross-examination) it would not have been clear about its intent. In its closing submission it argued:

There is no reason why the Respondent should have euphemistically couched its language in seemingly neutral terms as the intent was quite plainly to refer to IAW events and was related in this regard to SAIA.

[61] However, I am satisfied that the purpose and intent of the email was, as Mr. Flannigan explained, to address what it perceived as a volatile, deteriorating situation, and to facilitate, rather than discourage, SAIA and Hillel events. I do not accept the applicant’s argument that the fact the email was framed in neutral terms suggests any nefarious motive on the part of the applicant, or undermines the credibility of the respondent’s explanation. Perhaps it would have been prudent for the respondent to have contacted the applicant in advance of the email being issued. I cannot however find on the evidence before me that it was meant to target, single out or attack the applicant or its members.

Order

[62] For the reasons set out above I find the applicant has not established that respondent breached the claimants’ rights under the Code. The Application is dismissed.

Dated at Toronto, this 22^nd day of January, 2013.

“Signed by”

Michael Gottheil

Executive Chair

Students Against Israeli Apartheid - Carleton v. Carleton University, 2013 HRTO 112

Case Summary

INTRODUCTION

[4] For the reasons that follow, I find the applicant has not established a violation of the claimants’ rights under the Code, and the Application is accordingly dismissed.

BACKGROUND AND SCOPE

[7] The essence of the applicant’s case is that it was denied a right of free expression – the right to promote IAW through a poster that was not contrary to the Code.

[10] The hearing of this matter took place over six days. The initial two days dealt with preliminary issues, and witness testimony was heard on February 29, March 1, May 16 and May 17, 2012. By agreement of the parties, closing argument was presented in writing.

[14] The respondent is a post-secondary educational institution located in Ottawa that offers undergraduate and graduate programs. Carleton has an annual enrolment of approximately 25,000 students.

[15] In early February 2009, SAIA began posting the poster which is at the centre of this Application throughout the Carleton campus.

[18] The Policy further provides that the Department of Physical Plant and/or Campus Security will remove all posters in undesignated areas, or unapproved posters in designated areas.

[19] SAIA did not challenge the respondent’s evidence that the posters were posted in both undesignated and designated areas, and that it had not sought or obtained prior approval to post from any of the approval authorities.

[22] The respondent’s witnesses were consistent that Carleton’s policy was to remove posters in undesignated areas, and unapproved posters on university-controlled bulletin boards. I accept this evidence.

[23] The respondent removed the applicant’s posters. The applicant continued to post the posters.

[26] Specifically, Equity Services had received a number of reports or complaints in and around the beginning of February 2009, including:

[28] Ms Smythe told Ms Carpinone on February 9 that the poster would not be approved, and directed her to Equity Services if she wanted an explanation.

[31] Ms Carpinone was not satisfied and wrote another email seeking an explanation of how the poster was offensive to the respondent’s human rights policy or could incite others to violate the Code. Ms Caperauld did not reply.

[32] On February 12, 2009, the respondent’s Provost emailed the Carleton community as follows:

[33] On February 24, 2009, Mr. Flannigan contacted the applicant to set up a meeting with the Provost, which was held on February 27, 2009.

[34] SAIA held IAW in March 2009 as planned, and has held the event on campus every year since.

ISSUES

[35] At the commencement of the hearing on the merits, the parties submitted an agreed statement of issues in dispute:

a. Does the SAIA poster constitute lawful free expression as defined by section 13(2) of the Ontario Human Rights Code?

DECISION AND REASONS

[36] In its closing submissions, the respondent argued that issue (a) was irrelevant to this Application, not necessary to decide, and was therefore outside the Tribunal’s jurisdiction.

[38] I note that the Tribunal is not bound by the issues as framed by the parties. Section 43(3)(b)(i) of the Code gives the Tribunal the authority to make rules defining or narrowing the issues required to dispose of an Application and the Tribunal has done so in Rule 1.7(h).

[39] In any event, a review of section 13 of the Code demonstrates that subsection 13(2) is not a stand-alone provision. Rather, its operation is tied to and triggered by a subsection 13(1) inquiry. Subsection 13(2) may be raised as part of a defence to an alleged breach of subsection 13(1).

Issues (b) and (c): The Respondent’s Decision to Remove the Posters, and its Refusal to Approve the Poster

[47] Ms Carpinone had asked both Ms Bharadia and Ms Caperauld why the poster was being banned, and both had said that it “crossed the line.” Neither witness could clearly articulate what “the line” was, or how the poster had crossed it.

[52] The respondent was faced with a decision as to whether or not to approve the poster. There was a sense of urgency to the unfolding events. It reacted with a decision to ban the poster.

[53] I make no finding as to whether the respondent could have, or ought to have made a different decision. Perhaps the respondent acted precipitously. However, based on all of the evidence, I find that the decision was not tainted by discrimination.

