HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jeffrey McLennon
Applicant
-and-
York University
Respondent
DECISION
Adjudicator: Geneviève Debané
Indexed as: McLennon v. York University
APPEARANCES
Jeffery McLennon, Applicant
Desmond McLennon, Representative
York University, Respondent
Lisa Constantine and Kate McNeill-Keller, 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 with respect to services because of race, colour, ancestry, and reprisal. The respondent filed a Response denying the allegations of discrimination in the Application.
2The applicant was enrolled in his second year at the Schulich School of Business (the “School”) when he filed his Application. At the time of the hearing the applicant had successfully graduated from the respondent, York University (“York”).
3The Application was hand written by the applicant and was not filled out properly. When I quote the applicant in this Decision, I do so using the applicant’s own words. A number of the issues were not included in the actual Application but were referred to in numerous correspondence between the parties which were attached to the Application.
4The scope of the hearing addressed the following allegations of discrimination:
A. That in or around the Fall of 2008, the applicant was excluded from a group project in his MGMT 2000 (the “Management Course”) class because of his race. This course was taught by Professor Linda Lakats;
B. That on or about April 6, 2009, Mavis Lam, a fellow student said to the applicant “we don’t study with Niggers” when he inquired as to whether he could be part of her group for a group assignment in his ACTG 2011 course (the “Accounting Course”). This course was taught by Professor Lewis Cassar. The applicant alleges that the respondent is responsible for the discrimination that occurred, including Ms. Lam’s conduct because the Professors should have assigned mandatory groups in the class. The applicant also alleges that his mid-term exam was marked in a discriminatory manner;
C. That he was subjected to racial profiling and discriminatory comments and false arrest by campus security on or about April 14, 2009 at Schulich’s library; and
D. That the respondent’s decision to close all four files after its investigation is a reflection that “investigators were incompetent, self-serving and/or lazy to say the least”. In essence the applicant alleges that the respondent failed to adequately address and remedy the complaints that were raised by the applicant. During the hearing the applicant took the position that any reference to “Black man” in the investigation was a discriminatory comment.
5There are a number of Interim Decisions and Case Assessment Directions that have been issued by the Tribunal in this matter, including:
A. Interim Decision 2011 HRTO 2128, issued on November 24, 2011 (the “November 2011 Interim Decision”), in which I granted the removal of the personal respondents and directed the applicant to file submissions with respect to whether Ms. Lam had standing to be a respondent;
B. Interim Decision 2012 HRTO 10, issued on January 4, 2012 in which I removed Ms. Lam as a personal respondent after the applicant failed to file any submissions as directed;
C. Reconsideration Decision 2012 HRTO 102, issued on January 16, 2012 in which I denied the applicant’s Request to reconsider the previous Interim Decisions and did not accept the applicant’s assertion that he did not receive Interim Decision 2012 HRTO 2128. I also refused to recuse myself on the basis that there was no reasonable apprehension of bias; and
D. A Case Assessment Direction issued on January 20, 2012, advising that a number of witnesses allegedly summoned by the applicant did not need to attend the hearing until further direction from the Tribunal.
Preliminary Issues
6During the applicant’s opening statement the applicant also took the position that he had been the victim of a reprisal when a member of the respondent’s staff tried to coerce the applicant to withdraw his Application and that he was forced to miss an exam. The applicant also alleged that a letter that was sent by Joanne Rainbow, the respondent’s in-house counsel on December 20, 2010 to Judith Keene, the Vice-chair of the Tribunal who was assigned to mediate the matter (the “Mediator”), was discriminatory and libellous. The applicant also sought to compel a number of witnesses to testify, including Ms. Rainbow, Professor Cassar and someone named only “Eve”. The applicant tried to summons these individuals by leaving subpoenas with an office employee of the respondent on Friday January 20, 2012, three days before the first day of hearing.
7When I asked the applicant why he waited until January 20, 2012, to summons Professor Cassar, who no longer works at York, he advised me that he received the November 2011 Interim Decision removing Professor Cassar in the first week of December 2011, that he was busy as it was the holiday season and that he did not have time to deal with this issue before. I note that this is in direct contradiction to the written submissions that he made when he took the position that he never received the November 2011 Interim Decision as a ground for reconsideration. Though I advised the applicant that he could summons Professor Cassar to the next set of May hearing dates, the applicant ultimately chose not to do so.
8The respondents took the position that the applicant could not expand the allegations in the Application and that it was impermissible for the applicant to rely on communications to the Mediator. Further, Ms. Rainbow, who is in-house counsel for the respondent was acting on behalf of the respondent when she filed the Response and attended the mediation, and that therefore both solicitor-client privilege and litigation privilege apply. Further, the letter she wrote to the Mediator, was in the context of trying to resolve the Application and was protected by settlement privilege and absolute privilege.
9On the first day of hearing I heard submissions and made a number of procedural rulings, including:
A. I refused to expand the Application to include the new allegation of reprisal;
B. I found that the letter written by Ms. Rainbow to the Mediator could not be relied on, or admitted into evidence; and
C. I found that Ms. Rainbow would not be called as a witness.
10I find that it is appropriate for me to provide some written reasons for these oral rulings.
Expansion of the allegations in the Application
11Rule 5.7 states:
Where a party seeks to present evidence or make submissions with respect to a fact or issue that was not raised in the Application, Response, Reply, or in the materials filed under Rule 16 or 17, the Tribunal may refuse to allow the party to present evidence or make submissions about the fact or issue unless satisfied that there would be no substantial prejudice and no undue delay to the proceedings.
