Marceau v. Brock University, 2013 HRTO 569

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Marceau Applicant

-and-

Brock University, John Lye, Richard Brown, Luke Speers, Duncan McDonald, Marla Portfilio, Mike Cameron, Edmund Adderley, and Ryan Alexander Moir Respondents

DECISION

Adjudicator: David A. Wright Date: April 8, 2013 Citation: 2013 HRTO 569 Indexed as: Marceau v. Brock University

APPEARANCES

Michael Marceau, Applicant Self-represented

Brock University, Marla Portfilio, John Lye and Richard Brown, Respondents Brenda J. Bowlby, Counsel

Luke Speers, Duncan McDonald and Edmund Adderley, Mike Cameron, and Ryan Alexander Moir, Respondents Leanne E. Standryk, Counsel

Introduction

1The issues in this Application stem from the presentation of a paper at a conference of the Philosophy Club (“Club”) at Brock University. A presenter allegedly stated in his paper that “nigger slavery was beneficial”, that there was nothing wrong with using the n-word, that policies that promote the hiring of racial minorities are reverse discrimination, and that veganism leads to “subtle mental retardation”. The applicant has not named as a respondent the person who presented the paper, but he has alleged that various officials of the Brock University Student Union, the University, and the Club violated s. 1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) by discriminating against him with respect to services because of race. The applicant was not present when the paper was presented, but was a participant in the conference and read the text of the paper. The individual who presented and authored the paper was another student at Brock. While the applicant disputes that this was a proper academic paper, characterizing it as a “rant”, there is no dispute that this was a conference organized for the presentation of academic works by students and that this paper formed part of the agenda.

2The respondents were not required to file a Response. Upon receipt of the Application, the Tribunal directed a summary hearing on the question of whether the Application should be dismissed pursuant to Rule 19A.1 on the basis that it has no reasonable prospect of success. The Case Assessment Direction stated, in part, as follows:

Having reviewed the Application, it appears that the applicant may be unable to prove discrimination by some or all of the respondents. Among other issues, the Tribunal seeks submissions on whether the content of an academic paper presented at a conference falls within the social area of goods, services and facilities in the Code. See, by analogy, Whiteley v. Osprey Media Publishing, 2010 HRTO 1554; Bystrov v. Algonquin College of Applied Arts and Technology, 2011 HRTO 2276. In addition, it appears that the allegations against some or all of the respondents may have no reasonable prospect of success as they may not allege discrimination within the meaning of the Code by the respondents named. In other words, even if the content of the academic paper falls within a social area covered by the Code, there is an issue about whether Brock or the individual respondents engaged in discrimination.

3The summary hearing was held on October 17, 2012. During the teleconference, the Application was dismissed, with reasons to follow, as against John Lye, Duncan McDonald, Ryan Moir, Marla Portfilio, and Richard Brown. I have also concluded that the Application as a whole has no reasonable prospect of success and should be dismissed.

THE RESPONDENTS

4At the relevant time, Mike Cameron was the Chair of the Club, and Ryan Moir was a member of the Club whom the applicant describes as an “authoritative voice” within it. The Club has a charter and by-laws, and is administered and sponsored by the Brock University Student’s Union Inc. (“BUSU”), which is not a respondent to the application. Luke Speers, Duncan McDonald and Edmund Adderley were employed by BUSU: Speers as its president, McDonald as Ombudsman, and Adderley as Club Manager.

5The other individual respondents are employees of Brock University. Marla Portfilio is the Human Rights and Equity Officer, John Lye is Associate Dean of Humanities, and Richard Brown is Chair of the Philosophy Department.

6The applicant argues that Cameron violated the Code because he “vetted” the papers for the conference before they were presented. The allegations that the other respondents violated the Code stem from the applicant’s complaints about the fact that the paper was presented and his attempts to have the author removed from the Club as a result.

7Moir allegedly told the applicant he was not being “philosophically mature” by expressing the concern that racist students were graduating from Brock’s philosophy program. The applicant alleges that Moir violated the Code because he was an authoritative voice, and could have had the author kicked out of the Club but failed to do so. The applicant alleges that Speers, the BUSU President, failed to respond to his communications and failed to direct Adderley, the club manager, to do something about the situation. Adderley allegedly violated the Code by failing to ensure that the author was removed from the Club.

8The applicant alleges that McDonald, who acted as a mediator between the applicant and the Club, “botched” the mediation and discouraged him from insisting on the expulsion of the author from the Club or litigating the issues. Similarly, he alleges that Portfilio sat in on the mediation, did nothing to help him and made the comment, “we live in a racist society”. He says that was an inappropriate suggestion by her that he should relax and accept what happened. He says that Brown and Lye had the authority to discipline the author of the paper, but told him the opposite.

