Donevan v. University of Windsor, 2013 HRTO 1882

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donevan

Applicant

-and-

University of Windsor, Wilfred Gallant,

Brent Angell, Clayton Smith

Respondents

INterim Decision

Adjudicator: David Muir

Date: November 12, 2013

Citation: 2013 HRTO 1882

Indexed as: Donevan v. University of Windsor

APPEARANCES

Donevan, Applicant

Self-represented.

University of Windsor, Wilfred Gallant,

Brent Angell, Clayton Smith, Respondents

David Amyot, Counsel

1This Application was filed pursuant to section 45.9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) wherein the applicant alleges that Minutes of Settlement (“MOS”) negotiated by the parties to resolve Tribunal File TR-0334-I (the prior Application) have been breached. The applicant takes the position that the breaches of the MOS are such that he considers the settlement void and he is no longer bound by it. Accordingly, the applicant is seeking to have the MOS set aside and the prior Application re-opened and a hearing of its merits begin.

2In a Case Assessment Direction (“CAD”) issued to the parties in April 2012, I directed that the applicant provide particulars of the alleged breaches of the MOS and submissions in support of the remedy he was seeking. After an extension of time was granted by the Tribunal, these submissions were received in September 2012. In response to the particulars provided, the respondents take the position that they disclose no evidence that the MOS have been breached in any respect.

3After reviewing the materials filed by the parties, I directed in a further CAD issued on March 7, 2013 that a summary hearing be held to determine whether or not this Application should be dismissed because it has no reasonable prospect of success. A hearing was held on August 13, 2013 in Windsor. The applicant, with leave of the Tribunal, and on consent of the respondents recorded the proceeding on the understanding that it was for the applicant’s use in the hearing and would not be used for any other purpose.

4The Application is dismissed in part because I find that there is no reasonable prospect that the applicant can succeed in establishing a violation of the MOS, except on one point.

5At the centre of the dispute in the prior Application was the applicant’s claimed need to record the entirety of his class to accommodate his disability related needs. The respondents did not dispute the applicant’s right to record the lecture portion of his classes. More narrowly, the primary dispute was about the ability of the applicant to record class discussion in which, in some courses, students were called on to share personal, and in some instances, highly personal details of their lives. A central issue in the prior Application was to what extent the applicant’s class mates and the efficacy of these courses might be affected by his recording of their personal information if his accommodation requests were honoured by the University. The applicant’s position was and is that his need to record the entirety of these classes trumped any privacy concerns of other students and any concerns about the possible chilling effect this aspect of his accommodations have on the sharing of personal information which is allegedly crucial in some courses.

6The MOS essentially deferred the resolution of the central dispute to a review by a human rights expert of the respondents’ Policy on Audio Recording of Lectures by Students with Disabilities (A.4) and the Special Needs Policy (S.2). Pending the review the applicant would be entitled to record the entirety of his classes without limitation, but the MOS did not suspend the operation of the Universities policies in relation to the issue in dispute. The respondents also agreed to assist the applicant in graduating and the applicant was to be paid a sum of money as damages.

THE ALLEGATIONS

7The applicant argues that the respondent did not negotiate the MOS in good faith and more particularly did not abide by the reasonable efforts clause of the MOS set out in Article 3 of the MOS. The applicant also argues that there were specific breaches of the MOS with respect to the review of University policy and his ability to make submissions on the results of the Review.

8Article 3 of the MOS provided as follows:

The Respondent University of Windsor will make reasonable efforts to assist the Applicant to complete his undergraduate Honours Bachelor of Social Work degree with expedition.

9The applicant relies on what he characterized as a “multitude of sins” some of which considered on their own might not be of concern, but taken together amount to evidence of the absence of good faith on the part of the respondents. In this regard he relies on a dispute about the documentation required of him to support a request for an ergonomic chair as well as a dispute with respect to the ownership of a computer to which he contributed a significant portion of the cost. Both of these disputes were by and large resolved with the ownership of the computer resting with the applicant and the applicant reimbursed for the chair. These two incidents, on their own, are clearly insufficient to establish a breach of settlement.

10The applicant also alleges that the respondents had breached Article 6 of the MOS which provided that the respondents confirm that they will continue to abide by the Special Needs Policy S-2. The applicant alleged that the respondents breached Policy S-2 by insisting that Policy A-4 is a valid policy and including it in the applicant’s course outline for his course, 02-47-339, and the other two sections of the course thereby poisoning the scholastic environment. The applicant alleged that by insisting on the appropriateness of Policy A-4 and by tying it to the Social Work Code of Ethics, the use of recording devices is being vilified within the School of Social Work.

11I note that the respondents did not agree that any of their policy was inappropriate or in violation of the Code. I also note that this Application concerns an alleged breach of settlement, not whether or not there have been fresh violations of the Code by the respondents. Whether the applicant’s allegations are accurate or not, the question before me is whether these allegations, if true, would amount to a violation of the MOS. In my view the fact that the respondents continued to rely on those policies pending the Review by an expert was specifically contemplated by the MOS and cannot amount to a breach of the MOS.