12I declined to permit the expansion of the Application to include the issue of reprisal raised by the applicant. The applicant was unable to fully particularize the allegations that he was making at the commencement of the hearing, and in fact, he was making allegations against an individual who had never been identified in the original Application. Though I was prepared to permit the applicant to address issues attached to the various correspondences to the Application, even though they were not particularized in the Application, I was not prepared to permit the applicant to rely on other events that post-dated the Application. I note that the allegations of discrimination in the Application date back to as early as October 2008 and April 2009 and that the applicant never sought to amend his original Application to include any other allegations. Further, this would have necessitated that I grant the respondent an adjournment in order for them to respond to the allegations raised at the hearing and delayed the hearing into the merits of this Application. As such, I determined that it would not be fair, just or expeditious; to permit the applicant to expand the allegations in the Application on the first day of hearing since it would have resulted in substantial prejudice to the respondent and unduly delay the hearing.
The Letter and Testimony of Ms. Rainbow
13On December 20, 2010, Ms. Rainbow sent a letter directly to the Mediator who conducted a mediation on September 9, 2010. This letter was sent to the Mediator for the purposes of assisting with the continued attempt to resolve the Application. The Mediator sent this letter to the applicant. Shortly, thereafter the matter was not resolved and the Application was scheduled for hearing.
14Neither party had a copy of the signed Confidentiality Agreement; however, they all agreed that they signed such an agreement on September 9, 2010. This Agreement states:
We understand and agree that this is a confidential process. Documents provided to you for the purposes of mediation and all statement made during the mediation are without prejudice and cannot be used in evidence before the Tribunal or any other proceeding without the consent of the party who provided the document or made the statement. This does not prevent any party from relying on its own documents used in mediation at the hearing provided they are disclosed and produced to the other parties in accordance with the Tribunal’s Rules.
15In essence the applicant argued that since the letter was sent many months after the mediation that he should be entitled to rely on this letter.
16I found that the letter was not admissible for a number of reasons.
17I do not accept that the Mediation Agreement only covers the communications that are exchanged on the day of the mediation itself. The Tribunal is committed to assisting the parties in resolving Applications, and often will continue to assist the parties to try to resolve the matter after the mediation day. Sometimes the parties will contact the Mediator assigned to the matter for assistance to renew settlement discussions with the other parties. The Mediator assigned to the case can then, assist the parties in continued settlement discussions or with the drafting of Minutes of Settlement. In this case, having reviewed the letter to the Mediator, I find that this was sent to the Mediator for the purposes of her continued efforts to resolve the Application and that this letter was provided for the purposes of an on-going mediation. It is therefore privileged. I also find that this letter was sent for the purposes of trying to resolve the Application and is therefore excluded on the basis that it is settlement privilege. I do not find it necessary given my ruling on the admissibility of the letter, to address the respondent’s argument regarding absolute privilege.
18I declined to hear the evidence of Ms. Rainbow for the reasons that follow. Ms. Rainbow had no direct knowledge of any of the allegations in the Application. She became involved in this matter when she filed a Response and represented her employer in her capacity as in-house counsel. The applicant took the position that she conducted an investigation into the matter, and that he should be entitled to question her with respect to this second investigation. Any investigation that Ms. Rainbow undertook was for the purposes of advising her employer with respect to the Application. As such, I find that Ms. Rainbow is precluded from testifying on the basis of both solicitor-client privilege and litigation privilege.
19For the reasons that follow the Application is dismissed.
The Applicant’s Testimony
20The applicant testified in support of his Application. The applicant advised that he was unable to testify without the assistance of his witness statement because he had difficulty recalling events without its assistance. I permitted the applicant to use this document. The applicant was questioned by his father who acted as his representative.
The Evidence
21The applicant testified that in the Fall of 2008, he advised Professor Lakats that he was having difficulty finding a group in the Management Course because of his race. The applicant testified that Professor Cassar did not properly respond to his complaint of discrimination and that she should have organized the groups herself.
22The applicant testified that in the second semester he was enrolled in Professor Cassar’s Accounting Course and that he paid $600 to $800 dollars for the course. He testified that he approached a fellow student, Mavis Lam, outside of the class either, during the break or after class and that he asked her “Do you have space in your group and can I join your group”. He says that he was being ignored and scorned for reasons that he does not know and that she flipped him off with her hand. Later in the day he says that he saw Ms. Lam leaving the washroom and he approached her to find out why he could not study with her group, and that she replied “We don’t study with niggers.”
23The applicant testified that he complained about this incident and that he was not happy with the way the respondent handled the investigation. The applicant stated that during this investigation one of the witnesses referred to him as a “tall black man” a term to which he objected and believed was discriminatory. He also believes that their witness statements are contradictory.
24The applicant testified that on April 14, 2009, he was in the library on the second floor in the quiet area in a study room between 9 and 11 a.m. in the morning. He says that he felt a hand on his arm and that it was a security officer. He states that the security officer pulled him outside of the study room and there was a second security guard present. The applicant says that the security guard asked him if he knew anything about a stolen laptop. He also says that the security guard asked him, where the laptop is, what have you done with it? The applicant replied “why are you only questioning me there are two other people in the study room”. The applicant testified that the security guard responded that “You black boys are always making trouble”. He said the conversation ended and that he went to pack up his belongings and that he left the study room because his class was soon starting.
25After looking at his witness statement, the applicant stated that he was falsely imprisoned because the security guard put his hands on him and had him in a corner where he was not free to move. The applicant also stated that he was wrongfully detained, subjected to false accusations and accused of stealing the laptop and that his character was assassinated.
26During cross-examination the applicant acknowledged that he had difficulty in recalling events that had occurred almost four years ago and that he did not recall every single detail. Despite repeatedly being questioned about whether or not he included the most important details in his complaint letter in April 20, 2009, the applicant was evasive to the point that he did not answer the question.
27With respect to the Accounting Course, the applicant could not recall whether he had any friends enrolled in the class. Despite repeated questioning, the applicant refused to acknowledge that it is important to join a group in a timely manner. Eventually, the applicant accepted that it may be more difficult to join a group as time passes because the students may not want you to join their group.