SUMMARY HEARINGS

9The Tribunal’s approach to summary hearings was described as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8-9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing 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 were violated. Often, such cases will deal with whether the applicant can show a link between an event and the alleged prohibited ground. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

10This case is of the first type: whether, assuming the allegations made by the applicant to be true, the Application has no reasonable prospect of success. The fundamental question is whether it is the role of this Tribunal to evaluate the content of academic papers presented at university conferences under the Code, and to find universities or student associations liable for such content or their response to it. I find that this is not something the Code was intended to regulate.

RELEVANT PROVISIONS OF THE CODE AND CHARTER

11Section 1 of the Code, under which the applicant brings this Application, reads as follows:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

12Section 2(b) of the Canadian Charter of Rights and Freedoms provides:

2. Everyone has the following fundamental freedoms:

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

THE CONTENT OF ACADEMIC PAPERS DOES NOT FALL UNDER Section ONE of THE CODE

13The Tribunal has found in a series of cases that the scope of the social areas should be interpreted, where ambiguous, so as not to restrict fundamental freedoms protected by the Charter. This jurisprudence was summarized as follows in Taylor-Baptiste v. Ontario Public Service Employees Union, 2013 HRTO 180 at paras. 31-35:

The Code, of course, does restrict expressive activities. Prohibitions on harassment and discrimination based on prohibited grounds restrict what can be said by one employee to the other in the workplace, by a housing provider to a prospective tenant, or by a service provider to a customer. The Code provides that in the workplace, or when acting in the commercial marketplace as a service provider or landlord, one must respect equality rights and that includes not saying things that constitute harassment and discrimination based on one of the prohibited grounds in the Code. These restrictions, however, do not apply to a person in all aspects of his or her life. What would be sexual or racial harassment contrary to the Code when said in the workplace is not a violation of the Code when expressed across the dinner table at a neighbour’s house. The comment made at the dinner table is no less sexist or racist, but it is not something that can form the basis of an application to the Tribunal.

The boundaries of what falls under the social areas of services, accommodation, contracts, membership in a vocational association and employment are not always clear. An adjudicator must undertake an interpretation of the broad words in the Code to determine, in a contested case, whether this is the type of activity that it regulates. In doing so, the Tribunal must interpret rights broadly, and also undertake a purposive and contextual interpretation of the legislation. The need for a large and liberal approach to the rights in the Code does not relieve those applying it from the difficult task of interpreting its boundaries.

In a series of cases, the Tribunal has applied the well-established principle of statutory interpretation that ambiguities in statutes should be resolved in favour of the protection of Charter rights (Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 at paras. 61-66). In these cases, where the issue was whether the activities in question fell within the relevant social area, the Tribunal has favoured an interpretation under which in cases of ambiguity the Code would not restrict activities at the core of the fundamental freedoms protected by s. 2 of the Charter.

For example, in Whiteley v. Osprey Media Publishing 2010 HRTO 2152, and Bystrov v. Algonquin College of Applied Arts and Technology, 2011 HRTO 2276, the Tribunal held that the content of media editorials and articles did not fall under the protection of the Code, relying on the protection of freedom of expression in s. 2(b) of the Charter to find that the scope of the Code rights claimed did not extend to restrict expression of opinion in the media, a matter at the core of Charter rights.

In Dallaire v. Chevaliers de Colomb, 2011 HRTO 639, the applicant alleged that the inscription on a monument erected by the respondent religious organization on church property was discriminatory under the Code. Holding that the scope of the definition of “service” and “facility” in s. 1 of the Code should be limited in light of the protection of freedom of religion in s. 2(a) of the Charter, the Tribunal found that the inscription was an expression of religious belief that did not fall under the Code. Tesseris v. Greek Orthodox Church in Canada, 2011 HRTO 775, held that in light of the protection of freedom of religion in s. 2(a) of the Charter, teaching, dissemination and religious practice by clergy are not services under the Code.

14In McKenzie v. Isla, 2012 HRTO 1908, the Tribunal applied this reasoning to the context of an academic debate, in light of the fundamental nature of academic freedom. At para. 35, it held as follows:

With respect to academic freedom, it is well-established that courts and tribunals should be restrained in intervening in the affairs of a university in any circumstance where what is at issue is expression and communication made in the context of an exploration of ideas, no matter how controversial or provocative those ideas may be. See Maughan v. UBC, 2008 BCSC 14, aff’d 2009 BCCA 447, leave to appeal ref’d [2009] S.C.C.A. No. 526, at para. 493. However, the principle of academic freedom does not override an organization or person’s obligations under the Code. In other words, academic freedom is not a license to discriminate against another person because of his or her religious beliefs. See Ketenci v. Ryerson University, 2012 HRTO 994, at para. 42. That said, in my view, given the importance of academic freedom and freedom of expression in a university setting, it will be rare for this Tribunal to intervene where there are allegations of discrimination in relation to what another person has said during a public debate on social, political, and/or religious issues in a university.

