Lucy Peixoto v. University Of Ottawa and Alain St. Amant, 2013 HRTO 150

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lucy Peixoto

Applicant

-and-

University Of Ottawa and Alain St. Amant

Respondents

DECISION

Adjudicator: Paul Aterman

Date: January 28, 2013

Citation: 2013 HRTO 150

Indexed as: Peixoto v. University of Ottawa

WRITTEN SUBMISSIONS

Lucy Peixoto, Applicant

Yavar Hameed, Counsel

University of Ottawa and Alain St. Amant, Respondents

Karen Jensen, Counsel

Introduction

1This decision deals with whether this Application should be dismissed for delay. On April 26, 2012 the applicant filed this Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services because of disability.

2The applicant is a university student. She has a disability that is non-evident and cyclical. She alleges that because of this disability she was unable to complete a course offered by the respondent university, despite repeated attempts. The applicant maintains that her treatment by the university and the personal respondent over the course of these attempts was discriminatory. She maintains that the decision by the university and the personal respondent not to allow her to withdraw from the course after her last attempt was also discriminatory.

3The respondents have filed a Request for an Order During Proceedings that asks the Tribunal to dismiss her Application on the basis that it is out of time. For the reasons set out below I conclude that the Application must be dismissed for delay.

background

4For the purpose of these reasons I am assuming, without deciding, that the relevant facts alleged by the applicant and set out below are correct.

Events from December 2005 to December 2009

5In 2005 the applicant was enrolled at Carleton University. She took a course at the University of Ottawa in Animal Physiology entitled BIO 3301. The course was available to Carleton University students through an exchange agreement between the two universities.

6From December 2005 to 2007 the applicant was unable to write the midterm and final examinations in BIO 3301 due to her disability. The university did not take issue with her inability to do the exams in this period. However, the applicant alleges that when she requested to defer writing the exam in December 2007, this was grudgingly allowed, as the then Dean of the Faculty of Science made disparaging remarks and treated her disability as a burden to the university.

7In December 2008 the applicant was scheduled to write the BIO 3301 final exam, but missed the exam because there was a transit strike in Ottawa at that time, she was physically unable to walk and she had no funds to pay for a taxi. The university then deferred the exam to March of 2009. The applicant alleges that in March she began, but could not complete, the exam because of her disability. She obtained a medical certificate, and the university again deferred the exam, this time to December of 2009.

8The applicant maintains that in April of 2009 the Dean of the Faculty met with her and warned her that the university would not accept any excuse if she failed to write the exam in December. She alleges that she asked the Dean if this included an inability to write because of her disability, and was told that there would be no further deferrals regardless of the reason.

9The university made preparations for the applicant to write the exam on December 19, 2009, including setting aside a room and ensuring that the applicant would be supervised while writing. The applicant alleges that her disability again prevented her from writing the exam on December 19. Her physician advised her to take a leave of absence from her studies. On December 19 the applicant provided a medical certificate to the professor who was assigned to oversee the writing of the exam. She advised the university that she would no longer try to write the exam.

10That day the personal respondent directed that the applicant’s mark be changed from DFR (deferral) to INC (incomplete). A mark of INC is treated as a failing grade and remains on the student’s transcript.

Events from January 2010 to January 2012

11The applicant believed that it was discriminatory to record a mark of INC on her transcript because her failure to complete the course was attributable to her disability. She emailed the personal respondent and requested that she be allowed to retroactively withdraw from the course, rather than be marked INC. The personal respondent refused this request. The applicant then started a process to have that decision overturned. She alleges that she began with an email on January 26, 2010 to one of the respondent university’s administrators asking whether she had to make her request to the University of Ottawa or to Carleton University.