28The applicant denied getting the syllabus for the Management Course on the first day of class which identified that there was a group project worth 5% of the grade which was due on October 2, 2008. The applicant does not recall if he tendered this assignment on time.
29The applicant testified that he recalls that he had a conversation with Professor Lakats either during a break or after class in which he discussed that he was having difficulty finding a group, and that he advised her orally that he was having difficulty finding a group because of his race. He could not give any further particulars of when this conversation occurred.
30The applicant did acknowledge that there was the following email exchange between him and Professor Lakats. On Sunday September 28, 2008, the applicant wrote 5:41 p.m.: “hi, professor i can’t find a group for the assignment and i remember you telling us not to do it by ourselves, everyone i asked so far said they have no space. Professor Lakats wrote back the next day, “I assume you are either in my section D or E. I will post a notice on both CMD’s with your name and your contact information. Hopefully that way you will be able to connect with a group.”
31On October 4, 2008, the applicant wrote to Professor Lakats to advise her that he had not found a group and that he hoped that this would be taken into consideration when the teacher was marking his assignment. Professor Lakats responded that he would be “graded on the same scale as everyone else”.
32The applicant testified that he was dissatisfied with the 71% grade that he received and that he sent an email on October 20, 2008, in which he asks for an “urgent meeting” and that his father will be in attendance. Professor Lakats wrote to the applicant proposing a time that she would be in her office and asked the applicant to document his concerns about the assignment in writing so that it could be raised directly with the grader of the assignment. She also advised the applicant that it would not be appropriate for the applicant’s father to be in attendance at the meeting.
33The applicant alleges that he gave Professor Lakats a handwritten note which detailed his concerns with respect to the grade and that he did not make a copy of this document. He said that there was no meeting because he gave her this hand written note.
34The applicant was asked to review the letter of complaint that he prepared on March 31, 2009, in which he appealed the Management Course grade that he received. The applicant was unable to recognize this complaint stating that there was no signature. Eventually, the applicant did confirm that he indeed sent this letter of complaint when he was referred to the identical letter in his materials. In this complaint the applicant states that he kept Professor Lakats at all times aware of his difficulty finding a group and that she had been made aware of this at least 8 days before it was due. He also states that Professor Lakats should have used her “discretion and mark my work based on merits, fairness and not to use circumstances beyond my control to bring down my spirit to suit statistics against those of African descent.” The applicant then states “I was denied cooperation from my peers. It is not clear to me who would benefit by forcing me out of a university by preventing me from having an education. I would like to know if this is what Schulich is famous for if this is what they strive to be famous for discouraging black youth from obtaining a high standard of education by designing ways to bring down their mark.”
35The applicant further complains that he was not graded on the same standard as everyone else, and characterized the process as a form of racial discrimination and that an unfair burden had been placed on him as a person of African heritage. He concludes, “I gave the professor more than 8 days to find me a group, but she chose not to use her powers to put me one. I expect that these injustices will be corrected.”
36The applicant stated that he had kept Professor Lakats apprised of his difficulty in finding a group before he sent her the email on September 29, 2008.
37The applicant confirmed that on May 8, 2009, David Dimick, the Associate Dean, Academic denied the applicant’s grade appeal on the basis that there was no evidence to support the applicant’s allegation that the grader applied a different standard to the applicant or was aware of the applicant’s race. The Associate Dean also dismissed the allegation that Professor Lakats had been made aware that the applicant’s inability to find a group was related to his race.
38On June 2, 2009, the applicant filed a Notice of Appeal. In this Notice the applicant states that the Associate Dean’s decision is highly prejudicial against him, that Professor Lakats failed to organize the applicant into a group, as was her responsibility. The applicant also appealed stating that “the decision maker error in his failure to find that discrimination not only exists in Schulich School of Business and York University but are rampant and are spiralling out of control.” The applicant asks that the decision in the appeal should send a “clear message to discourage laziness in the workplace and to eradicate discrimination from the institution.” The applicant copied the Tribunal on this letter.
39On July 29, 2009, the applicant was denied leave to appeal the Associate Dean’s on the basis that there was no new and relevant evidence nor was there any evidence of a procedural irregularity.
40Counsel for the respondent then cross-examined the applicant with respect to his allegations of discrimination in the Accounting Course.
41The applicant confirmed that a number of emails were sent to and from Professor Cassar. The series of emails with Professor Cassar with respect to the group issue starts on Friday April 17, 2009 when the applicant sends the following email, “Who are the group/s with less than 6 people?” Professor Cassar responds the next day that the applicant is wasting a lot of time by not forming his own group and that the other groups have already been formed for several weeks as he advised very early in the course and that there are no established groups that the applicant can now join.
42On the same day the applicant responds to Professor Cassar that he was in a group, but he believes that all of the members of his group have joined other groups. The applicant then asks Professor Cassar if he can join a group of six students if they are willing to accept him. Professor Cassar responds, “You can try even if that means a group of 7, I will accept that.”
43On April 20, 2009 at 6:13 p.m., the applicant sent Professor Cassar the following email in which he states:
“I do not understand what exactly I am supposed to do. I cannot form my own group because I am the only person without a group. I cannot join another group because every group I asked said no because they said the maximum was six, and they told me to talk to the professor. I cannot force myself into a group, I have come to you every week since the first group was formed and told you that I had no group and you have not been very helpful in facilitating my needs.
I may be responsible for doing my work, but it is your responsibility to put me in a group if I cannot find one, which I cannot. I am not the professor, I don’t have the authority to put myself into a group.
I would like to know how I will be graded since you are expecting me to do the project by myself?”