12In this regard the applicant also alleged that the respondent did not negotiate the MOS in good faith because they knew at the time that Policy A-4 was not valid and likely not legal. The basis for this claim is that it appears that contrary to everyone’s understanding at the time, Policy A-4 was not a policy expressly approved by the Senate of the respondent University. As to the general validity of Policy A-4 on Code grounds, the fact that there were potential issues about it was clearly raised by the applicant in his prior Application but not resolved. However as discussed further below at para. 33 there is no basis to not accept the respondents assertions that Policy A.4 is valid University policy even if not approved by Senate. This aspect of the applicant’s claim has no merit and would not tend to support the conclusion that there has been a breach of settlement.

13At the summary hearing, the applicant raised for the first time a new particular or allegation with respect to the breach of the MOS that in one of his courses the instructor indicated to him that there may be a problem with the extent of the applicant’s ability to fully utilize his accommodations if a student complained about his recording of the entirety of the class.

14As indicated, the MOS contemplated that the applicant would be able to record the entirety of his classes. The MOS did not address how the University would respond if a student complained about this. The allegation of the applicant at its highest is that one of his instructors flagged this as an issue that would have to be dealt with. In fact the issue never materialized because the applicant chose to withdraw from his course rather than negotiate that issue. He did so, he stated, because he feared what might happen if the issue came to a head in this particular class or any other of his classes.

15In understanding the the applicant’s approach to this problem I observe that the applicant’s general approach in the past to this problem, when it arises, has been to insist on his rights in the classroom and essentially bringing the classroom proceedings to a halt. In the past this has resulted in the applicant being removed from the classroom by security and being subject to academic discipline. The applicant would understandably have been reluctant to re-engage in that level of conflict, however that is not the only approach he could take if the issue arose. For example, in the event such a dispute arose he could have acquiesced and either taken the issue up outside of the classroom and/or filed an Application with the Tribunal. Unfortunately the applicant decided to avoid the problem by withdrawing. I might have taken another view of this issue had the applicant actually been denied the ability to utilize the full extent of his claimed accommodations. However he was not and I am not satisfied in the circumstances that this allegation could amount to a breach of the MOS because I am not satisfied on the basis of the applicant’s allegations that the applicant was in fact denied the right to record any part of his classes that he wished to.

16The applicant also alleges that a measure of the respondents’ lack of good faith can be seen in the persons that were assigned to supervise his accommodations. The applicant states that it was well known that there had been issues between the applicant and the two individuals, the respondent Smith and another employee of the respondent University. The respondent argued that these individuals were involved because the issues raised by the applicant’s various issues were their responsibilities.

17I am not satisfied that the fact that Mr. Smith and others with whom the applicant had been in conflict in the past remained involved in his accommodation issues is evidence of bad faith or otherwise a violation of the MOS. To some degree the respondent actually responded favourably to the applicant’s request to deal with other individuals. I also observe that by and large the applicant’s disputes with Mr. Smith were resolved largely in the applicant’s favour. Accordingly these allegations do not support the conclusion that there has been a violation of the MOS.

18The applicant alleges that the respondent University breached Article 5 of the MOS when they did not remove failing grades from his transcript. The MOS did not require that any failing grades be removed from the applicant’s transcript. Rather, the MOS provided that the applicant’s prior failing grades would not be counted against him in assessing his eligibility to remain in the Social Work program. There is no indication that this provision of the MOS has not been complied with.

19The applicant alleges that the respondents have failed to provide training and education to the special needs office, faculty and staff on the duty to accommodate and that this constitutes systemic discrimination. I am not satisfied that this allegation, if factually correct, would constitute a violation of the MOS as it did not require training of any of the respondent University’s employees.

20The applicant also alleged at the hearing that academic misconduct charges were brought against him but were dismissed. The charges related to alleged harassment by the applicant of an employee of the respondent. The applicant alleges, in effect, that this was a reprisal for his requesting accommodation under the Code. It is not at all clear how this apparently unrelated event can constitute a breach of the MOS.

21The applicant feels strongly about his interpretation of his rights under the Code. The conflict with various officials of the respondent University has been extensive and long standing. The applicant’s general approach to any dispute about the extent of his rights is to adamantly insist on them. In the workplace there is a concept known as “work now, grieve later” and the applicant appears to reject such a notion in this context. Accordingly, he has in the past insisted on being accommodated to the extent of having to be physically removed from classrooms with consequent academic discipline. Whether the applicant’s approach to vindicating his rights is appropriate or not, it has exacerbated the conflict and notwithstanding the dismissal of the latest academic charges against the applicant, I find in the circumstances that there is no reasonable prospect that the applicant can establish that these charges were trumped up in bad faith in breach of the MOS.

22The applicant has had a difficult time achieving his goal of graduating. The parties to the MOS, for different reasons, shared that goal. For the above noted reasons I find that the Application in large part has no reasonable prospect of success. I appreciate that the applicant has little trust in the respondents and accordingly interprets their every action in a negative light. To some degree this is understandable. However, given the nature and extent of the conflict between the parties going back to 2004, the fact that there may have been difficulties in implementing this settlement is not surprising.