12The applicant was told by the respondent university that she had to make her request to Carleton. She did so, and the Registrar’s Office at Carleton refused her request on the ground that the applicant had been told in advance that the opportunity to write the exam in December 2009 was her final opportunity. The applicant then requested that Carleton’s Vice-President of Academics overturn that decision. On August 23, 2010 the Vice-President of Academics informed her that Carleton had no authority to deal with the issue, because the Undergraduate Exchange Agreement between the two universities stipulates that grade appeals are to be made with the institution offering the course, in this case the respondent university.

13The applicant then consulted with the Student Appeals Centre at the respondent university, and on October 28, 2010 she and the Director of the Centre met with the personal respondent and the respondent university’s Administrator of Undergraduate Programs. At that meeting the applicant set out Carleton University’s position on the issue and again requested to withdraw from BIO 3301. She maintains that the personal respondent indicated that the respondent university did not have the power to change her transcript, but that he would prepare a letter on her behalf indicating his support for Carleton to change the grade from an INC to a withdrawal.

14The letter, dated November 9, 2010, was prepared by the personal respondent but the applicant states that she did not forward it to Carleton as it omitted any expression of support for changing the grade and simply left the decision to Carleton. In addition, the applicant felt its tone was demeaning. The applicant then sought the help of the respondent university’s Centre for Equity and Human Rights.

15The Directors of the Centre for Student Appeals and the Centre for Equity and Human Rights met with the personal respondent and a university administrator on February 7, 2011. On the following day they met with the respondent university’s Provost. These meetings dealt not only with the applicant’s case, but also with the fact that the respondent university’s policies on accommodation did not explicitly address whether a student could retroactively withdraw from a course where their failure to write an exam was due to a disability. The Provost was supportive of a clarification that students who are unable to complete a course because of a documented disability should not be penalised for this on their academic records

16Following these meetings, on March 22 the Director of the Centre for Equity and Human Rights emailed the personal respondent on the applicant’s behalf. The Director summarised the meetings of February 7 and 8, and proposed some wording for a letter that the personal respondent would send to Carleton supporting a change in the applicant’s grade from INC to a withdrawal.

17The personal respondent replied on the following day, indicating that he found the tone of the proposed wording too legalistic, but that he would be comfortable if the Centre for Equity and Human Rights drafted its own letter on behalf of the applicant, setting out its reasoning. He would then append that letter to his, indicate his agreement with the Centre’s reasoning and confirm his support for changing the grade to a retroactive withdrawal. His agreement was subject to seeing documentation that the applicant’s disability was persistent in nature.

18The Director of the Centre for Equity and Human Rights replied to the personal respondent on May 18, 2011, providing the information he requested. The personal respondent responded to the Director by email on June 5 and included his draft of a letter to Carleton. This draft proposed that the respondent university would change the applicant’s grade from INC to a grade of DFR (signifying deferral), with a view to Carleton then allowing the applicant to retroactively withdraw from the course. The personal respondent explained in the letter that he was proposing this approach because it was his understanding that only Carleton could allow the applicant to withdraw from the course.

19The applicant refused to accept this letter because she felt that its wording was an attempt by the personal respondent to avoid taking responsibility for what she believes was a discriminatory course of conduct. In September of 2011 she filed an appeal with the Senate Appeals Committee of the respondent university. She also requested a meeting with the Provost.

20In September of 2011 a number of emails circulated among administrators of the respondent university. These emails show that, contrary to the position that had been communicated to the applicant by the respondents, since March of 2009 the respondent university and Carleton had agreed that for exchange students, the host university (as opposed to the home university) could grant a withdrawal from a course. It is evident that some of the respondent university’s administrators were aware of this fact, while others were not.

21The meeting that the applicant requested with the Provost took place on October 3, 2011 and on October 6 the respondent university changed the applicant’s grade from INC to a retroactive withdrawal.