44The applicant acknowledged in this email exchange he does not raise the issue that he cannot find a group because of his race or any other allegations of discrimination or harassment. He stated, however, that he told this to Professor Cassar during a conversation but could not provide any details about when this occurred.
45Counsel for the respondent referred the applicant to a letter dated April 20, 2009 (which is the same date that he sent Professor Cassar the above email) to the Dean of the School in which he states that he has been “the victim of open discrimination against me by people of Asian descent”. The applicant states, “Everyone who I approached rejected me, those who were Caucasian or white were not discriminating towards to me, they politely explained to me that they had 7 in their group and could not take anyone else. As such I do not feel that the whites discriminated against me. However, the Asians made gestures with their hands to go away and others who are Asian would simply ignore me and would not answer me and in many case they laughed at me and acted as if I had no right to be there”. “Most appalling on one occasion an Asian said to me we don’t study with Niggers.” The applicant also states that he is experiencing discrimination on a daily basis at the School and that Professor Cassar is well aware of the situation because he has complained to him on numerous occasions. This letter ends with “Further, I have reason to believe that I have been discriminated against by certain security personnel on one occasion that occurred on or about Tuesday April 14, 2009.”
46The applicant disagreed that he understood or was made aware that a requirement of the course was that students should be able to work effectively in groups. The applicant acknowledged that the assignment was due on May 11, 2009, but that he was granted an extension because of the complaint that he made.
47The applicant acknowledged that he met with the Associate Dean on April 23, 2009 and that he assisted the applicant in making identifying the student who had made the derogatory comment as Ms. Lam.
48On April 27, 2009, the Associate Dean proposed to the applicant the following compromise. The applicant would have a two week extension to complete the assignment on an individual basis and he would be relieved from making a presentation. The Associate Dean also advised the applicant that if this assignment which was worth 10% of his grade had the effect of lowering his overall grade then it would not be counted towards the final grade. In essence the applicant was protected because the assignment grade would not pull his overall grade down.
49I note that when this proposal was made to the applicant, the Associate Dean had no independent corroboration of the applicant’s allegations, and to some extent they were accepted at face value. The applicant was also granted a further extension to submit the assignment. The applicant received a grade of 81% on the assignment, which was in fact higher than the class average. The grade was also significantly higher than the applicant’s mid-tem exam which was 57%.
50On June 30, 2009, the applicant files another complaint in which he writes that both his mid-term and the assignment in the Accounting Course were marked differently than his peers. He also states that he was forced to do the group project on an individual basis as a result of the “discrimination and racial intolerance that the professor chose to expose me to.” In this complaint the applicant claims that he had no spelling or grammatical mistakes in the entire text. During cross-examination it was clear that there were in fact numerous spelling and grammatical mistakes.
51On September 3, 2009, the Associate Dean denied the applicant’s grade appeal of the Accounting Course. The assignment and the midterm were marked by another instructor which resulted in two lower grades, 75% and 52% respectively. The applicant was permitted to keep the higher grades. The Associate Dean also found that there was no evidence to support that Professor Cassar had been made aware of the discriminatory conduct and he told the applicant that he should apologize to his instructor for having made such an assertion.
52During cross-examination the applicant maintained that Professor Cassar was responsible for Ms. Lam’s alleged conduct because he should have given her a policy with respect to human rights on the first day of class. The applicant also raised at this point that he was referred to as a “tall black man” and “black man” as discriminatory. The applicant also asserted that the Associate Dean was trying to use his power to make him apologize to Professor Cassar which was a form of reprisal.
53The applicant was non-responsive when asked whether or not was appropriate to have regard to physical descriptions for the purposes of identifying a person. The applicant stated that it is discriminatory to rely on any Code grounds to describe an individual, including the sex of the person. In his view, the description should include what the person was wearing and any unusual behaviour. I asked the applicant at the end of his cross-examination about the fact that in his complaints he repeatedly refers to fellow students as “Asians”, “Caucasian or white” and that unlike him, some students were not born in Canada and whether that could imply that his own statements could be interpreted as discriminatory. The applicant stated that he has an Asian brother-in-law and that he certainly did not intend any discriminatory connotations in his complaint. I also asked him why if he believed that the term “black man” is discriminatory; he uses this to describe himself in the complaint. The applicant advised me that depending on the context that it is used the term “black man” could be discriminatory.
54The applicant was asked why he put so little detail in the April 20, 2009 complaint letter with respect to the security incident. The applicant had various responses including that he had an assignment to prepare.
55The applicant met with Elise Amenu, Case Resolution Advisor at the Centre for Human Rights on June 16, 2009 to make a formal complaint during which Ms. Amenu made notes. On June 17, 2009, Ms. Amenu sent the email to the applicant confirming that he had to file a formal complaint against Ms. Lam under York University’s Student Conduct policy.
56On June 24, 2009, the applicant cancelled a follow-up meeting with Ms. Amenu which was rescheduled to June 30, 2009. The applicant did not attend the meeting, nor did he advise Ms. Amenu that he would not be attending the meeting. Meanwhile, this is the same day that the applicant filed his grade appeal of the Accounting Course.
57On July 6, 2009 the applicant wrote to Ms. Amenu, to advise that he was not feeling well and had been in and out of the hospital and attached a complaint letter about Ms. Lam, Professor Cassar, Professor Lakats and Campus Security. This complaint contains no particulars with respect to the discriminatory conduct of these alleged individuals. He advises that if the matter is not satisfactorily resolved he will pursue other recourses.
58On July 7, 2009, Ms. Amenu responded to the applicant that he must come in and sign a written complaint and that he has yet to file a complaint with respect to Ms. Lam. The applicant responded as follows on July 8, 2009, “You have the information with respect to Mavis Lam. I made the complaint about Mavis and others, I expect that you will deal with the matter appropriately. I have to spend my time to do my studies.”
