HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Nepthys Aberdeen Applicant
-and-
Governing Council of the University of Toronto Respondent
DECISION
Adjudicator: Geneviève Debané Date: January 25, 2013 Citation: 2013 HRTO 138 Indexed as: Aberdeen v. Governing Council of the University of Toronto
APPEARANCES
Nepthys Aberdeen, Applicant Self-represented
Governing Council of the University of Toronto, Respondent Sari Springer, Counsel
Introduction
1The applicant filed an Application on May 31, 2010 under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination and reprisal in the areas of services, goods and facilities on the basis of sex, race, ethnic origin and disability.
2In an Interim Decision dated December 20, 2010, 2010 HRTO 2514, the Tribunal determined that it did not have the jurisdiction to consider the Application with respect to allegations that pre-dated June 2, 2009 because these were untimely. The Tribunal directed that a hearing be convened to address the remaining timely allegations in the Application. This Interim Decision was upheld in a Reconsideration Decision dated February 22, 2011, 2011 HRTO 386.
3The hearing on the merits of the Application was convened on December 16, 2011, February 27, 28 and 29, 2012 and May 24 and 25, 2012. Below is a brief summary of the evidence called by the parties.
THE APPLICANT’S EVIDENCE
4The Tribunal determined that it was fair and appropriate to permit the applicant to adopt under affirmation the statements made in Document 4 which is attached to her Application, as her evidence in chief, despite the objections of the respondent for the truth of their contents. I found that it was appropriate to do so in this case, because the statement in the Application was very particularized and the applicant was distressed about the prospect of having to testify about the events of June 2, 2009. The applicant was visibly upset and crying and would not have been able to testify about the events of June 2, 2009. I then proceeded to ask the applicant a number of questions with respect to the issues raised in the Application. The respondent elected not to cross-examine the applicant.
5The applicant was enrolled in the philosophy department at the University of Toronto. The applicant sought to have one of her papers regraded because she was dissatisfied with the mark that she was allocated. On June 1, 2009 she received an email from Professor Heath, advising that the reread of her paper had resulted in a lower grade.
6The applicant attended the philosophy department to pick up her essay at noon on June 2, 2009. The applicant was not happy with the comments attached to her paper by the professor who had marked the paper and asked Leanne Dawkins the identity of the marker. Ms. Dawkins advised the applicant that she did not know but even if she did, that she could not disclose it to her.
7The applicant then found Professor Heath, whom she had never met before. It was the applicant’s evidence that she was told by a secretary that she should speak to the professor. This evidence is disputed by the respondents who testified that the applicant sought out the professor on her own.
8The applicant entered Professor Heath’s office and said that she wanted to know the identity of the marker, to which he responded, no. The applicant responded that she would not take no for an answer.
9The applicant then wrote in her statement that the professor asked her to sit down and asked her who she was, which she characterized as feigned ignorance and “self-serving hospitality”. The applicant then states that there was a back and forth between her and the professor with respect to revealing the identity of the marker and the merits of her grade. At some point the applicant tore up the piece of paper and threw it in the air, and she asked to be given a zero grade on her paper. The applicant testified that she raised her voice during the meeting because she was trying to reason with Professor Heath.
10Eventually, two campus security officers were called and asked the applicant “Is everything alright here, can we help you ma’am?” To which she responded that her business was not with them but with the Professor. She stated that they approached her closely which she said that in “some circles this could be considered sexual harassment”. When they asked for her name the applicant states that she responded “well you can call me nigger, bitch or pup if you like.” She states that she refused to play their game, or answer their questions and continued to give the same response repeatedly. It was her view that freedom of speech guaranteed her the right not to speak. When they asked her to “please step out of the office” she responded that the law did not give them the right to touch her without just cause and that she did not have to speak with them. The applicant did not leave the office. The applicant testified that though she was asked to leave the office she was not asked to leave the building.