[emphasis added]

15The links between Charter freedom of expression and academic freedom were commented on by the Alberta Court of Appeal in Pridgen v. University of Calgary, 2012 ABCA 139 at paras. 115-17:

Academic freedom and freedom of expression are inextricably linked. There is an obvious element of free expression in the protection of academic freedom, whether limited to the traditional conception of academic freedom as protecting the individual academic professional, or applied more broadly to promote discussion in the university community as a whole. Interestingly, the protection of free speech on campus is not universally seen as a threat to academic freedom. The United States Supreme Court has linked the two concepts, noting that:

... state colleges and universities are not enclave immune from the sweep of the First Amendment. ... the precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. ... The college classroom, with its surrounding environs, is peculiarly the ‘marketplace of ideas’, and we break no new constitutional ground in reaffirming this Nation’s dedication to safeguarding academic freedom.: Healy v James, 408 U.S. 169 (1972) at 180.

In my view, there is no legitimate conceptual conflict between academic freedom and freedom of expression. Academic freedom and the guarantee of freedom of expression contained in the Charter are handmaidens to the same goals; the meaningful exchange of ideas, the promotion of learning, and the pursuit of knowledge. There is no apparent reason why they cannot comfortably co-exist. That said, if circumstances arise where these values actually collide, a section 1 analysis would be required to properly balance them. That circumstance does not arise in this case.

[emphasis added]

16It follows that the content of an academic paper does not fall within the meaning of “services” under s. 1 of the Code. This conclusion flows from the need to interpret ambiguity in the word “services” in the Code to favour freedom of expression and academic freedom in the writing and presentation of academic papers. The Code is not intended to govern which academic papers are acceptable at conferences or in journals, just as it does not apply to related matters at the core of Charter freedoms such as the content of newspapers and religious teachings. The context of this Application, which relates to the content of academic writings at a student conference, is different from allegations that a student was discriminated against in the provision of educational services by the university, such as in admissions or classes.

17The applicant argues that in light of the Supreme Court of Canada’s holding that restrictions on harmful pornography and hate speech can be justified under the Charter, the Tribunal should interpret the term services in the Code to include the content of academic papers and the response to complaints about them. He cites R. v. Butler, 1992 CanLII 124 (SCC), [1992] 1 S.C.R. 452 in support of this proposition. However, there are two significant problems with this argument.

18First, the Ontario Legislature has chosen not to include an explicit prohibition on hate speech in the Code as in other human rights legislation: see, for example, Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11 and Canada (Human Rights Commission) v. Taylor, 1990 CanLII 26 (SCC), [1990] 3 S.C.R. 892. These cases stand for the proposition that a legislature can decide to prohibit hate speech. They do not mean that a prohibition on hate speech should be read into a general prohibition on discrimination with respect to services when there is no language in the statute that specifically provides for this. Indeed, the failure to specifically include a restriction on hate speech when there are clear models for doing so suggests that the Tribunal should be reluctant to interpret s. 1 of the Code to include such a prohibition.

19Second, as recently emphasized by the Supreme Court in Whatcott, hate speech provisions prohibit only extreme expression that itself exposes others to hatred: see, in particular, paras. 55-59 and 194-202. It is highly doubtful that expression like the paper in question here would be found to be hate speech. At para. 51 of Whatcott, the Court explained:

The distinction between the expression of repugnant ideas and expression which exposes groups to hatred is crucial to understanding the proper application of hate speech prohibitions. Hate speech legislation is not aimed at discouraging repugnant or offensive ideas. It does not, for example, prohibit expression which debates the merits of reducing the rights of vulnerable groups in society. It only restricts the use of expression exposing them to hatred as a part of that debate. It does not target the ideas, but their mode of expression in public and the effect that this mode of expression may have.

20For these reasons, I find that a challenge to the content of an academic paper does not fall within the prohibition on discrimination with respect to services contained in the Code. That is not to suggest that students and faculty have unfettered freedom of expression within universities. However, the Code does not govern when academic writings and conference presentations are acceptable.

THIS APPLICATION HAS NO REASONABLE PROSPECT OF SUCCESS

21The applicant has not named the author of the paper as a respondent. Rather, he has brought the Application against the University and various individuals who were involved in addressing his complaint about the paper.

22The dismissal of the Application follows from the conclusion that the content of academic papers is not a service within the meaning of the Code. The content of the paper and the response of the University, BUSU and their officials to the applicant’s complaints about the paper are not matters covered by the Code, as the Code does not regulate the content of academic discourse within a university. The applicant’s complaints were not about matters covered by the Code so the duty to investigate under the Code does not apply. The Application is outside the Tribunal’s jurisdiction and has no reasonable prospect of success.

23I also emphasize that there was absolutely no basis for most of the individuals to be named as respondents to the Application. The applicant did not like what these individuals did when he complained, but there is nothing he alleges that could be considered discrimination by them or that suggests a failure to investigate as required by the Code. Statements to which one objects, a mediation with which one is dissatisfied, or the failure to take the same position on what the consequences should be for a student accused of misconduct are not discrimination under the Code.

ORDER

24The Application is dismissed.