HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
AiLian Ou
Applicant
-and-
Sheridan Institute of Technology & Advanced Learning
Respondent
DECISION
Adjudicator: Keith Brennenstuhl
Date: January 16, 2013
Citation: 2013 HRTO 79
Indexed as: Ou v. Sheridan Institute of Technology and Advanced Learning
APPEARANCES
AiLian Ou, Applicant
Self-represented
Sheridan Institute of Technology & Advanced Learning, Respondent
Brenda Bowlby, 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 ethnic origin, age, as well as reprisal.
2The hearing into this matter was held on October 23, 2012. I heard the evidence of the applicant who had no other witnesses and the evidence of Sarah Carter, one of two witnesses for the respondent college (the “College”). Ms. Carter is a professor at the College, where she teaches a business communication class.
3Following the cross-examination of Ms. Carter, I directed the parties’ attention to Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777, and asked the parties to provide written submissions on whether there was a reasonable prospect that the Application would succeed. While the Tribunal’s Rules of Procedure provide for a Summary Hearing at an early stage of the proceedings, and prior to a hearing, Pellerin states that an adjudicator may assess whether there is a reasonable prospect of success at an appropriate stage of an ongoing hearing. Pellerin states at para. 30:
For all these reasons, I have considered the parties’ arguments in light of the evidence in this case in relation to the question of whether the Application has no reasonable prospect of success. In my view, this question should be considered in light of the evidence that has been heard and that is reasonably expected to be presented. This involves a consideration of whether, in light of the pleadings, witness statements, documents relied upon and evidence that has been heard, there is a reasonable prospect that an applicant can meet his or her burden of proof.
4Following the receipt of the parties’ submissions, I heard oral submissions on January 7, 2013 on whether there was a reasonable prospect of success. This decision addresses that issue.
Background
5The applicant was enrolled at the College in a two year accounting program. The Application relates to events arising during the second semester of her first year commencing in or about March of 2011.
6The applicant was a student in the business communication course. Part way through the course, assignments are required to be done by groups of students who are divided into teams. The teams are expected to work together to complete a group assignment.
7The course uses an online learning management system. It has a number of online communication platforms such as e-mail, discussions and chat. The course outline provides that a percentage of a student’s final mark is based on student participation including posting remarks on the discussion board.
8On March 10, 2011, Professor Carter posted a question referencing how companies give bad news to customers and invited her students to discuss the issue on the discussion board. In response, the applicant posted a comment:
McDonalds Singapore remove pig from the Chinese zodiac collection to avoid offending Muslims (http://blog.dk.sg/2010/01/12/macdonalds-singapore-remove-pig-from-the-cjinese-zodiac-to-avoid-offending-.html). I have made up my mind not to eat McDonalds again upon the news. Their behaviour makes me SICK!!
They decided to please the muslims [sic] at the expense of the Chinese in the first place, because the meek Chinese will never bomb their stores like the Muslims [sic] did in 9/11; and that’s not enough, the muslims [sic] build a victory mosque upon the ashes of the murdered, and the Americans, like McDonald’s say it’s the muslims [sic] right to build the mosque over the ashes of the victims. The victims are dead anyway, who cares!
9That evening Professor Carter saw the applicant’s posting and immediately removed it from the discussion board. She advised the applicant that she had concerns about the contents of her posting. In response, the applicant posted another comment:
Sorry for that post. I understand it. After I posted it, I wondered if I would be bombed or stabbed dead by a muslim [sic] at Sheridan.
I spent 2 years digging into Islam after I was deceived by a muslim in a typical muslim way. Islam is a dead cult. Unfortunately we are surrounded by muslims in Canada. When I was in China, I never met a muslim. All I knew about Islam in China was their big job 9/11 and I was told muslims did not eat pork because their allah was a pig.
The northeastern China [sic] was occupied by muslims, but the government never reported news on muslims. A relative who works in the army of the northeast told me that Muslims [sic] in China had been active in terrorism against the non-muslim Chinese in past decades.
