HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Emmanuel Agbalugo
Applicant
-and-
York University
Respondent
Decision
Adjudicator: Dale Hewat
Indexed as: Agbalugo v. York University
WRITTEN SUBMISSIONS
Emmanuel Agbalugo, Applicant
Self-represented
York University, Respondent
Joanna Rainbow, Counsel
1This is an Application filed June 30, 2009, under section 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The complaint which underlies the current Application was filed with the Ontario Human Rights Commission on June 22, 2007. In this complaint, the applicant, a former student, who self identifies as Black of Nigerian descent, alleged that he was discriminated against in the provision of services at York University because of colour, ethnic origin, family status, and marital status, place of origin, race, sex and sexual solicitation. The applicant also claims that he suffered continual reprisal and harassment because he refused sexual solicitations by some members of York University’s Faculty of Education, commencing with his application for admission into the Bachelor of Education Urban Diversity program (“Program”) as early as 2003. In the complaint, the applicant also alleges that his refusal to succumb to sexual advances by one of his Course Directors, Yonette Dey, caused him to not succeed in a teaching Practicum and him receiving an At Risk Letter for the Program. In addition, the applicant states that he was subject to racial discrimination commencing in September 2006 by a faculty member who was assigned to supervise his teaching Practicum and that a plot was in place to ensure that he failed the Practicum, resulting in his ultimate removal from the Program in the fall of 2006.
2After hearing full testimony from the applicant and one of the respondent’s witnesses, Yonette Dey, I directed the parties to file written submissions on whether the applicant has any reasonable prospect of success in proving his case.
Decision
3Having reviewed all of the testimony and the submissions from the parties I have determined that this Application has no reasonable prospect of success and should be dismissed. It should be noted that during the hearing there was evidence regarding the applicant’s medical status of depression and anxiety and evidence regarding the applicant’s marriage breakdown. In its submissions, the respondent argued that the applicant’s observations, conclusions and allegations were impaired and unreasonable in part as a result of his medical conditions and marital breakdown. The applicant claimed that none of these factors affected his decision-making, observations or the allegations he raised in this Application. In reaching my decision to dismiss this Application, it was not necessary for me to consider this aspect of the respondent’s submissions.
The Allegations
4The applicant claims that issues of sexual harassment first arose when he sought admission into the Program at York University for the 2004-2005 academic year. He was interviewed by Mr. Thomas Lewis, a teacher and volunteer interviewer for the University’s Admission Committee. The applicant claims that Mr. Lewis promised that he would be granted admission only if he would have sex with Marion Perry, then Director of the Office of Student Programs in the Faculty of Education. The applicant claimed that he was instructed by Mr. Lewis to bring flowers to Ms. Perry as the first step to “allure” her sexually and that Mr. Lewis continued to urge him to visit Ms. Perry. The applicant was not admitted into the Faculty of Education in 2004-2005 and believes that the decision to deny admission was directly related to his refusal to comply with Mr. Lewis’s and Ms. Perry’s alleged sexual demands. The applicant claimed that his subsequent admission into the Program was not done in good faith but rather to disgrace him and that once he was admitted to the Program he would resist anything that would connect him to sexual advances with any person in the Education Faculty.
5The following year the applicant was interviewed by another person and was admitted into the Program commencing September, 2005. As a Bachelor of Education Student, or “teacher candidate”, the applicant was placed in Daystrom Public and Junior School (“Daystrom”) between September and December 2005, as part of the Practicum component of the Program. One of the Course Directors for the Program’s 70 teacher candidates was Yonette Dey, and the applicant was one of the students in the group for whom she was responsible. The applicant alleges that Ms. Dey began to sexually harass him and linked her alleged actions to the failed efforts for sexual demands made by Mr. Lewis and Ms. Perry.
6The applicant also claims that he refused to succumb to Ms. Dey’s sexual advances in the fall of 2005 and that as soon as she discovered that he was married, that she continued to discriminate, harass and reprise against him on the basis of marital and family status during the remainder of the Program by engaging in the following actions:
(a) Forcing the applicant to sign a “Growth Plan” dated December 2, 2005;
(b) Removing the applicant from his Practicum at Daystrom, under the guise of a parent complaint related to a student at the school;
(c) Transferring the applicant to The Elms School (“Elms”) in early January 2006, where he would be supervised by Adjunct Professor Akaran Guyadin, described by the applicant as both Ms. Dey’s nephew, relative and possibly lover. The applicant claims that Mr. Guyadin was in a position to carry out Ms. Dey’s plot to discriminate on the basis of sex, marital status and family status;
(d) Marking him unfairly and influencing Mr. Guyadin to change one of his grades, and requiring doctors’ certificates for extensions for assignments;
(e) Colluding with her team partner Gini Dickie and Professor Solomon, the head of the Program, to force the applicant to sign an “At Risk” letter on March 21, 2006, regarding his continuing status in the Program;
(f) Colluding with Professor Solomon in the spring of 2006 to convince the applicant to exaggerate his medical health circumstances in a Petition to defer his studies in the Program; and
(g) Deliberately providing the applicant with a passing grade in the Program which allowed him to graduate in June 2006 and then notifying the applicant that the passing grade was made in error causing the applicant to have to return his graduation certificate.
