Mary Ann Corbiere v. University of Sudbury, 2013 HRTO 207

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mary Ann Corbiere

Applicant

-and-

University of Sudbury, Andrii Krawchuk, Nahum Kanhai

Respondents

INTERIM DECISION

Adjudicator: Leslie Reaume

Date: February 5, 2013

Citation: 2013 HRTO 207

Indexed as: Corbiere v. University of Sudbury

WRITTEN SUBMISSIONS

Mary Ann Corbiere, Applicant

Self-represented

University of Sudbury, Andrii Krawchuk, Nahum Kanhai, Respondents

Jack Braithwaite, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination and reprisal with respect to employment because of race, ancestry and sex. This Interim Decision addresses the Requests filed by the respondents to dismiss the Application or in the alternative, to remove the individually named respondents.

2This matter was scheduled for hearing October 1 and 2, 2012. The applicant sought an adjournment of the hearing because one of her witnesses was unavailable to testify. The parties participated in a case management conference call on September 26, 2012 and agreed to use the October 2, 2012 hearing date to provide the Tribunal with oral submissions on the preliminary requests made by the respondents.

3The background to this Application is set out in the Interim Decision of the Tribunal dated February 13, 2012: Corbiere v. University of Sudbury, 2012 HRTO 312. (“Corbiere”)

4The applicant is an Assistant Professor with the Department of Native Studies with the respondent University. The individual respondents are the President of the University and the Chair of the applicant’s department. The applicant served as a faculty representative on the respondent’s Board of Regents, the body that deals with the governance of the University.

5The applicant alleges that she has been subjected to discrimination and harassment because she is a woman of Aboriginal ancestry. The applicant alleges that she was treated unfairly and harassed by the President of the respondent university; she was unfairly denied the ability to re-join the Board of Regents; she was unfairly denied a promotion to Associate Professor; she was treated unfairly in the handling of student complaints; she was given an unfair teaching load; and her pay was unfairly deducted.

6In Corbiere, the Tribunal conducted a thorough review of the allegations in response to a Request by the respondents to dismiss the Application in its entirety. The respondents argued that a number of the issues between the parties had been successfully resolved through the grievance process and that the remaining issues were outside of the purview of the Code.

7The question before the Tribunal in Corbiere was set out as follows:

Whether or not all or part of the Application ought to be dismissed as an abuse of process because the parties have a settlement agreement and release with respect to a grievance?

8The Tribunal concluded that paragraphs 6, 8-28 and 30-31 should be struck from the Application as constituting the subject-matter of agreements and settlements previously entered into by the parties. The Tribunal found that to permit these allegations to proceed would constitute an abuse of process.

9The Tribunal in Corbiere assessed all of the allegations against the standard of abuse of process, dismissed the bulk of the allegations but also determined that some allegations should proceed. The respondents now seek to have the remaining allegations dismissed on the basis that the decision in Corbiere has the effect of leaving nothing for the Tribunal to adjudicate.

10The Tribunal in Corbiere did not dismiss allegations that the applicant was harassed and treated unfairly by the President or the allegation that there was no institutional recourse available to her against the President. The respondents argue that the applicant’s concerns were investigated by the university Treasurer who concluded that they were administrative in nature and did not raise human rights concerns. The respondents ask the Tribunal to accept this finding and dispose of the applicant’s remaining allegations.

11The Tribunal in Corbiere was asked to consider the same argument and declined to do so because such a finding would require the Tribunal to determine the merits of those allegations without first hearing evidence.

12I decline to exercise my discretion to dismiss the remaining allegations for the same reason. This issue has already been decided by the Tribunal in Corbiere. It is premature for me to dispose of the remaining allegations on the basis of representations by the respondents that the allegations were investigated internally and found to be outside the purview of the Code. This decision is an interim one and does not preclude the Tribunal from determining, at some later stage, that the allegations have no reasonable prospect of success. But for now, the Tribunal will proceed in relation to the allegations set out in Corbiere.

13The Tribunal in Corbiere barred the allegations which relate to the following issues: the denial of promotion to Associate Professor; unfair teaching load in 2009 to 2010; the handling of student complaints about the applicant in 2008-2009 and the deduction of overload pay in 2009.

14The allegations which were explicitly preserved are contained in paragraphs 1 to 5, 7, 29 and 32-35. Paragraphs 1 to 5 and 7 contain allegations against the President and the Department Chair and relate to the applicant’s time on Board of Regents and the alleged failure to invite her back to the Board. Paragraphs 29 and 32 to 35 relate to allegations against the President and the pursuit of a remedy for his alleged conduct toward the applicant. The hearing will proceed on these issues in accordance with the direction set out below.

Removal of the Individual Respondents

15With respect to the removal of the respondents, I refer to the non-exhaustive list of factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31 (“Persaud”) which are often considered in assessing whether an individual respondent should be removed from an application. Those considerations include whether there are allegations of personal conduct which are central to the issues or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.

16Very few allegations remain following the decision of the Tribunal in Corbiere. However, in my view, the allegations against both the President and the Department Chair are central to the dispute and as a result, they will remain individual respondents in this proceeding for now.

Directions

17I have determined that I will hear the evidence of the applicant with respect to the allegations which remain following the decision in Corbiere. The respondents will have an opportunity to cross-examine the applicant, following which I will evaluate the allegations to determine the next stages in this proceeding. The respondents are not required to prepare witnesses and the applicant is not required to have any further witnesses in attendance. Further directions may be given during the course of the applicant’s testimony if necessary.

18The Registrar will set this matter for a one day hearing by teleconference for the purpose of hearing the applicant’s evidence.

19No later than 14 days before the next hearing date, the applicant will provide the Tribunal and the respondents with a list of documents she intends to rely on during her testimony. The list will include only those documents which are relevant to the allegations not barred by the Tribunal Corbiere.

20I am not seized.