10Subsequently, the applicant raised her voice at her team members in a manner that was disruptive to the class. Professor Carter thereupon asked the four members of the applicant’s team, including the applicant, to join her in the hallway. Once there, Professor Carter told the applicant that she should not be raising her voice in class. The applicant asked whether she could work alone rather than with a team. Professor Carter responded that she could not as the assignment was for a group project. The parties returned to class.
11Following this class, the applicant began to send messages to Professor Carter stating that she refused to work with a certain member of her team because he was telling lies about her and demanded an apology before continuing. The applicant e-mailed Professor Carter:
I do think this team thing can sometimes be unfair and cruel, like rape victims being punished for adultery in Islam while the rapists leading happy life at large, in their Allah’s justice.
12On April 3 the applicant sent Professor Carter a list of questions. Professor Carter advised the applicant that she wanted to meet with the applicant along with Sunand Sharma, the College’s Student Rights and Responsibility Officer, to discuss various issues as Professor Carter had become more concerned at this point with the applicant’s behaviour.
13The meeting took place on April 4. The discussion turned to the issue of the applicant’s difficulty in getting along with other members of her team. It was agreed that if the applicant wished she could complete the group project by herself and submit it as an individual; however, if she did so she would automatically lose 5 marks as a result of her failure to work with a team which was part of the assignment. Apparently, the applicant agreed to work on her own and accepted this condition.
14The applicant alleges in her Application that at this meeting: “Sunand Sharma started commenting about my age as a student at Sheridan, hinting that I was too old to work with young students by saying mature students usually have problems working with young students.” She also alleges: “When I told Sunand Sharam (sic) how my team member lied and slandered me, he told me to learn to work with liars because the Canadian workplace is full of them.” She alleges as well: “At Sarah’s [Professor Carter’s] complaint that I raised my voice when I was slandered by a team member, Sunand Sharma told me to adopt Canadian cultural habits and get rid of my Chinese ones, such as speaking in a loud voice.”
15During the meeting, Mr. Sharma told the applicant that her online comments relating to Muslims were inappropriate and he warned the applicant that she could be subject to serious discipline if she persisted in making such comments on the College’s online system.
16Subsequent to the meeting, the applicant sought to appeal Mr. Sharma’s verbal warning by asking to meet with the Dean of Students. She insisted that she would only meet him at the new Mississauga campus which was not yet open. Consequently there was no meeting.
Decision
17Having considered the parties’ submissions and reviewed the material before me, I find that the Application has no reasonable prospect of success and it is dismissed.
Analysis
Credibility
19The applicant was the only witness called to support the allegations at issue in this proceeding, and her evidence regarding her allegations was disputed by the respondent witness, Professor Carter. As a result, my determination in this matter hinges largely upon my assessment of the applicant’s credibility.
18In making this assessment, I have been guided by the principles established in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.). At pp. 356-357, the British Columbia Court of Appeal stated:
…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 demeanour 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.
19In the instant case, I have several concerns about the reliability of the applicant’s evidence as it relates to her allegations of discrimination on the basis of age, ethnic origin and reprisal. In my view, these allegations are specious and frivolous. It is evident that the applicant is trying to use the Code and her Application as a means of enforcing what she believes is her right to freedom of speech to pronounce anti-Muslim comments including posting such comments on the respondent’s discussion board.
20I come to this conclusion for the following reasons. During the hearing of the Application, despite being repeatedly told by me that the Tribunal would not deal with her allegations regarding her right to make anti-Muslim comments, the applicant persisted in attempting to deal with the issue. The large volume of documents submitted by the applicant for use in the hearing are comprised largely of articles downloaded from the web through which she is attempting to demonstrate that the anti-Muslim statements she made are factual, articles such as: “Killings and Terrorism against Non-Muslims in the Quran”; “Allah turns Jews and Christians into apes and pigs”: “Winston Churchill’s Comments on Islam: Islam is as dangerous in a man as rabies in a dog”;” as well as photographs of niqabi women protesting and bearing signs reading “God Bless Hitler” and “Freedom of Expression is Western Terrorism”. In addition, the applicant’s written submissions largely deal with her belief that “the respondent has abused its authority and deprived the Applicant’s human rights of freedom of expression given by the Code.” In my view, the applicant’s true intention in her Application should be taken into account in assessing her credibility.