22In December of 2011 the applicant filed a request under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c.F.31 (“FIPPA”). In January of 2012 she received the documents she requested. In the documents there are a number of emails between various officials of the respondent university, including the personal respondent. In some of the emails there are sarcastic and disparaging comments about the applicant and the history of this case.

submissions

The Respondents’ Position

23The respondents request that the Application be dismissed because the events underlying the allegations of discrimination in this case predate April 16, 2011, which is one year before the Application was filed. They also argue that the delay in filing was not incurred in good faith and that they would be substantially prejudiced if the Application is allowed to proceed.

24They argue that even if the applicant can show that the decision of the personal respondent to assign the applicant a grade of INC in December 2009 was discriminatory, then the subsequent alleged refusal to change the grade from INC to a withdrawal is not a new incident or series of incidents of discrimination. Rather, it amounts to the respondents maintaining their original refusal.

25Further, the respondents argue that the steps the applicant took after December 2009 to have the personal respondent’s decision overturned amounted to a choice on her part to follow an internal appeal route, which ultimately proved successful. They argue that in December of 2009 the applicant felt that the decision to impose a grade of INC was discriminatory, and at that point she could have filed an Application to the Tribunal. They maintain that she cannot rely upon her choice to pursue an internal avenue of redress in order to bring her later Application within time.

26In relation to the applicant’s FIPPA request, the respondents argue that her discovery of communications in January of 2012 does not amount to a new incident of discrimination. The respondents say that the communications are evidence which, at best, support her allegations regarding earlier events.

27The respondents argue that, given the age of the allegations, they would suffer prejudice if the Application were to proceed. They state that the respondent university will have destroyed documents in lawful accordance with its document retention policies, that witnesses’ memories have faded and that some employees have moved on to other jobs.

The Applicant’s Position

28The applicant maintains that there is an unbroken series of incidents from December 2007 until the applicant’s grade was changed to a withdrawal in October 2011. She argues that the series consists of:

• Disparaging and discriminatory comments made by the then Dean in granting a deferral in December 2007;

• A stipulation by the then Dean in April of 2009 that the deferral to December 2009 would be the final opportunity to write the exam, regardless of any reason that might cause a further deferral;

• Disparaging comments made in December 2009 by the personal respondent to the applicant directly, as well as comments made by university officials, including the personal respondent, about the applicant in emails to make arrangements for the applicant to write the exam;

• The decision of the personal respondent in December 2009 to award a grade of INC;

• Misleading advice provided by the respondents between January and October 2010 that the applicant needed to request a change in the grade from Carleton;

• The drafting of a letter by the personal respondent to Carleton in November of 2010 that was not supportive of the applicant and stigmatized her;

• The failure of the respondents to take action to accommodate the applicant between February and June of 2011;

• The drafting of a letter by the personal respondent to Carleton in June of 2011 that did not satisfy the applicant as sufficiently supportive;

• The failure of the respondents in September of 2011 to adjust the applicant’s grade, on the ground that she needed to formally request this of the respondent university’s Registrar.

29The applicant argues that – whether through bad faith or negligence - the respondents’ failure to apply their own March 2009 policy governing which university could grant a withdrawal was discriminatory. She asserts that each time the respondents wrongly maintained that only Carleton could grant a withdrawal, this was a separate and discrete act of discrimination. There was an ongoing duty on the part of the respondents to accommodate the applicant’s requests to change her grade.

30The applicant also argues that if she has not established that these events amount to an unbroken series of incidents, then her discovery in September 2011 that the respondent university had the power to grant a withdrawal since March of 2009 justifies any delay, as the discovery is an event which shows that the respondents consistently misrepresented the truth to her.

31Finally, the applicant argues that the respondents would not suffer prejudice if the Application were to proceed as the events are well documented, and there is no reason to believe that any documents have been destroyed or that witnesses are unavailable.

analysis and decision

Do The Events After April 26, 2011 Form A Series Of Incidents?