(h) Describing Ms. Dey as a feminist and sympathizer with his ex-wife, the applicant alleged that Ms. Dey used other feminists and agents in a plot to have the applicant removed from the Program because the applicant refused Ms. Dey’s alleged sexual advances.
7The applicant also alleges the plot to remove him from the Program continued during the summer and fall of 2006 in his dealings with the Associate Dean of the Faculty of Education, Dr. Alice Pitt, and during his Practicum at the Tumpane School (“Tumpane”) in September 2006. Specifically, the applicant alleges that Michael Charles, the Practicum Coordinator, and Alison Gaymes, the Course Director, began a “regime of terror” and lies about his performance as a teacher candidate, resulting in his compulsory withdrawal from the Program by Dr. Pitt. In addition, the applicant claims that Mr. Charles was racist towards him when the applicant raised complaints about Ms. Gaymes and Dr. Pitt, to which Mr. Charles responded: “We know where you are coming from”. The applicant also alleged, for the first time during the hearing, that he thought he heard Mr. Charles call him a “stupid nigger” during their telephone conversation in the fall of 2006. He also alleged that there was a conspiracy to discriminate against him on the basis of race by colleagues of Ms. Dey working at Tumpane, who he described as her fellow “Black Ladies”, “Caribbean Ladies” and “Italian Sisters”.
8In total the applicant accuses at least 15 people, between 2004 and 2006, comprised of host teachers, adjunct professors at Elms and Tumpane, and faculty of engaging in wrongdoing against him and participating in a plot to remove him from the Program.
The Evidence
9The Program is a one-year intensive course. According to the Respondent’s records, the applicant failed to secure an offer for admission in 2004 because there were other applicants with stronger qualifications. However, the following year the applicant was successful and became a full-time registered student in the Program in September 2005.
10The selection of students for the Program is the responsibility of the Admissions Committee. In 2003 and 2004, Marion Perry was the Director of the Office of Student Programs, and in this role, she provided administrative support to the admissions process but was not a member of the Admissions Committee. Thomas Lewis was a teacher who served as a volunteer interviewer on the Admissions Committee. The applicant recalled that, during his first interview, Mr. Lewis advised him that he was selected for admission for the 2003-04 academic year. The applicant was suspicious of Mr. Lewis’s offer of admission after he received a letter stating that he had not been admitted to the Program. The applicant re-applied for the Program for the 2004-05 academic year and claimed that Mr. Lewis contacted him because he thought the applicant had completed the program. The applicant recalled that Mr. Lewis then continued to contact him on a number of occasions and provided assistance with preparing for an admissions interview. The applicant stated that he was only interviewed by Mr. Lewis. He claimed again that Mr. Lewis told him that the “deal was done” and that there would be no way that he would be denied admission and that he would call the applicant later to tell him what else to do to perfect admission. In that regard the applicant claimed that Mr. Lewis called him and told him to “go see Marion Perry” in her office to just say thank you to her. The applicant stated that he did not feel comfortable with Mr. Lewis’s request and he decided not to visit Marion Perry. Despite the applicant’s belief that he would be admitted, his application for admission was denied.
11When the applicant received the news that he was not admitted to the Program, he contacted Mr. Lewis and claimed that Mr. Lewis explained that the reason for the decision was because the applicant did not follow Mr. Lewis’s instructions to visit Ms. Perry. The applicant then did contact Ms. Perry over the phone and she advised him that the reason why he was not admitted was because those who were admitted had much more volunteer teaching experience. She also advised that applicant that she would place his name on a supplementary list. In the event that the applicant was not chosen from the list, Ms. Perry suggested that he try to make himself more competitive by enrolling in an English course.