Discrimination on the basis of age
21The applicant alleged in her Application that at the April 4 meeting: “Sunand Sharma started commenting on my age as a student at Sheridan, hinting that I was too old to work with young students by saying mature students usually have problems working with young students”. This was the only age related allegation in the Application. The Application does not allege that this had a negative impact on the applicant.
22In her testimony, however, the applicant asserted that Professor Carter punished her for her age when she reduced her mark for the group assignment. In cross-examination the applicant was challenged about this assertion. She conceded that her mark was reduced because she refused to work with the team and in particular one member of the team who she referred to on numerous occasions as a “liar”. She also conceded that if she had continued to work with the “liar”, her mark would not been reduced.
23In my view there is insufficient credible or reliable evidence to establish that the applicant was discriminated against on the basis of age. Accordingly, I find that there is no reasonable prospect that the applicant will succeed on this basis.
Discrimination on the basis of ethnic origin
24The applicant alleged in her Application that during the April 4 meeting:
At Sarah’s complaint that I raised my voice when I was slandered by a team member, Sunand Sharma told me to adopt Canadian cultural habits and get rid of my Chinese ones, such as speaking in a loud voice.
25With respect to this assertion, Professor Carter testified that Mr. Sharma did not at any time tell the applicant to get rid of her Chinese cultural habits and adopt Canadian cultural habits.
26In my view, the evidence of Professor Carter is much more credible than the applicant’s. Professor Carter answered questions directly and in a straightforward manner without embellishment. I accept Professor Carter’s evidence that Mr. Sharma did not make the comments attributable to him by the applicant.
27It was acknowledged by the parties that the applicant did raise her voice in class at her team member who she referred to as a “liar”. The applicant testified that she was told by Mr. Sharma that people do not raise their voices in the workplace and conceded that Mr. Sharma provided good advice in this regard.
28In my view, the allegation that the applicant was discriminated against on the basis of her ethnic origin is not sustainable. There is no evidence that the applicant was subjected to differential treatment based on her ethnic origin. Advice that employees do not raise their voices in the workplace is neither harassment nor discrimination contrary to the Code.
29Therefore there is no reasonable prospect that the Application will succeed on this ground.
Reprisal
30Section 8 of the Code provides as follows with respect to reprisal:
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
31Reprisal under s. 8 of the Code must be reprisal for the assertion of Code related human rights and there must be intention to reprise for that reason. In her written submissions, the applicant appears to suggest that she was “reprised” when she was verbally warned not to make anti-Muslim comments on the College’s discussion board. In my view, this allegation does not meet the Code’s definition of reprisal. Otherwise, there simply are no allegations in the Application that even suggest that the respondent interfered with any right which the applicant had to claim and enforce her rights under the Code during the time covered by the Application.
32Accordingly, there is no reasonable prospect of success based on reprisal.
Abuse of Process and Perjury
33Given that I have dismissed the Application on the basis of it having no reasonable prospect of success, it is not necessary for me to deal with the College’s Request for Order dismissing the Application on the basis of abuse of process. I would point out however, that the applicant’s actions throughout these proceedings have been fundamentally disrespectful of the Tribunal. The applicant has repeatedly refused to comply with express instructions from the Tribunal regarding a number of issues and she had engaged in discourteous behaviour towards the Tribunal.
34The applicant has also alleged that Professor Carter has committed perjury and she has demanded on a number of occasions that I make a finding against Professor Carter to that effect or that I refer the matter to the local prosecutor for perjury charges.
35Perjury is a criminal offense. As a criminal matter, it is not within the jurisdiction of the Tribunal. I would also point out that the applicant has failed to provide credible evidence to support this extremely serious allegation of perjury. In addition I do note, in respect of Professor’s credibility, that she was an exemplary witness. She testified in a frank and truthful manner, was respectful to this Tribunal and on all accounts acted with total professionalism.
order
36The Application has no reasonable prospect of success and is therefore dismissed.
Dated at Toronto, this 16^th^ day of January, 2013.
”signed by”
Keith Brennenstuhl
Vice-chair