23In my view, the applicant’s allegations noted above are, by and large, issues of implementation of the MOS with little consequence for him and no real interference with the terms of the MOS. In my view they do not taken together, amount to a breach of the reasonable efforts Article of the MOS. The only substantial consequence for the applicant in any of these disputes was his decision to withdraw from his classes. As I have indicated, in my view, the applicant should not have withdrawn at that stage, but he may have chosen another way to resolve this potential problem without inviting academic discipline. He chose, however, to withdraw with the result that there was no actual breach of the MOS in the circumstances.

THE REVIEW

24A central allegation of the applicant is that the respondents have violated the MOS in that the Review of the University’s policies provided for in Article 2 of the MOS was inadequate. The applicant also complains that he has been denied the right to make oral submissions on the Review report to the Senate.

25Article 2 provided as follows:

2. The Respondent University of Windsor agrees that it will retain at its expense an independent third party expert in Human Rights law to review the current Policy on Audio Recording of Lectures by Students with Disabilities (A.4) and the – Special Needs Policy (S.2) (hereinafter referred to as the Review),

3. As part of this Review the letter of consent to release information currently used to accommodate disabled students will be considered.

4. As part of the Review the Applicant will be entitled to make written submissions to the independent Reviewer;

5. The Applicant will be provided with a copy of the report of the Reviewer and will be entitled to make written submissions to Senate on the recommendations of Reviewer, in the event recommendations are forthcoming.

6. The Respondent University of Windsor will make best efforts to retain the Reviewer on or before October 1, 2011.

26The respondent University retained Mr. Raj Anand, a lawyer with extensive experience in human rights law, to conduct the Review. The applicant alleges that the Review conducted by Mr. Raj Anand was inadequate and clearly shows signs of bias. The applicant also alleges that Mr. Anand declined to address the complete policy by stating “I will not attempt to interpret copyright law or the online publications of the Canadian Intellectual Property Office” which is part of Policy A-4. The applicant alleges that he made detailed submissions to Mr. Anand none of which were addressed in the Review.

27In the further particulars provided by the applicant, he alleged that he has reason to believe that the instructions were given to Mr. Anand in such a manner as to bias the outcome of the Review. At the hearing the applicant made no further submissions in support of this latter claim and on its face it appears to be without merit.

28The applicant also alleges that Mr. Anand told him that while the applicant could submit materials to him, he did not have to read or consider them. The applicant also alleges that the report does not appear to reflect any of his submissions on his concerns with the organizational respondent’s policy.

29On this point, I agree with the respondents. There is no breach of the MOS. The respondents agreed to retain an expert in human rights law to review the policies in question. There can be no dispute that they did this. As regards the report itself it reflects the expertise of its author. Moreover, even assuming that all of the allegations of the applicant are true, it is not clear how the respondents might be responsible for any of the alleged actions of the reviewer. The fact is that the obligation of the respondent was to retain an expert to review the policies in issue and that was done. Whether the report met with the applicant’s approval was an issue that was not contemplated by the terms of the MOS. The MOS merely contemplated that the applicant “will be entitled to make written submissions to Senate on the recommendations of Reviewer, in the event recommendations are forthcoming.”

30With respect to the applicant’s allegation that he has been denied the right to make oral submissions to the Senate in response to any recommendations of the review, this allegation may be substantiated. To date, while there were recommendations made in the report the applicant has been prevented from making submissions on those recommendations.

31The respondent argues that the MOS did not require that the review report be placed before the Senate and accordingly there has been no breach. I do not agree.

32The key provision in this regard is reproduced again for convenience:

The Applicant will be provided with a copy of the report of the Reviewer and will be entitled to make written submissions to Senate on the recommendations of Reviewer, in the event recommendations are forthcoming.

33As previously discussed, related to this issue is that contrary to the understanding of everyone involved, the Policy at the heart of this dispute (A-4) has not been passed by the Senate but rather “placed” before it in 2006. The applicant takes the position that the policy is consequently a nullity. The applicant also states that the claim that Policy A-4 was a policy passed by Senate was a material misrepresentation going to the heart of the contract. The respondents state that they understood Policy A-4 to be a Senate policy at the time the MOS were entered into. Whether the policy was passed by Senate or not, the policy was at all material times, a University policy made pursuant to authority delegated to the administration to make administrative policies. The applicant has no evidence to counter the respondents’ position that Policy A-4 is valid University policy and on the face of it the claim is entirely plausible. Consequently I am not persuaded that this mistake is any way material to the MOS.

34However it does appear that the respondent University may be in breach of clause 2(2) of the MOS in that the applicant has apparently not been able to make written submissions to the Senate concerning the recommendations of the review report of which there are several. I agree with the respondents that the right is contingent, but does not appear to be contingent on the University placing the report before the Senate, but rather on there being recommendations in the Reviewer’s report.

35Given the nature of this potential breach of the MOS the question arises whether or not further evidence would be need to be heard to resolve it. Accordingly the Tribunal directs that the parties make submissions with respect to next steps within 14 days of the date of this Interim Decision.

36I am seized of this case.