12After this discussion with Ms. Perry, the applicant said he was contacted by Mr. Lewis, who was in hospital, and visited him a few times. The applicant claimed that Mr. Lewis asked him to take flowers and a note to Ms. Perry which he was reluctant to do because he was suspicious of Mr. Lewis’s motive. The applicant decided to see Ms. Perry and he recalled that when he visited her she was concerned and wanted to know about Mr. Lewis and the name of the hospital where he was a patient. He also said that she also offered to give the applicant a parking pass for the summer and claimed that she discussed admission to the Program. He also described Ms. Perry as a beautiful woman wearing a golden dress. After this visit, he claims that Mr. Lewis called him again asking him to visit Ms. Perry a number of times. The applicant claimed he didn’t know what to say to Ms. Perry and that the last time he spoke to Mr. Lewis, in August 2004, the applicant was told things like “love is blind”, “just go to her”, “she needs to see you”, “you are not required to say anything”, “She knows what to do and she will take you in”. The applicant admitted that he spoke with Ms. Perry on a number of occasions with respect to admissions questions but that he was unaware that she had no authority over admissions.
The Program
13A required element of the Program is the Practicum course. Success in this course is mandatory for a student to be eligible to graduate. Part of the course requires students to spend a number of weeks teaching a real class in a school, and during that teaching practice, the student must demonstrate that he/she has developed an appropriate level of professional skills.
14During the Practicum course, teacher candidates are mentored and coached by teachers in their placement school. The mentors and teachers, who serve as adjunct professors for the Program, assess the students’ performance. The teacher candidates are required to prepare lessons and submit them for review before the teaching block starts, and then teach one class of students for a prescribed block of time, ranging from one to three weeks in length.
15Following his admission to the program in the Fall of 2005, the applicant was given three opportunities to succeed in the Practicum Course. Initially he was placed at Daystrom Junior and Public School in the fall 2005 and continued at the Elms School in January 2006, but according to the Respondent, did not demonstrate the required standard of skills so he failed the course. The applicant’s third attempt at completing the Practicum component of the Program took place in September 2006 at the Tumpane School.
Daystrom Public School
16In early December 2005, the applicant was given a “Growth Plan” which outlined in detail some of the challenges he was having in the Program and what steps he needed to take in order to improve. The Growth Plan was developed by Ms. Dey and her team partner Gini Dickie, as a result of observations made by the applicant’s mentor teacher, adjunct professor, Nancy Payne and by Ms. Dey that the applicant was struggling in his Practicum. The applicant disputed that Ms. Payne believed that he was struggling and believed that comments about him in the Growth Plan were untrue. The applicant also insisted that the Growth Plan represented a failing grade in the Practicum and that words of the Growth Plan displayed malice. Ms. Dey explained that the Growth Plan was not an indicator of either a pass or fail but was documentation of where the applicant was progressing and in which areas he had challenges with a number of suggestions for improvement.
17The Growth Plan specified a number of goals for the applicant including components dealing with personal and professional, teaching skills and strategies, planning and preparing and classroom management. It also noted that Ms. Dey had spoken with the applicant in early November 2005 and had recommended that he visit the University Writing Centre and that he maintain communication with her as often as necessary. Ms. Dey also offered to review the applicant’s lesson plans before delivery, if he wanted. It was also contemplated that Ms. Dey would observe the applicant’s teaching at Daystrom before the end of January 2006 to determine if there had been sufficient improvement.
18The applicant also claimed that sometime in the fall, before he received the Growth Plan, that Ms. Dey called him into her office by leaving a note for him to come see her after class. He claimed that she noticed that he was not wearing a wedding ring and that she exposed her breasts to him and asked him if he wanted more. The applicant claimed that after this incident he tried to avoid Ms. Dey. However, both his evidence and that of Ms. Dey’s showed that the applicant sought out Ms. Dey on numerous occasions regarding assignments, requests for extensions and that he divulged personal information to her about his personal life. Ms. Dey denies all of his allegations regarding sexual advances and in fact said that she took steps to ensure that when she met with the applicant that another person was present in the office.
19Soon after the Growth Plan was shared with the applicant, Ms. Dey was advised by the Vice-Principal at Daystrom that a school parent, who knew the applicant personally, contacted the school and raised concerns about the applicant doing his Practicum teaching there. In order to deal with the parent’s request not to have the applicant placed at Daystrom, a decision was made to transfer the applicant to another school for the remainder of his Practicum.
20The applicant stated that the parent who complained about him teaching at Daystrom was acting as an “agent” of his wife, together with Ms. Dey, as “feminists” to sabotage him. He was also convinced that the Growth Plan, which was reviewed with him on December 8, 2005, but dated December 2, 2005, had been back-dated and purposely written as a result of both the parent complaint about him and of Ms. Dey’s continued sexual harassment of him. He alleged that Ms. Dey was insincere because he believed that she had developed a “private affair” with him but then had taken steps to fail him in the Practicum using the Growth Plan and move him to another school. To support his theory that Ms. Dey was trying to sabotage him, the applicant stated that he was contacted personally by the Vice-Principal of Daystrom, who left a voice mail message advising that he could stay at the school. The applicant also said that he met in person with the Vice-Principal over the complaint. By making reference to the Vice-Principal being supportive of him staying at Daystrom, the applicant tried to establish that Ms. Dey’s motive to transfer him was another move against him in retaliation for refusing her alleged sexual advances.