59Ms. Amenu wrote to the applicant on July 27, 2009, advising that if the meeting is not rescheduled within two weeks that she will closing the applicant’s file. On August 4, 2009, the applicant wrote that he would file a comprehensive response when his heavy workload subsides.
60On October 14, 2009, the applicant confirmed that he would attend a meeting with Ms. Amenu, which eventually occurred on October 23, 2009. Also, present at this meeting was Desmond McClennon, acting as an agent. At this meeting the applicant confirmed that Ms. Amenu had prepared a number of statements which reflected her notes from her meeting with the applicant on June 16, 2009 and that the applicant was provided the opportunity to review the statement and to make changes in handwriting. Ms. Amenu then typed out the revised statement and the applicant signed the final version, which Ms. Amenu witnessed.
61With respect to the security incident the applicant states (the portion which is bolded reflects that this was a handwritten addition made by the complaint to Ms. Amenu’s first draft of the statement):
A. I am a student at Schulich and I believe a campus security officer discriminated against me on or April 14, 2009 because of the colour of my skin.
B. I had entered the Schulich Library which is located on the second floor of the Schulich building and as I settled down to conduct research, I felt someone’s hand on my shoulders.
C. I turned around and there was a male security officer who asked me to step outside. Once outside, the security officer enquired if I knew about a missing laptop. I felt his actions robbed me of my freedom and my liberty. I believe this was false imprisonment because it prevented me from doing my studies at the material time. As such, I suffered harm and damage as a result.
D. I was shocked and surprised that the officer pulled only me out of the library for this type of questioning. I responded that I did not know anything about a laptop and asked why he was questioning only me when there are two other students inside the library.
E. At this point, the other security officer proceeded to enter the library again followed by the one who queried me. They then questioned the other two students.
F. I was embarrassed, confused and ashamed. He observed three students in the library at the time of a laptop was allegedly missing yet he chose to single me out to question me.
62The remainder of the statement alleges that the conduct was discriminatory and seeks reparation.
63The other individuals in the room were what the applicant described as an Asian female and an East Indian male. The applicant recalls that the security officers wore vests and wore a badge and that the officer who spoke to him was a tall blond white male. The applicant maintained that he told both of them that the security guard accused him of taking the laptop and that he stated “you black boys are all trouble” to both the Associate Dean and Ms. Amenu the investigator, suggesting that if they did not recall this statement then they “had selective memory”. When asked why he did not include these allegations in the complaint that he signed he stated that Ms. Amenu was pressed for time and told him to keep the complaint to one page only.
64The applicant also confirmed during cross-examination that he was working in a project with Ms. Lam and that he did not complain about this to the Professor who had assigned the group. The applicant also stated that he had trouble distinguishing Ms. Lam from other students.
Professor Lakats’ Testimony
65Professor Lakats testified that the applicant’s group assignment was due on October 2, 2008 and that the students were advised of this in the first few days of the class. The applicant only advised her that he could not find a group in that email four days before its due date. Professor Lakats denied that she was given any other handwritten notes from the applicant or that he raised any issue of discrimination at this time. Professor Lakats noted that a number of groups had already finished the assignment and that she tried to assist him in finding a group by posting his contact information and that she did not know his race when she received his email.
66Professor Lakats testified that the grader who marked the assignment does not know the student’s identities. Professor Lakats confirmed that she never met with the applicant as he had requested, and never received anything in writing from the applicant as she had requested.
67The applicant’s representative focussed his cross-examination on the issue of why she had not permitted him to attend the meeting with his son. Professor Lakats testified that she believes that it is not appropriate that adult students bring their parents to these types of meetings. Professor Lakats also maintained that it was not inappropriate to require students to demonstrate the ability to join or form their own groups.
Associate Dean Dimmick’s Testimony
68Associate Dean Dimmick testified that there are between 1400 to 1500 students enrolled at Schulich. The Associate Dean was forwarded the applicant’s April 20, 2009 complaint letter and he recalls meeting with the applicant in his office on April 23, 2009 for approximately 1 hour. The Associate Dean determined that it was a pressing concern that he assist the applicant in finding an appropriate compromise with respect to the issues in the Accounting Course. Due to timing, the Associate Dean found that it would be impossible to give the applicant the benefit of a group assignment and that he tailored a response that he characterized as a “risk free” assignment. On April 27, 2009 he contacted the applicant to advise that he had obtained student pictures which who met the general description of Ms. Lam and encouraged him to file a complaint against her.
69With respect to the applicant’s allegations that his assignment and midterm had been improperly marked, the assignment was reassigned to another marker and there was no evidence to support the applicant’s theory that the applicant’s grade was not fairly assigned. He did ask the applicant to apologize to Professor Cassar because after his review of the matter he concluded that the applicant had never communicated to the Professor the issue of discrimination as a reason for his inability to find a group. However, this was not a threat or intimidation, and indeed the applicant did not apologize and suffered no adverse consequence.
70With respect to the security incident, Dean Dimmick testified that the applicant never advised that the guard had accused him of stealing the laptop nor that he had said that “you black boys are all trouble” or that he had been falsely imprisoned. He stated that he would have recalled these allegations as they are particularly egregious allegations.
71During cross-examination the Associate Dean maintained that the applicant should apologize to Professor Cassar because there was no evidence to support that he intentionally chose to expose the applicant to discrimination.
The Testimony of Robert Kilfoy
72Robert Kilfoy, the Director of Security testified that he made inquiries and that there exists no report of thefts at the library or that security officers made any investigations at the library on April 14, 2009. Further, there is no officer that fits the description of the applicant working on that day at that time.
73He does have documents that support that in or around that time period there were a number of reported laptop thefts at the library, and specifically a suspected black male, on April 10, and April 23, 2009.He also testified that it would be impossible to spot or observe anyone without relying on the description of an individual which includes sex and skin colour.