32Section 34 of the Code establishes a statutory time limit for filing applications, subject to certain exceptions. The relevant portions of section 34 are as follows:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

33In this case the one year period runs from April 26, 2011. The alleged incidents of discrimination which follow that date are the failure of the respondents on various occasions to change the applicant’s grade to a withdrawal, whether by not producing sufficiently supportive letters requesting Carleton to change the grade, or by not doing it themselves in accordance with the March 2009 policy. The issue to be determined is whether these amount to a series of incidents of discrimination or whether they are the continuing effects of an earlier incident, one which predates April 26, 2011.

34The decision in Garrie v. Janus Joan Inc., 2012 HRTO 1955, provides a useful review of the Tribunal’s decisions on this issue and a framework of analysis for approaching such cases. The Tribunal examines how the decision of the Divisional Court in Visic v. Ontario Human Rights Commission, 2008 CanLII 20993 (ON SCDC), [2008] O.J. No. 1768 (“Visic”) has been applied. It then goes on to state, at paras. 38-42:

In our view, while there have been different trends in the Tribunal’s developing application of Visic, supra, a number of non-exhaustive principles emerge, which help to identify the distinction between an incident of discrimination and its continuing effects.

First, as the Divisional Court stated in Visic, supra, to establish that an occurrence is an incident of discrimination (as opposed to merely the continuing effects of an incident), a party must point to acts of alleged discrimination which could be considered as separate contraventions of the Code. At this stage of the inquiry, the focus is on whether the last conduct complained of could, on its own, support a finding of discrimination.

Second, the Tribunal looks to when the allegedly discriminatory decision or act occurred and considers whether this is distinct from the timing of its consequences. This appears to be the step at which many of the subtleties play out. At this stage, the focus of the inquiry should be on whether the incidents in question involve fresh steps taken by the parties, each step giving rise to a separate alleged breach of the Code. This interpretation flows from the court’s language in Visic, supra. It also finds support in the arbitral jurisprudence, which has generally held that, even where the conduct complained of has continuing effects, there is no series of incidents unless the respondent takes a fresh step that could constitute a separate breach of the collective agreement. See Port Colbourne General Hospital (1986), 1986 CanLII 6715 (ON LA), 23 L.A.C. (3d) 323 (Burkett).

Thus, allegations concerning a discrete, non-continuing violation (such as the imposition of discipline or the failure to promote or hire) may have ongoing consequences but, without more, do not amount to a series of incidents within the meaning of the Code because they do not involve any fresh steps taken past the initial alleged incident of discrimination. Similarly, without more, the fact that a respondent maintains a decision it has already taken does not involve a fresh step, nor does it give rise to a separate breach of the Code. See, for example, Longtin, supra.

Third, the Tribunal has also considered when the consequences of the alleged discrimination are manifest for the applicant. For example, in cases where a respondent has terminated an applicant’s employment, the Tribunal has generally applied Visic, supra, to mean that the limitation period runs from the date the employment relationship ends: Longtin, supra. This is because, while a failure to provide a particular payment or benefit may be ongoing beyond the end of the employment relationship, the consequences of severing it are generally manifest as of the date of termination. In such cases, the Tribunal has not interpreted the ongoing failure to provide a benefit or payment upon termination as a series of fresh events. The termination of the employment relationship is the act which is discriminatory rather than the ongoing payments.

35In this case the allegedly discriminatory decision took place in December of 2009 when the personal respondent decided to assign a grade of INC to the applicant because she failed to complete the exam in BIO 3301. The events that follow, beginning in January 2010, are efforts by the applicant to have that decision overturned.

36In my view the decision to assign a grade of INC was a discrete decision which had a continuing effect from December 2009 until it was overturned by the respondents in October 2011. Unlike the situation in Garrie, where the ongoing exchange of labour for pay gave rise to a breach every time the applicant was paid on a discriminatory basis, in this case the respondents made a single decision about how to grade a single course. That decision was fixed and finite.

37The respondents’ subsequent failure to overturn the decision to award a grade of INC amounted to a decision to maintain their allegedly discriminatory initial position. After the initial decision there was no new information or other action taken by the parties that would amount to a fresh step in the sense outlined above in Garrie. Rather, the applicant kept asking for the decision to be overturned and the respondents – whether intentionally or not – kept misdirecting her to Carleton to seek redress.