21Ms. Dey explained to the applicant that moving him to another school to complete his Practicum was not related to his performance but was in response to the request by the parent who contacted Daystrom. The respondent did not dispute that a voice message was left by the Vice-Principal at the applicant’s house around this time. However, what became clear in the applicant’s cross-examination, and I find as a matter of fact, was that the family of the parent who filed a complaint about the applicant’s presence at Daystrom had stayed with the applicant and his family in their home after immigrating to Canada and had listed the applicant’s home telephone number as their contact number. From Ms. Dey’s perspective, there would never have been contact between a school Vice-Principal or Principal and a teacher candidate as all information would be communicated either through the Program Director or Adjunct Professor.
22It was also around this time in December 2005 that the applicant shared his health issues with Ms. Dey and provided a Doctor’s note dated December 14, 2005. In light of the medical note, the applicant was granted extensions on assignments that he requested at the time.
The Elms School
23While the applicant did not wish to transfer to another school, a Practicum opening became available at Elms and the applicant was transferred there in mid-January 2006. The adjunct professor assigned to him at Elms was Akaran Guyadin. The applicant was convinced that the reason he was sent to Elms was as a reprisal by Ms. Dey for his refusal to accept her sexual advances and in retaliation for the parent complaint. He also believed that Mr. Guyadin was either Ms. Dey’s nephew or a relative. He reached this conclusion because he was under the apprehension that Ms. Dey and Mr. Guyadin grew up together in the same community in Guyana. He claimed that Mr. Guyadin told him that he knew of Ms. Dey as a child, who was “rough and tough” and therefore the applicant assumed that they were close and thus related. The applicant also tried, unsuccessfully, to get Ms. Dey to admit that she and Mr. Guyadin were lovers and insisted that Mr. Guyadin was being used as part of Ms. Dey’s plot to expel him from the Program. Ms. Dey denied that she in any way was related to Mr. Guyadin or that they had any relationship and testified that she had no prior knowledge of Mr. Guyadin beyond working with him in her capacity as Director of the Program.
24During his time at Elms, the applicant continued to have difficulty in performing the required skills as a teacher candidate in the Practicum. The applicant had many email exchanges with Ms. Dey regarding assignments and requests for extensions and he sought out her advice.
25He also referred to an email with the subject line “Meeting” that Ms. Dey sent to him on January 24, 2006. In the note, Ms. Dey asked the applicant how he was doing and asked “Can we tomorrow at 12:00?”. The applicant believed that she purposely omitted the words “make love” in the note and referred to it as a love note. Ms. Dey, on the other hand, explained that she regularly left notes for her students requesting that they come to see her regarding various issues and that she would meet with students in her office that she shared with her Team Partner, Gini Dickie.
26In consultation with Mr. Guyadin and the applicant’s mentor teacher, the applicant was provided with an “At Risk” letter dated March 21, 2006, in which the Urban Diversity Team stated that they believed the applicant’s illness had negatively impacted his year such that he had not demonstrated the teaching skills and competencies of the Program. It was recommended that the applicant voluntarily withdraw from the Practicum component of the Program and petition for re-admission for the 2006-07 school year. He was also given the option to continue with his other course work if he remained in good standing.
27The At Risk letter summarized that in December 2005, the applicant shared his health issues with Ms. Dey after requesting extensions on all of his assignments. Ms. Dey requested that the applicant supply doctor’s notes to support his requests for extensions and when he provided such notes the extensions were granted. In early January 2006, the Urban Diversity Team met to discuss concerns about the applicant’s progress and ill health and it was decided that Ms. Dey would discuss with him, options to extend or defer the Practicum portion of the Program. When faced with these options, the applicant ultimately decided that it would be financially “suicidal” for him to delay the Practicum.
28While it was acknowledged that the applicant cared about the students, concerns about the applicant’s performance were detailed in the At Risk letter, including problems with handing in assignments on time despite extensions, absences from class, difficulty in engaging students, delivery of appropriate level of materials and unsatisfactory lesson plans.