74During cross-examination Mr. Kilfoy confirmed that the laptop thief had never been apprehended.
The Testimony of Elizabeth Watson
75Elizabeth Watson, the Head of the Bronfman Business Library testified that around April 2009, there was an increase in reported laptop thefts in the library but that there was no security issue that occurred on April 14, 2009 as alleged by the applicant. Despite the fact that notices were posted throughout the library, students still left their laptops unsecured. For example on April 23, 2009 a student reported that her laptop was stolen by a large African male in his twenties with spiked hair.
76During cross-examination the applicant’s representative accused Ms. Watson of being scared of large black men and of offending him based on the description of the laptop thief. Ms. Watson maintained that she was passing on the general description which was given to her by the student eye witness and that she did not mean to offend anyone.
The Testimony of Ms. Amenu
77Ms. Amenu testified about her involvement in the complaints raised by the applicant and her role into the investigation of these matters. Ms. Amenu works at the University’s Centre for Human Rights, which she characterized as quasi-arm’s length organization since it reports directly to the President of the University.
78Ms. Amenu took contemporaneous notes when the applicant met with her on June 16, 2009. She maintains that the applicant never told her that he was physically steered outside of the library, that he was accused of stealing the laptop or that security stated “you black boys always cause problems”.
79She also said that the applicant did not tell her that he had advised either Professor Lakats or Professor Cassar about the alleged discrimination.
80Ms. Amenu stated that it was very unusual that a complainant would delay in meeting with her to finalize the complaint since most students are very angry and want the matter dealt with immediately. The applicant waited 6.5 month before filling out the student complaint against Ms. Lam. Ms. Amenu testified that she believed that the applicant had abandoned his complaints.
81However, the applicant finally met with her on October 23, 2009 for one to two hours. She stated that the applicant was very gentle during the meeting and said very little, and his father did most of the talking.
82Ms. Amenu denies rushing the applicant or telling him to keep the complaint to one page as there are no set standards.
83Ms. Amenu conducted an investigation into the four complaints filed by the applicant and spoke to Ms. Lam on November 6, 2009. Ms. Lam denied having made the racist comment and stated that she did not know what the term meant at the time. Ms. Lam recalled the applicant asking to join her group and that the applicant was told that they were full. Ms. Lam was surprised about the applicant’s allegation of discrimination because she knew him and in fact was currently working in a group project with him in another course. Ms. Amenu spoke to some of the other students in the group who confirmed that the group was full and did not recall Ms. Lam using the racially derogatory comment. Ms. Amenu was surprised that the applicant had not complained about being forced to work in a group project with Ms. Lam.
84Ms. Amenu stated that there was nothing discriminatory when the witnesses described the applicant as a “tall black man” and that they were trying to be concise and accurate in their observations.
85Ms. Amenu wrote to the applicant to advise him on November 23, 2009, that she would not be proceeding with the complaint against the two Professors because after reviewing the emails she determined, that the applicant never raised that the reason that he could not join a group was for discriminatory reasons. Ms. Amenu advised the applicant that she would continue to investigate the other two complaints.
86Ms. Amenu conducted an investigation into the security incident and determined that there existed no security report with respect to laptops thefts on April 14, 2009, but that there were some records with respect to events on April 21, 2009 which did not indicate any interactions involving the applicant. Ms. Amenu wrote to the applicant on November 26, 2009 to ask him to meet with her and to verify the date of the incident and to discuss the new developments in the investigation. In an email the applicant confirmed that the date of the security incident was April 14, 2009 and that he would not be meeting with her to discuss any new developments or updates and that he wanted any responses in writing. Ms. Amenu testified that she has never had another student complainant behave like this during an investigation and refuse to meet with her.
87On December 14, 2009, Ms. Amenu advised the applicant in writing, after he refused to meet with her in person, that the complaint against Ms. Lam was not substantiated and that she would be closing her file.
88Ms. Amenu wrote to the applicant on December 21, 2009 to advise that there was insufficient information to investigate the security incident and that the file would be closed.
89On December 28, 2009, the applicant wrote to Ms. Amenu advising her that “no cover-up cannot solve the problems’ and “thanks for doing your open and close file moves”. The applicant also advised that he would be moving the matter to the next level of judicial proceeding and file a complaint at the Tribunal.
90During cross-examination Ms. Amenu confirmed that she made all of the decisions with respect to the closing of the four files.
Post Hearing Submissions
91During closing argument I asked the respondents if they were aware of any specific cases with respect to the standard held by educational institutions to respond to allegations of harassment and discrimination raised by students. The respondents did not present me with any cases. After the hearing, counsel for the respondent wrote to advise that there were a number of decisions on this point. I gave the parties the opportunity to address these cases if they wished in written submissions. The applicant has opposed this direction and taken the position that I cannot rely on any of these cases.
92The Tribunal cannot ignore relevant case-law in rendering a decision. Often parties, unfortunately, do not rely on any case during the course of the hearing. This however, does not restrict a decision-maker from relying on the appropriate case-law in rendering a decision. Notwithstanding the applicant’s objection, I have reviewed and considered these decisions in arriving at my decision.
The Law
93The applicant bears the onus of proving that his Code rights have been infringed by the respondent on the balance of probabilities. I note that in this case the applicant has raised allegations against both employees of the University and Ms. Lam a fellow student.
94A University has the duty to adequately address and respond to allegations of harassment and discrimination by students, including allegations of discrimination made against fellow students if these have a direct negative impact on the educational services offered. I find that the alleged discriminatory conduct of Ms. Lam occurred at the University and allegedly had the impact of denying the applicant the ability to join a group on the basis of a prohibited ground and therefore triggered the University’s duty to address and respond to the allegations. It is the responsibility of the University to ensure that it provides educational services to students that are free from discriminatory and harassing conduct.