11The applicant testified that they took her purse and stepped outside of the office. When the officers came back the applicant stated that she continued to stare blankly at the wall ignoring the campus police. The female officer advised her that if she did not cooperate she would be arrested. A third officer was called to the office and he told the applicant that he was giving her one last chance to tell them her name or they would be arresting her. The applicant refused to answer and she was arrested.
12The applicant testified that the campus police used excess force during the arrest and that she was assaulted. She alleges that she was thrown on the floor by the three officers and that she was kicked, stepped on and finally struck in a concerted effort by their fists and their feet. The applicant recalls the officers telling her repeatedly to stop resisting them. The applicant stated that she did not resist the arrest. The applicant states that she was dragged out barefoot and without her glasses.
13Eventually, the applicant was taken to a campus vehicle. The applicant still refused to speak with the officers. The applicant did not answer when a supervisor came and asked her if she was alright or if she wanted to go to the hospital. The applicant asked for a lawyer and one of the officer’s badge numbers. The applicant was taken to the police station at 53rd division in North York where she was arrested resisting arrest, trespassing and assault. The applicant believes that she should have been taken to a division that was closer to her home and that there was a discriminatory reason behind the respondent’s decision to take her to the 53rd division. The charges against the applicant were eventually stayed by the Court.
THE APPLICANT’S DOCTOR
14Dr. Gea Gea the applicant’s treating psychiatrist from July 2006 until the summer of 2009 was summoned by the applicant to testify at the hearing about the applicant’s mental health conditions which include depression and schizophrenia. The Doctor testified that the applicant started decreasing her medications a few weeks prior to the June 2, 2009 incident.
15During cross-examination a medical consultation progress note dated June 22, 2009 was entered into evidence. This progress note indicates that the Doctor discussed with the applicant his concern that her increased distress and psychosis were related to her decreasing her medications. The Doctor further noted that her referential and persecutory ideas were likely delusions as opposed to reality.
16The applicant also called Michael Caskenette, who is a supervisor at Campus police. He explained that the applicant was taken to 53rd division because the applicant’s arrest occurred in one of the few University of Toronto buildings which is geographically located in that jurisdiction. Officer Caskenette denied that he offered to take the applicant home or to CAMH. He does recall asking the applicant whether she wanted to go to the hospital, which he says that she refused.
THE RESPONDENT WITNESSES
17Leanne Dawkins who is the Program Administrator, testified on behalf of the respondent. She recalled the incident of June 2, 2009, including that the applicant was yelling at Professor Heath in his office. She recalls hearing some banging noises, which sounded like fists on a desk and that over time the situation was not deescalating. She recalls overhearing the applicant being told repeatedly to leave and that, “If you leave now it is over.”
18Suzanne Puckering, the Office Manager, testified that she is the individual who contacted campus police after she heard the applicant yelling and screaming. She believes that the applicant was also pounding on the desk. Ms. Puckering explained, that she did not know who was in the office with Professor Heath but that she called the campus police because she believed that he required assistance. During cross-examination Ms. Puckering explained that she did not intervene because she did not believe that she could assist because the applicant was not behaving in a rational manner. She also stated that she recalls the applicant being asked to leave Professor Heath’s office.
19Professor Heath, the Undergraduate Associate-Chair testified that he made arrangements to have the applicant’s essay reread. Though the professor assigned to reread the paper awarded a lower grade, Professor Heath exercised his discretion and decided that he would not lower the grade. He testified that he handwrote this message to the applicant and included it in the envelope that she had to pick up.
20With respect to his interaction with the applicant on June 2, 2009, he testified that the applicant behaved in an outrageous manner, and that she was yelling and screaming at him. He was sitting at his desk and the applicant was standing up in front of the desk. She took the paper in the envelope and tore them up and threw them in the air. The applicant was repeatedly demanding two things, the name of the professor who regraded her exam and that she be given a zero grade. He does recall telling the applicant that there was nothing wrong with being a C student at one of the most difficult universities in the country. The applicant was not happy with this response and thereafter he tried to say as little as possible.