29The applicant did not agree with the contents of the At Risk letter and stated that he was coerced into signing it. He also raised concerns about Ms. Dey consulting with Gini Dickie and Professor Solomon in preparing the At Risk Letter. He believed that he and Ms. Dey were in a “private relationship” because Ms. Dey always told him that she wanted to help him; therefore he questioned her motives of including and consulting with other members of the Urban Diversity Team.
30He also complained that he had been unfairly assessed by Ms. Dey on March 7, 2006. In that instance, Ms. Dey had advised the applicant and other students that she would be visiting their classrooms to observe. The applicant was under the apprehension that Ms. Dey attended his class as an informal visit and was surprised when she followed up with written comments about his teaching in an email. The applicant claimed that Ms. Dey treated her visit as “official” and then used it as another tactic to have the applicant expelled from the Program.
31The applicant also claimed that Mr. Guyadin supervised him on March 16, 2006, and was under the impression that Mr. Guyadin’s evaluation was positive and therefore was surprised when he received the At Risk letter on March 21, 2006.
32Following the At Risk letter, the applicant did not continue with his Practicum at Elms and instead continued with his course work. He also met with Professor Solomon and Ms. Dey, who tried to work with him to prepare Petition materials. The applicant did not file a Petition at that time and claimed that he was being forced to exaggerate his health condition by Professor Solomon and by Ms. Dey and was being commanded on what to write in the petition. The email exchanges between Professor Solomon and the applicant do show however, that the applicant was seeking guidance on what to include in a Petition letter and that Professor Solomon suggested that more focus on the applicant’s health status might prove to be more convincing to a Petition committee in terms of assessing the applicant’s case.
Graduation Certificate
33According to Ms. Dey, due to an administrative oversight on her part, the applicant was given a passing grade for his Practicum and thus became eligible to graduate in June 2006. She explained that it wasn’t until she saw the applicant walk across the stage at Graduation on June 14, 2006 that she realized that she must have made a clerical error when she input grades into the computer system, resulting in the applicant receiving a passing grade for the Practicum even though he had not completed the Practicum placement.
34While the applicant was well aware that he did not complete the Practicum portion of the Program, he testified that he sought confirmation of his graduating from the Registrar’s Office instead of approaching either Ms. Dey or any other faculty member.
35Within a week of Graduation, the applicant met with Alice Pitt, the Associate Dean of the Faculty of Education. Dr. Pitt advised the applicant that the Bachelor of Education Degree that he received was in error.
36In his testimony, the applicant disagreed that Dr. Pitt gave him another chance to complete his Practicum or that she had investigated on his behalf. He also disputed that he was offered a deferral or that she said anything about his health and the need for him to be well so that he could continue. He took the position that in dealing with him, Dr. Pitt was protecting her faculty and the University rather than responding to his concerns.
37The documentary evidence showed that after his meeting with Dr. Pitt, the applicant wrote an email to her on June 22, 2006, which indicated that Ms. Dey had imposed a relationship on him and that she had created a trap to end his career. He made reference to the At Risk letter of March 21, 2006, and how Ms. Dey was the principal executor of “what resembles a plot” against him.
38Dr. Pitt then sent a letter to the applicant on June 30, 2006, in which she apologized for the error in issuing him a Degree. Instead she offered him a deferral of the Practicum portion of the Program in exchange for him returning the Degree Certificate. In the June 30, 2006 letter, Dr. Pitt also explained that in deciding to make the offer of deferral she had taken into account the December 2, 2005 Growth Plan letter and the March 21, 2006 At Risk letter and the circumstances of the applicant’s transfer to Elms, his health and personal issues.
39The applicant sent another email to Dr. Pitt on July 28, 2006, and appealed to her to allow him to keep his Degree certificate on the basis that Ms. Dey had engaged in a plot against him through a “systemic way of torturing, abusing and confusing me so as to frustrate me or have me expelled from the program.” He alleged that Ms. Dey purposely entered his name for graduation and called him many times a few days before graduation, sometimes leaving messages for him in order to protect herself from trouble. From his perspective, the applicant told Dr. Pitt that in asking him to return the certificate, Ms. Dey had “left open the plot for others to complete”.
40Ultimately the applicant did return the Degree certificate to Dr. Pitt. He was offered a Practicum placement at Tumpane Public School from September 18, 2006 to October 20, 2006 under Alison Gaymes, the Course Director for that school. Detailed requirements and expectations for the applicant regarding the Practicum placement were set out in a letter dated September 15, 2006 by the Practicum Coordinator, Michael Charles, which the applicant denied receiving.