95I agree with the reasoning in Abdallah v. Thames Valley District School Board, 2008 HRTO 230 at paragraph 87:
The Board acknowledged that, as part of its duty to provide educational services in a manner that upholds the Code, it was obligated to investigate the complainant’s allegations of discrimination. The Board, citing Wall v. University of Waterloo, (1995) 1995 CanLII 18161 (ON HRT), 27 C.H.R.R. D/44 (Ont. Bd. Inq.) and Murchie v. JB’s Mongolian Grill, (2006) 2006 HRTO 33, 58 C.H.R.R. D/280 (HRTO), properly articulated the following six criteria for assessing the sufficiency of a respondent’s efforts to address allegations of discrimination and harassment:
(i) the response must be prompt;
(ii) there must be corporate awareness that the conduct complained of is prohibited;
(iii) the matter must be dealt with seriously;
(iv) there must be a complaint mechanism in place;
(v) the respondent must act so as to provide a healthy environment;
(vi) the respondent must communicate its actions to the complainant.
96Whether the response is adequate to address the discriminatory allegations will depend on the circumstances of each case, and in the context of a University setting could include, the timing of the complaint, the cooperation of the complainant, privacy obligations and the age of the students involved.
97In the decision of Noble v. York University 2010 HRTO 878, the Tribunal describes the legal elements of establishing a claim of reprisal under the Code at paragraphs 3 - 4:
Thus, in a complaint or application alleging reprisal, the following elements must be established:
a. An action taken against, or threat made to, the complainant;
b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and
c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.
In addition, the following principles are relevant:
a. There is no strict requirement that the complainant has filed a complaint or application under the Code, and
b. There is no requirement that the Tribunal find the respondent did in fact violate the complainant’s substantive rights to be free from discrimination.
98I have also considered issue of credibility including, and the decision in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA) where the British Columbia Court of Appeal states at page 356-357:
…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.
99I also considered the factors identified by the Tribunal in Cugliari v. Clubine and Brunet, 2006 HRTO 7, at para. 26: the motives of the witnesses, the relationship of the witnesses to the parties, the internal consistency of their evidence, and inconsistencies and contradictions in relation to other witnesses’ evidence.
Decision
100During the course of the applicant’s testimony which lasted for more than two days, the Tribunal had to caution the applicant repeatedly with respect to his failure to respond to questions posed to him during cross-examination. Often the applicant would say that he did not understand the question and counsel for the respondent would have to repeat or restart an entire line of questioning. Further, on numerous occasions the applicant failed to answer questions when directed to do so by the Tribunal. I told the applicant that if the applicant failed to answer questions and/or comply with the Tribunal’s directives to answer questions that this would go to the weight of his testimony.
101A number of issues arose repeatedly during the applicant’s cross-examination. For example, counsel for the respondent would ask the applicant to turn to documents in the respondent’s Book of Documents, including a complaint letter filed by the applicant. The applicant was either unwilling or unable to identify this document. I asked the applicant to review the document to confirm that indeed it was the complaint that he filed with the respondent. Though he started reading the complaint, he then refused stating that perhaps counsel or the respondent had made changes to the document. I note that this document, indeed all of the correspondence was not controversial or disputed by the parties. I find that the applicant was unable to identify that he had in fact written this complaint. After a number of occasions in which the applicant refused to answer questions based on the respondent’s documents, I advised the parties that we would try to refer to the documents which were included in the applicant’s Book of Documents to avoid any further delay.
102Another example is the applicant’s representative’s repeated objections to questions asked by the respondent during cross-examination which were not proper objections but in fact communicating potential answers to the applicant or actual evidence. I repeatedly counselled both the applicant and his representative about the proper manner in objecting to questions, and that the representative should not communicate to the applicant the answer. The applicant’s representative continued to improperly object to questions, and therefore, I ruled that the applicant would be excused from the hearing room during the objection so that I could determine whether it was an appropriate objection.
103An example of this occurred when counsel for the respondent asked the applicant if he had talked to anyone in his family about the discrimination, specifically, the applicant’s brother. The applicant objected to answering this question on the basis of confidentiality, specifically family confidentiality. I ruled that there was no privilege that attached to the applicant’s communications with his brother. The applicant still refused to answer the question and stated that the applicant, and indeed his whole family had entered into a written contract of confidentiality. At this point the applicant’s representative objected, and I excused the applicant from the hearing room. The applicant’s representative explained that there was no written contract of confidentiality but that it was an oral understanding or agreement that the family would not discuss personal matters outside of the home. I told the applicant’s representative once again that this was not a proper objection to the question and that further he was completely contradicting the applicant’s evidence. When the applicant came back in the hearing room he maintained that there was a written contract which prevented him from answering the question. I directed counsel for the respondents to move to a new line of questioning.
104The applicant was purposefully obtuse and evasive and had difficulty accepting the most basis propositions put to him including, that it is easier to find a group earlier than later and that you would make every effort to include the most relevant information in a complaint. The applicant stated that he could not recall events without the aid of his witness statement and could not even recall when or the year that he wrote this statement. However, he was able to conveniently recall that he wrote a hand written response to Professor Lakats and that he told Professor Cassar about the alleged discriminatory conduct. In light of the applicant’s repeatedly selective memory regarding specific events and his obtuse, evasive and frankly obstructive behaviour while giving evidence in cross examination, I attach little weight to any of his evidence. Given the lack of independent supporting evidence which can corroborate his allegations, the applicant’s testimony was speculative and unsubstantiated by the documentary evidence.