21Two campus police officers then arrived and asked what was going on. Professor Heath states that he told the officers that the applicant was very upset but that she had done nothing wrong. Professor Heath testified that he told the applicant that she was going to have to decide how things were going to have to end. The applicant refused to leave. Professor Heath left the office at the request of campus police and went into Ms. Puckering’s office. He overheard the officers asking the applicant repeatedly to leave and later, to “stop resisting”.
22After his examination-in-chief, the Tribunal gave the applicant over 30 minutes to prepare for her cross-examination of Professor Heath. During her cross-examination the applicant asked limited questions about the actual events that occurred on June 2, 2009. She also put to the professor that he had not in fact told her that her grade would not be reduced because of the reread. Professor Heath maintained that this was written on the document that she tore up in his office. Regardless, I find that it is not necessary for me to determine this issue for the purposes of this Decision.
23After the applicant indicated that she was finished cross-examining Professor Heath, I asked the applicant to take time to review her notes to make sure that she had no further questions of Professor Heath. The applicant indicated that she did not need that time and that she did not want to cross-examine Professor Heath any further because he would only deny what had actually happened on June 2, 2009. I again urged the applicant to take time to consider whether she had any further questions but she refused and maintained that she had finished her cross-examination.
24Professor Heath testified on February 29, 2012. The next day the Tribunal received an email from the applicant seeking direction from the Tribunal with respect to recalling Professor Heath as a witness at the next scheduled day of hearing. The respondent indicated by email that it opposed this request. The Tribunal directed the applicant to provide submissions and reasons in support of her request to recall Professor Heath.
25In an email dated May 9, 2012 to the Tribunal the applicant indicated that there are questions that she could not have anticipated prior to his first appearance and that she still desired to ask these questions of him. No further information is provided to the Tribunal about the nature of the questions that the applicant wished to pose to Professor Heath.
26I declined to permit the applicant to recall Professor Heath for the reasons that follow. The applicant had received a detailed will-say statement about the testimony of Professor Heath and he did not testify to any events that were not already contained in that witness statement. Therefore, I did not accept that any of his testimony could not have been anticipated. Also, the applicant had sufficient time to prepare for her cross-examination and she declined two offers for further time to canvass if there were any outstanding questions which needed to be put to Professor Heath. I also considered that it was unfair for Professor Heath to be subjected to further cross-examination after almost three months.
27Officer Sean Asselton, one of the two campus officers testified on behalf of the respondent. Officer Asselton testified that when he arrived at the scene, the applicant was yelling and screaming. He stated that the applicant was told that if she just left the matter could be resolved but that she stated several times that she would not leave. He testified that once he cautioned her that she could be arrested that, the applicant refused to speak. When asked her name she would repeatedly say to call her “nigger, bitch or pup.” He stated that after fifteen minutes of trying to reason with the applicant and to get her to leave, the decision was made to arrest the applicant.
28With respect to the actual arrest he states that the applicant was uncooperative, and resisted. He stated that the three arresting officers were hit several times in the upper torso and neck areas but they were eventually able to handcuff the applicant. Officer Asselton read the applicant her rights and asked if she wanted medical attention to which the applicant did not respond. After several minutes, she ran towards the other male officer and tried to kick him.
29During cross-examination Officer Asselton stated that there was some discretion exercised in the decision to arrest an individual and that his focus was to ensure the safety of the professors. Officer Asselton acknowledged that at some point he was advised by someone of the applicant’s name but that he was still asking her name in an effort to engage the applicant in communication in order to diffuse the situation. He stated that he focused his interaction on the applicant because she was behaving in an aggressive manner by yelling and screaming.
30The respondent proposed to call further witnesses, including the other two arresting officers, however, after I heard the evidence of Officer Asselton, I told the parties, that this proposed testimony appeared to be repetitive. I advised the parties that I would only hear the evidence of one further witness if either of the parties wanted them called as witnesses. Both parties advised that it was not necessary to call any further witnesses.