Issue d: The February 12 email from the Provost

[59] The applicant questioned why, if the email was meant to address complaints by Jewish students (as Mr. Flannigan admitted under cross-examination) it would not have been clear about its intent. In its closing submission it argued:

Order

[62] For the reasons set out above I find the applicant has not established that respondent breached the claimants’ rights under the Code. The Application is dismissed.

INTRODUCTION

[3] The respondent denies the allegations. It argues its actions were a justified response to safety concerns, and in any event, its actions and decisions were in no way related to a proscribed ground of discrimination under the Code.

[4] For the reasons that follow, I find the applicant has not established a violation of the claimants’ rights under the Code, and the Application is accordingly dismissed.

BACKGROUND AND SCOPE

[7] The essence of the applicant’s case is that it was denied a right of free expression – the right to promote IAW through a poster that was not contrary to the Code.

[10] The hearing of this matter took place over six days. The initial two days dealt with preliminary issues, and witness testimony was heard on February 29, March 1, May 16 and May 17, 2012. By agreement of the parties, closing argument was presented in writing.

[11] SAIA at Carleton was founded in the fall of 2008. Its mandate includes support for the rights of Palestinians, and calls for boycotts, divestment and sanctions against the State of Israel. There are SAIA groups at other universities, which share the same mission, but are independent.

[14] The respondent is a post-secondary educational institution located in Ottawa that offers undergraduate and graduate programs. Carleton has an annual enrolment of approximately 25,000 students.

[15] In early February 2009, SAIA began posting the poster which is at the centre of this Application throughout the Carleton campus.

[18] The Policy further provides that the Department of Physical Plant and/or Campus Security will remove all posters in undesignated areas, or unapproved posters in designated areas.

[19] SAIA did not challenge the respondent’s evidence that the posters were posted in both undesignated and designated areas, and that it had not sought or obtained prior approval to post from any of the approval authorities.

[22] The respondent’s witnesses were consistent that Carleton’s policy was to remove posters in undesignated areas, and unapproved posters on university-controlled bulletin boards. I accept this evidence.

[23] The respondent removed the applicant’s posters. The applicant continued to post the posters.

[25] The respondent’s witnesses, Ms Caperauld, Ms Bharadia and Mr. Flannigan, explained that the tensions on campus at the time, related to the Palestinian-Israeli conflict, and reported incidents of anti-Semitism, were unprecedented. The respondent was extremely concerned.

[26] Specifically, Equity Services had received a number of reports or complaints in and around the beginning of February 2009, including:

[28] Ms Smythe told Ms Carpinone on February 9 that the poster would not be approved, and directed her to Equity Services if she wanted an explanation.

[31] Ms Carpinone was not satisfied and wrote another email seeking an explanation of how the poster was offensive to the respondent’s human rights policy or could incite others to violate the Code. Ms Caperauld did not reply.

[32] On February 12, 2009, the respondent’s Provost emailed the Carleton community as follows:

[33] On February 24, 2009, Mr. Flannigan contacted the applicant to set up a meeting with the Provost, which was held on February 27, 2009.

[34] SAIA held IAW in March 2009 as planned, and has held the event on campus every year since.

ISSUES

[35] At the commencement of the hearing on the merits, the parties submitted an agreed statement of issues in dispute:

a. Does the SAIA poster constitute lawful free expression as defined by section 13(2) of the Ontario Human Rights Code?

DECISION AND REASONS

[36] In its closing submissions, the respondent argued that issue (a) was irrelevant to this Application, not necessary to decide, and was therefore outside the Tribunal’s jurisdiction.

[38] I note that the Tribunal is not bound by the issues as framed by the parties. Section 43(3)(b)(i) of the Code gives the Tribunal the authority to make rules defining or narrowing the issues required to dispose of an Application and the Tribunal has done so in Rule 1.7(h).

[39] In any event, a review of section 13 of the Code demonstrates that subsection 13(2) is not a stand-alone provision. Rather, its operation is tied to and triggered by a subsection 13(1) inquiry. Subsection 13(2) may be raised as part of a defence to an alleged breach of subsection 13(1).

Issues (b) and (c): The Respondent’s Decision to Remove the Posters, and its Refusal to Approve the Poster

[47] Ms Carpinone had asked both Ms Bharadia and Ms Caperauld why the poster was being banned, and both had said that it “crossed the line.” Neither witness could clearly articulate what “the line” was, or how the poster had crossed it.

[52] The respondent was faced with a decision as to whether or not to approve the poster. There was a sense of urgency to the unfolding events. It reacted with a decision to ban the poster.

[53] I make no finding as to whether the respondent could have, or ought to have made a different decision. Perhaps the respondent acted precipitously. However, based on all of the evidence, I find that the decision was not tainted by discrimination.

Issue d: The February 12 email from the Provost

[59] The applicant questioned why, if the email was meant to address complaints by Jewish students (as Mr. Flannigan admitted under cross-examination) it would not have been clear about its intent. In its closing submission it argued:

Order

[62] For the reasons set out above I find the applicant has not established that respondent breached the claimants’ rights under the Code. The Application is dismissed.