105Conversely, all of the respondent’s witnesses were stellar in their ability to recall events, and indeed were aided by accurate contemporaneous notes and correspondence. When having to make credibility findings on the essential elements related to the allegations of discrimination, I accept, without reservation, the evidence of the respondents over that of the applicant. Further, I have given much weight to the documentary evidence in this case including the emails and letters that were sent at the time that the events arose, which in my opinion, further corroborate the respondent’s evidence.
Decision
Management Course
106I do not accept that the applicant has proven that his inability to join a group in the Management Course was related to his race. The applicant led no evidence to support this bald assertion.
107Further, I find that it is clear from the email communications sent to and from Professor Lakats during the relevant time period that he never advised her of any perceived discriminatory conduct. I do not accept that the applicant gave Professor Lakats a hand written note, this is not consistent with any communication that he has made in the past with any of the respondent’s employees. I also find that his statement in the appeal of this grade, that he kept her apprised of his inability to find a group at all times to be false and that he only notified her four days before his assignment was due.
Security Incident
108I find that the applicant has not established on a balance of probabilities that he was subjected to racial profiling on April 14, 2009. The applicant never stated in any of his complaints that he was accused of stealing the laptop and that he was told “you black boys always cause trouble”. This comment, if true, is a direct act of discrimination by an agent of the school and it is impossible for me to accept that he would not have raised this in his many written complaints or his Application or at any time prior to the hearing. I find that the applicant in his testimony gave an exaggerated and untruthful account of what occurred with respect to the security incident in order to bolster his case.
109I accept the testimony of the Associate Dean and Ms. Amenu that the applicant never gave them this information. I further find that the applicant was not rushed at his meeting with Ms. Amenu in October 2009 and that he had ample opportunity to add this discriminatory comment to his complaint which he failed to do.
110I also do not accept that the applicant was approached on April 14, 2009 by any security officer. There was no reported laptop theft on that day and further though the applicant used the words “on or about April 14, 2009”, he refused Ms. Amenu’s overtures to work with him to determine if this may have occurred on another date.
111Further, I do not accept the applicant’s submissions that the reference to a “Black man”, in trying to describe the personal characteristics of an individual is prohibited by the Code. I also note, that the applicant himself, throughout his complaints, testimony and Application referred to other individuals by their, color, place of origin and sex.
Accounting Course
112I find that the applicant has not established on a balance of probabilities that Ms. Lam denied him the opportunity to work in her group or that she said “we don’t study with niggers”, for the reasons that follow:
A. Ms. Lam allegedly made her comment on April 6, 2009, and the applicant waited over six months to file his complaint against her;
B. During cross-examination the applicant stated that he had difficulty “distinguishing” Ms. Lam;
C. The applicant sent an email on April 17, 2009 to Professor Cassar and did not advise him of the derogatory comment;
D. In his April 20, 2009 email to Professor Cassar the applicant does not advise of the comment and in fact states “I cannot join another group because every group I asked said no because they said the maximum was six”; and
E. On the same day the applicant writes his letter to the Dean complaining about the alleged comment in which he states that he was refused participation in the group on the basis of his race.
113I cannot reconcile the two contradictory statements made on April 20, 2009 with each other. Clearly if one group refused to permit him to join on the basis of his race then the statement that “every group I asked said no because they said the maximum was six” is inaccurate. Further, in the letter to the Dean the applicant states another contradiction “they (the students) politely explained to me that they had 7 in their group and could not take anyone else.” During cross-examination the applicant could not explain why he said that the maximum number of students was 7 instead of 6.
114It is also clear from this exchange of emails that the applicant never raised with Professor Cassar the allegations of discriminatory and harassing conduct and that he has falsely accused him of choosing to expose the applicant to discrimination and racial intolerance. I find the Associate Dean’s suggestion to the applicant to apologize to Professor Cassar to be appropriate and in these circumstances do not amount to a reprisal under the Code.
115Having considered the applicant’s propensity to exaggerate and embellish his evidence and given my previous findings on the applicant’s credibility I find that the applicant has not established on a balance of probabilities that any student refused to be in a group with him because of his race or made a racially derogatory comment.
Grade Appeals
116The applicant has led no independent evidence to support that any of the grades that he appealed in the Management Course and Accounting Course were not meritorious. All of the applicant’s grade appeals were sent to be remarked by an individual who did not know the characteristics of the applicant. There is simply no evidence to support the applicant’s contention that he was marked differently than any of his peers.
The University’s Response
117I find that the respondent adequately and reasonably dealt with the applicant’s allegations of harassment and discrimination. I note that the University has a number of mechanisms in place to respond to allegations of discrimination and harassment all of which were engaged in this process.
118Within days of the applicant’s complaint he had a meeting with the Associate Dean who worked with Professor Cassar to make adjustments to the applicant’s assignment. I find that these adjustments were fair and appropriate in the circumstances. I note that had the applicant raised his issues with respect to the alleged discrimination on April 6, 2009 when it allegedly occurred he could have benefitted from perhaps being included in a group. However, because he delayed making his complaint of discrimination for two weeks, it was impossible, due to timing to include him in a group.
119The University assisted him in trying to ascertain the identity of Ms. Lam and directed him to the University’s Human Rights Centre. Ms. Amenu did not simply open and close a file as alleged by the applicant. Ms. Amenu could have closed her files when the applicant did not attend the meeting on June 30, 2009 but instead, she followed up on numerous occasions to try to engage the applicant in actively participating in pursuing the complaints. Once the complaints were finally filed, she promptly met with the witnesses. However, it is the applicant who disengaged from the process and refused to meet with her or to provide her with any further information. I found Ms. Amenu to be a compelling witness in her description of all of the steps that she had undertaken to investigate the applicant’s complaints. In these circumstances I cannot find that the University failed in its obligation to adequately respond to the applicant’s allegations of discrimination and harassment.
120The Application is dismissed.
Dated at Toronto, this 1st day of May, 2013.
“signed by”
Geneviève Debané
Vice-chair