31The applicant made two detailed written closing submissions, one of which she read to the Tribunal on the last day of hearing. The applicant for the first time suggested in her closing argument that the actions of the respondent’s representatives were intentional in the sense that Professor Heath purposefully sent her the email on June 1, 2009, knowing that she would likely attend his office on June 2, 2009 at lunch, a time during which there were few potential witnesses.
32The respondent submitted that the applicant had not made out a case of discrimination. The respondent took the position that based on the applicant’s own testimony and written statement that there was ample non-discriminatory reasons which justified the respondent’s decision to have her arrested. The respondents did not present any cases to the Tribunal.
DECISION
33The issue that I must determine is whether the applicant’s Code rights were infringed by the respondent and if a prohibited ground in any way motivated the conduct of the respondent. It is not the role of this Tribunal to address issues of alleged unfairness that are not related to the Code.
34One of the most often citied cases in relation to the factors and approach to assessing credibility is Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). At p. 356-357, the British Columbia Court of Appeal stated:
…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.
35Having considered the matter it appears that there is not much dispute between the evidence of the applicant and the evidence of the respondent’s witnesses. I make the following findings which are not disputed:
a. The applicant attended Professor Heath’s office on June 2, 2009, to discuss the regrade of her paper;
b. The applicant tore up her paper and threw it in the air in the office;
c. The applicant would not accept not being told the name of the professor who had remarked her paper;
d. The applicant was demanding to be given a zero grade;
e. Campus police was called to the office and told the applicant repeatedly to leave the office;
f. The applicant refused to leave the office;
g. The applicant refused to give the officers her name, and repeatedly told them to call her “nigger, bitch or pup”; and
h. The applicant was arrested.
36To the extent that the applicant’s version of events differs from the respondent I prefer the respondent’s evidence. The respondent’s witnesses all corroborate the key events of June 2, 2009. I also accept Dr. Gea Gea’s testimony that the reduction in the applicant’s medication during this time increased her psychosis and caused the applicant to have persecutory ideas that were delusions as opposed to reality. Therefore, I find that it is likely that this affected the applicant’s ability to perceive the events on an objective basis. This includes the applicant’s allegations, for example, that she was sexually harassed and/or assaulted by the campus police which I do not accept occurred in this case. It also includes the applicant’s belief that the reread of her exam and allocation of her grade was discriminatory for which there is simply no objective evidence before the Tribunal to support this belief.
37Based on the totality of the evidence that I heard I find that the applicant has not established on a balance of probabilities that the respondent infringed her Code rights as alleged in the Application, which includes the respondent’s decision to call campus police, arrest her or to bring her to the 53rd division.
38Though the applicant denied yelling, she admits that she did raise her voice. I prefer the evidence of all of the respondent’s witnesses who all testified that she was yelling at Professor Heath. As such, I cannot find that Ms. Puckering’s decision to call campus police was discriminatory.
39Based on the applicant’s own evidence once the campus police attended the office, she was uncooperative with them and refused to leave despite repeatedly asked to do so. The applicant suggests that it was the intention of the respondent to have her arrested that day. However, having reviewed the applicant’s own evidence the campus officers repeatedly asked her to leave, which she refused. If it was indeed their intention to arrest the applicant this would have occurred immediately upon their arrival at the office and not after their repeated efforts to deescalate the incident.
40With respect to the applicant’s allegation that she was assaulted during her arrest, it is not the role of this Tribunal to address issues of alleged brutality unrelated to a Code ground. I accept Officer Asselton’s testimony that the applicant resisted the officers during her arrest. I do not find probable the applicant’s assertion that she did not resist the officers during her arrest. I find that this resistance was consistent with the applicant’s overall conduct, which included her refusal to cooperate with the officers and to accept their authority.
41To the extent that the applicant suggested that her conduct on June 2, 2009, may have been related to her mental health disabilities, in these circumstances I find that the respondent’s conduct was an appropriate response to her behaviour and was not tainted by discrimination.
42Based on the foregoing, the applicant has not established an infringement of her rights by the respondent as set out in the Application. The Application is dismissed.
Dated at Toronto, this 25th day of January, 2013.
“Signed by”
Geneviève Debané Vice-chair