Tumpane Public School
41The applicant testified that from the moment that Alison Gaymes visited the school on September 19, 2006, his host teacher began to treat him differently and that changes were made in terms of number of days he was teaching and who would be observing him teaching. The applicant claimed that instead of his host teacher observing him on September 28, 2006, Alison Gaymes arrived at the school to observe his classroom. The applicant stated that he felt that he was under a regime of terror by Ms. Gaymes and that he believed she was an agent of Ms. Dey. In a letter dated October 4, 2006 to Dr. Pitt, in describing when Ms. Gaymes arrived to supervise him, the applicant commented that he nearly fainted, that he felt like he was facing an execution squad and that he suspected foul play. He also recalled that it seemed to him that the Adjunct Professor was furious with him and that she did not pay much attention to him. In addition he described how he met with Ms. Gaymes after her observation on September 28, 2006, and how he was surprised with the information that she shared with him that the host teacher had given him a low grade. During his testimony, however, the applicant denied that she met with him to review his work after she observed him in the classroom on September 28, 2006.
42The applicant also described in his October 4, 2006 letter to Dr. Pitt that following a meeting with Ms. Gaymes on October 28, 2006, he contacted Michael Charles in an attempt to arrange a meeting with Dr. Pitt. The contents of his letter show that there was some confusion from the applicant about when Dr. Pitt, Michael Charles or Ms. Gaymes would be available to meet with him as each seemed to be available on different days. In his examination-in-chief, the applicant then noted that when he asked Mr. Charles if he could make an appointment to see them, Mr. Charles made the comment “we know where you are coming from”, which the applicant alleged was racist. During his cross-examination, when asked about the phrase “we know where you are coming from” the applicant also stated that he thought he heard Mr. Charles utter the words “stupid nigger” under his breath. When asked again about this allegation, the applicant admitted that he wasn’t sure what he heard and had no explanation for why he had not raised this claim against Mr. Charles in his original complaint to the Human Rights Commission or even prior to this hearing when the applicant was given the opportunity to file further particulars in 2010 to substantiate his Application.
43The applicant did not pass his Practicum at Tumpane and was withdrawn from the Program by Dr. Pitt on the basis that he could not succeed in one of its mandatory requirements. The applicant petitioned for relief but was unsuccessful. The Petitions Committee, in its decision letter dated October 24, 2007, concluded that there was sufficient evidence that the complainant had been clearly guided, that expectations had been clearly outlined, and that by way of follow-up there had been appropriate observation of him in various school contexts. The Committee noted that the applicant consistently had difficulties in his placements, from punctuality to creating age-appropriate lesson plans, and that it did not appear likely that a third attempt at a Practicum would be successful. Subsequently, the applicant appealed the Petitions Committee decision but was not successful on appeal.
Credibility
44In assessing credibility in this case, I have taken into account the usual tests as outlined in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), which include considering a witness’ opportunities for knowledge, powers of observation, judgement and memory and ability to describe clearly what he has seen and heard. In addition, in cases of conflicting evidence, it is important to consider what story makes the most reasonable sense in terms of consistency and in the context of all of the circumstances. Other factors the Tribunal has applies as relevant in terms of assessing credibility include corroborative evidence from other witnesses, and the extent to which witnesses may have an interest in the outcome of a case, or have a self-interest in testifying for one of the other parties: Shah v. George Brown College, 2009 HRTO 920.
Analysis
45Dabic v. Windsor Police Services, 2010 HRTO 1994, dealt with the tests of reasonable prospect of success in the context of a Summary Hearing within the meaning of Rule 19A.1 of the Code. In my view the tests for reasonable prospect of success equally apply in this case. After hearing the applicant’s evidence and the evidence of Ms. Dey, it became questionable whether the applicant would be able to establish a link to a prohibited ground under the Code and his allegations.
46In Dabic, at paragraphs 8 and 9, the Tribunal noted that the test for reasonable prospect of success may include an analysis, in some cases, of whether what the applicant alleges may be reasonably considered to amount to a Code violation. In other cases, the focus 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 have been violated based on the evidence the applicant has or that is reasonably available.
47In addition, as the Tribunal noted in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389: “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.” Put another way, there must be a factual foundation for allegations made.
48The respondent submitted that taking the applicant’s evidence as a whole, there is no reasonable prospect that it supports the accusations of wrongdoing and conspiracy. The respondent further argued that the applicant’s oral testimony was selective, self-serving and consisted of far-fetched interpretations of actions of his evaluators and others who were trying to mentor and assist him.