38Further, it is evident that the consequences of the alleged discrimination were manifest to the applicant when she was advised that the grade assigned would be an INC. In January 2010 she inquired of the respondent university whether her appeal of this decision should be directed to it or to Carleton. She then pursued the matter through Carleton, including writing an 8 page letter to the Vice President, Academic Appeals in May of 2010. When Carleton directed her back to the respondent university, she continued to pursue the appeal vigorously, enlisting the help of the Centre for Student Appeals and the Centre for Equity and Human Rights.

39The applicant was aware of the consequences of the alleged discrimination by January 2010. In her mind it was clear that the actions of the respondents were discriminatory. She could at that time have filed an Application with the Tribunal. Instead she chose to pursue internal appeals. The appeal process was unnecessarily prolonged by the failure of the respondent university to follow its March 2009 procedure, but this does not alter the fact that the applicant was aware of the consequences of the alleged discrimination before she went down the path of internal appeals.

40In this regard, I should add that the applicant’s discovery in January 2012 of the respondents’ emails through the FIPPA request does not amount to a fresh incident of discrimination. In Klein v. Toronto Zionist Council, 2009 HRTO 241, at para. 23, the Tribunal reasoned as follows:

What the applicant later uncovered was not information that assisted her in discovering her potential case under the Code, but rather evidence that would support her allegations. The discoverability doctrine may provide an exception to a statutory limitation period in order to ensure fairness to parties who simply cannot know within the stipulated timeframe that they have a case. It does not exist to allow aggrieved persons to delay making a claim in order to gather evidence that confirms their suspicions or buttresses their case.

41I find that this analysis applies here. The emails deal with the preparations for the applicant to write the exam in December of 2009, and then with her request to have the INC decision overturned. These emails arguably support the applicant’s view that the respondents acted in a discriminatory way, but they do not amount to information making her aware of acts of discrimination that she did not already believe had taken place. The applicant’s belief that the grading decision was discriminatory crystallised in January of 2010 when she challenged the decision to award her an INC.

42For the reasons I have outlined above, I conclude that the events which postdate April 26, 2011 do not form part of a series of incidents of discrimination within the meaning of the Code. Rather, they represent the ongoing effects of the respondents’ decision in December 2009 to assign the applicant a grade of INC. Accordingly, the Application is out of time.

Was The Delay Incurred In Good Faith?

43In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal examined the issue of good faith as a justification for delay. The Tribunal noted, at para. 24:

In my view, where an applicant seeks to establish that a delay in filing an application was “incurred” in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.

44The applicant maintains that her Application has been brought within time, but argues that if the Tribunal finds otherwise, then the respondents’ disclosure to her in September 2011 that they had not been following the March 2009 policy governing exchange students justifies any delay in filing the Application. She maintains that when she discovered the policy she then knew that the respondent university was the appropriate respondent, as opposed to Carleton.

45This is not an argument about good faith in explaining a delay in filing. Instead, it appears to be another argument that the Application is not out of time. As I indicated above, the respondents’ failure to apply its own policy prolonged the process of overturning the decision to grade the applicant with a mark of INC, but the applicant already viewed the awarding of the mark as discriminatory before she was misdirected by the respondents to appeal to Carleton. At that time she could have made an Application to the Tribunal. The subsequent discovery by the applicant in September 2011 that the respondents had not been applying their own policy does nothing to alter this fact.

46As I have found that the Application was not made within time and the applicant has not advanced any arguments that her delay was in good faith, it is unnecessary for me to consider whether substantial prejudice would result to any party if the Application were to proceed. See: Esanu v. Georgetown Men’s Non-Contact Hockey League, 2009 HRTO 579 at para.16.

order

47The respondents’ Request is granted. The Application is dismissed for delay.