49Having assessed the applicant’s evidence and the evidence of Ms. Dey, I have concluded that the applicant’s testimony cannot be relied upon. In totality, the applicant’s evidence and testimony showed inconsistencies and was not in accordance with the preponderance of probabilities. Beginning with the applicant’s allegations of sexual solicitation by Mr. Thomas Lewis and Ms. Perry, it became apparent that the applicant’s description of his interactions with them did not have any reasonable connection or plausibility to his theory set out in his original complaint. In his complaint, the applicant asserted that Mr. Thomas demanded that the applicant have sex with Ms. Perry and that because he refused to succumb to this demand they both refused him admission into the Program. In his testimony, the applicant talked about how he was asked by Mr. Lewis to take a note and flowers to Ms. Perry and how he had visited her office talked about admission. While the applicant apparently recalled details of the dress that Ms. Perry was wearing and that she spoke with him about the Program and may have offered him a parking pass for the summer, the applicant was not able to provide any meaningful details of his encounters with Ms. Perry or Mr. Lewis to show any reasonable connection to an allegation of sexual solicitation. The quotes that the applicant attributed to Mr. Lewis as showing that he urged the applicant to visit Ms. Perry and that she wanted a sexual relationship with him, do not suggest that to be the case. Even the quote, “love is blind” that the applicant claimed was mentioned by Mr. Lewis, is not believable when taken in the context of Mr. Lewis’s role as a member of the Program’s Interview Committee. The other quotes mentioned by the applicant and referenced in paragraph 12 above, seem to more reasonably suggest that Mr. Lewis may have been urging the applicant to speak with Ms. Perry in order to gain a better understanding of why he was denied admission.
50Similar to the applicant’s account of his dealings with Mr. Lewis and Ms. Perry not being consistent with any sexual solicitation having taken place, the applicant’s recollection of sexual solicitation by Ms. Dey was also not believable. First, the applicant’s allegation that Ms. Dey was acting as an agent of Mr. Thomas and Ms. Perry was not realistic or convincing. Secondly, the applicant’s testimony was more consistent with Ms. Dey trying to assist him with his Practicum assignments, like she did with all teacher candidates. Both the documentary evidence in the December 2, 2005 Growth Plan and Ms. Dey’s testimony showed that there were concerns with the applicant’s progress and that Ms. Dey had suggested that he seek help from the University’s Writing Centre and that he communicate with her as needed for assistance. In contrast, the applicant was not able to provide details of dates and meetings to support the allegation of Ms. Dey exposing her breasts to him. He was also not able to provide details about allegations of sexual harassment and luring that he claimed took place, except his reference to two notes in which Ms. Dey requested him to come see her at her office. The applicant’s interpretation of these notes was also not believable, particularly in the context of Ms. Dey acting in her position as the Course Director regularly meeting with students in an office she shared with Gini Dickie. In particular, I can find no reasonable basis to support the applicant’s suggestion that Ms. Dey’s note in January 2006 which contained a typographical error was meant to include the words “make love”. Furthermore, while the applicant stated that he tried to stay away from Ms. Dey, the email correspondence from December 2005 through to March 2006 shows that there was frequent communication between the two regarding his Practicum work and the granting by Ms. Dey of extensions for assignments.
51The applicant’s allegations regarding Ms. Dey’s plot to rid him from the Program because he refused to succumb to her sexual advances and because she discovered he was married or that she was an agent of his wife also do not advance his case. The testimony of Ms. Dey and the At Risk letter of March 21, 2006 provide a reasonable explanation for why the applicant was transferred to the Elms School, citing that the transfer was due to the parent complaint raised about the applicant’s presence at Daystrom and was not related to his performance as a teacher candidate. While it is possible that the applicant may have spoken with the Vice-Principal about his desire to stay at Daystrom, given the structure and supervision of teacher candidates in a Practicum, communication and decision-making about their Practicum component clearly comes from the assigned Course Director or Adjunct Professor. It also makes sense that the phone message left at the applicant’s home by the Vice-Principal saying that “he could stay” was intended for the parent to confirm that the child would remain at Daystrom since it was clear that the applicant’s home number was also the contact number given to the school for the parents who had complained about the applicant.
52Similarly, I reject the applicant’s allegation that the December 2, 2005 Growth Plan was created either because he refused sexual advances by Ms. Dey, or in retaliation by Ms. Dey because she discovered that the applicant was married, or because of the parent complaint. First, there is no credible evidence of any sexual advances by Ms. Dey or that she took any action against him because she discovered he was married. Accordingly, I find that there is no evidentiary basis to suggest that such factors influenced the development of the Growth Plan. Second, there is no real link that the applicant has established between the parent complaint and the contents of the Growth Plan document. Although the applicant described the wording of the Growth Plan as malicious, the actual words and comments contained in the document address, in a neutral tone, specific struggles or problems that the applicant was having in the Practicum and provides a number of suggestions for how to overcome problems and improve performance. The Growth Plan does not represent a grade of pass or fail, but is simply a review of the applicant’s work and challenges followed by a plan for steps to improve. It is also very clear in the Growth Plan that Ms. Dey would be available to assist the applicant and would continue to monitor his progress along with his Adjunct Professor and mentor teachers.
53The applicant’s assumption that Ms. Dey purposely sent him to the Elms School in order to carry out what he called her plot to rid him from the Program by using Mr. Guyadin to assist her was also unconvincing. The applicant’s testimony that Mr. Guyadin was her nephew, a relation or questioning that he might be her lover was inconsistent and irrational. At first, he alleged that Mr. Guyadin was Ms. Dey’s nephew, and then insisted that they were related because he believed Mr. Guyadin told him that he knew Ms. Dey when she was a child. Furthermore, in his submissions the applicant stated that even if he could not prove that they were lovers, he reasoned that if they knew each other growing up, then they must have been close and therefore related to each other. Even without Ms. Dey’s testimony denying that she had any prior knowledge or relation to Mr. Guyadin, the applicant’s theory about Mr. Guyadin is not plausible.
54Having rejected the majority of the applicant’s allegations as unfounded because they lack factual credibility and having found that there is no reasonable prospect that the applicant can connect the surrounding events he has raised in relation to Mr. Lewis, Ms. Perry, Ms. Dey and Mr. Guyadin to a Code violation with respect to his experience as a student applying to the Program or when he was a teacher candidate in the Program, I have assessed the remaining allegations as unfounded regarding the continuation of Ms. Dey’s alleged “plot” to rid the applicant from the Program. Reviewing the evidence of Ms. Dey regarding the applicant’s continued difficulties in completing his Practicum at the Elms School, the March 21, 2006 At Risk letter, the email exchanges between Professor Solomon, Ms. Dey and the applicant offering him assistance in filing a petition, and the explanation for the computer error listing the applicant for graduation, I cannot find any basis to find the applicant’s story credible. Similarly, based on my review of the applicant’s testimony regarding his interaction with Dr. Pitt, it is evident that the despite the applicant’s denials, he was offered reasonable options to either defer his Practicum or to be given a new Practicum opportunity at the Tumpane School in September 2006, which he accepted.
55The applicant’s testimony alleging that he was discriminated on the basis of race was also not credible. In his original complaint and supporting documents he alleged that Michael Charles commented to him that “we know where you are coming from” in a conversation in which the applicant was complaining about the difficulty or frustration in scheduling a time to meet with Dr. Pitt and, Mr. Charles and Ms. Gaymes. This conversation took place after the applicant had started his new Practicum at the Tumpane School and was told by Ms. Gaymes that his mentor teacher had given him a low mark and that there were concerns about his ability to pass the Practicum. The applicant was also upset at how his schedule at the Tumpane School was organized and that Ms. Gaymes was also observing his teaching. On the basis of the applicant’s testimony, it makes sense that he was frustrated and possibly confused about how his Practicum was progressing at Tumpane, and that he desperately wanted to defend himself against evaluations that he believed to be false. In this context, I find that Mr. Charles’ response “we know where you are coming from”, even assuming that it was made, was more reasonably intended as a sign of empathy for the applicant’s frustration using a common phrase to explain that while one does not necessarily agree with a position, one can understand a complainant’s plight or frustration.
56In his cross-examination testimony the applicant said for the first time that he thought he heard Mr. Charles say something like “stupid nigger” under his breath but then said he wasn’t sure what he heard. He also remarked that even if Mr. Charles didn’t say that remark, the phrase “we know where you are coming from” is racist. Not only was the applicant’s testimony inconsistent, the claim that Mr. Charles used the words “stupid nigger” had never been mentioned before despite opportunities for the applicant to provide detailed disclosure before the hearing began. One would have expected that had such a clearly racist remark been made it would have been a fairly central allegation from the outset. This allegation came for the first time almost six years after the conversation between Mr. Charles and the applicant took place and based on the passage of time itself, I find that there is no credible basis to believe such a remark was ever made by Mr. Charles. The applicant’s alleged recollection of how Mr. Charles treated him further undermines his overall credibility and is a further reason I would dismiss as unreliable the applicant’s remaining, unparticularized accusations that others such as Dr. Pitt, Ms. Dey, Ms. Gaymes and two teachers at Tumpane were conspiring against him because in the his own words they were all “Black Ladies”, “Caribbean Ladies” or Italian Sisters”.
57For all of the above reasons, this Application is dismissed.
Dated at Toronto, this 19th day of July, 2013.
“Signed by”
Dale Hewat
Member