HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Julie McRoberts

Applicant

-and-

Fanshawe College and Erin Circelli-Russell

Respondents

a n d B E T W E E N:

Julie McRoberts

Applicant

-and-

Fanshawe College

Respondent

A N D B E T W E E N:

Julie McRoberts

Applicant

-and-

Fanshawe College

Respondent

A N D B E T W E E N:

Julie McRoberts

Applicant

-and-

Fanshawe College and Shawn Rutkauskas

Respondents

A N D B E T W E E N:

Julie McRoberts

Applicant

-and-

Bob Clark

Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: June 4, 2013

File Number: 2012-11041-I

Citation: 2013 HRTO 995

Indexed as: McRoberts v. Fanshawe College

APPEARANCES

Julie McRoberts, Applicant

Self-represented

Fanshawe College, Erin Circelli-Russell, Shawn Rutkauskas, Bob Clark, Respondents

Lisa Kwasek, Counsel

INTRODUCTION

1These five Applications were filed under s.34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”).

2Pursuant to Case Assessment Directions dated January 6 and March 22, 2012, the Tribunal directed that a summary hearing be convened pursuant to Rule 19A of the Tribunal’s Rules of Procedure to determine whether some or all of the five Applications should be dismissed on the basis that there is no reasonable prospect that they will succeed. In its Case Assessment Directions, the Tribunal directed that the summary hearing would proceed by way of teleconference and advised the parties that a Notice of Summary Hearing would be sent to them by the Registrar’s office.

3In its Case Assessment Directions, the Tribunal advised the parties that the Tribunal would dismiss all or part of the Applications that it found, following the summary hearing, to have no reasonable prospect of success.

4Given the breadth of the applicant’s allegations, the summary hearing in respect of the Applications took place over three days on May 22, June 26 and July 30, 2012. During the summary hearing, the applicant was given an opportunity to explain how she could prove her allegations that the respondents in her various Applications had infringed her rights under the Code. Following the July 30, 2012 hearing, the parties were also given the opportunity to make written submissions on whether the documents attached to the applicant’s July 12 and 13, 2012 Requests for an Order during Proceeding assisted the applicant in establishing that the allegations in Tribunal files 2012-11000-I and 2012-11041-I had any reasonable prospect of success.

5For the reasons that follow, with the exception of part of the reprisal claim in Tribunal file 2012-11041-I, I find that the Applications have no reasonable prospect of success. The Applications in Tribunal files 2011-10327-I, 2012-10966-I, 2012-10994-I and 2012-11000-I are dismissed accordingly; as are the claims in Tribunal file 2012-11041-I that the respondent in that case discriminated against the applicant because of sex, age and/or disability and reprised against the applicant for refusing to infringe another person’s rights under the Code.

OVERVIEW OF APPLICATIONS

6The applicant was enrolled as a student in the respondent College’s Hospitality and Tourism Program. As part of that program, the applicant took an Advanced Food Preparation class taught by Erin Circelli-Russell from October to December 2011. In November 2011, the applicant filed a human rights Application against Fanshawe College and Circelli-Russell alleging that she had experienced discrimination on the basis of sex and disability while enrolled in Circelli-Russell’s Advanced Food Preparation class (Tribunal file 2011-10327-I).

7On February 24, 2012, the applicant filed another human rights Application against Fanshawe College alleging that she had been discriminated against because of disability and reprised against for filing the Application in Tribunal file 2011-10327-I by her instructor in another course, Robert McGregor (Tribunal file 2012-10994-I).

8On February 21, 2012, the applicant was served with a Notice of Interim Suspension, advising her that she was suspended from the College on an interim basis, pending the investigation of allegations that the applicant had engaged in misconduct contrary to the College’s Student Code of Conduct. On February 21, 2012, the applicant filed a human rights Application against the respondent College alleging that the fact and manner of delivery of the Notice of Interim Suspension constituted reprisals against the applicant by the campus security office for having made allegations against a campus security officer in Tribunal file 2011-10327-I (Tribunal file 2012-10966-I).

9On February 26, 2012, the applicant filed a human rights Application alleging that the manner in which campus security’s receptionist and Operations Manager handled the applicant’s February 23, 2012 inquiries and/or complaints about the issuance of the Notice of Interim Suspension constituted reprisal and discrimination because of disability (Tribunal file 2012-11000-I).

10Finally, on March 6, 2012, the applicant filed a fifth human rights Application against the College’s Code of Conduct Administrator, Bob Clark, alleging that the allegations that the applicant had engaged in misconduct contrary to the Code of Conduct and Mr. Clark’s investigation into the applicant’s alleged misconduct were discriminatory and constituted reprisals against the applicant contrary to s. 8 of the Code.

REQUESTS TO AMEND

11In addition to the five Applications, the applicant filed 17 Requests for an Order during Proceedings (“RFOP”) in respect of the Applications. Although in a few of these the applicant was merely seeking to submit documents or caselaw upon which she wished to rely at the summary hearing, many of them contained additional factual allegations against the respondents. For the most part, the respondents did not object to the applicant’s various Requests and I have considered them in determining whether the Applications have any reasonable prospect of success. The parties were aware of this during the summary hearing and had a full opportunity to make submissions with respect to the RFOPs.

12The respondents did initially object to one particular Request to amend the Application in Tribunal file 2011-10327-I. Specifically, on May 22, 2012, the first day of the summary hearing in this matter, the applicant took the position that she had delivered and filed an RFOP on January 1, 2012, seeking to amend her Application in Tribunal file 2011-10327-I to include certain allegations regarding events that allegedly occurred in October, November and December 2011. However, a detailed search of the Tribunal’s records revealed that no such Request was ever filed by the applicant. Moreover, the respondents’ counsel confirmed that no such Request was ever delivered to the respondents. Accordingly, on May 22, 2012, the applicant “resent” a copy of the RFOP that she maintains she originally attempted to file in January 2012 (“the May 22, 2012 RFOP”). Following this, I issued a Case Assessment Direction directing the parties to be prepared to make submissions, when the summary hearing reconvened, with respect to whether the applicant ought to be permitted to amend her Application in Tribunal file 2011-10327-I to include the allegations in her May 22, 2012 RFOP. I also directed the parties to make submissions on whether the applicant had a reasonable prospect of proving that the respondents had infringed her rights under the Code in the manner alleged in the May 22, 2012 RFOP. When the summary hearing reconvened, the respondents did not pursue their earlier objection to the May 22, 2012 RFOP and agreed that the allegations contained therein could be considered as part of the Application in Tribunal file 2011-10327-I.

13The respondents do object to the applicant’s October 9, 2012 RFOPs, seeking to amend her Applications in Tribunal files 2011-10327-I, 2012-10966-I, and 2012-11041-I to include allegations regarding a Facebook conversation between the applicant’s sister and the girlfriend of a faculty member at the respondent College (who is not a respondent in any of the Applications). The applicant submits that the conversation establishes that the faculty member in question told his girlfriend that the applicant had “put a lot of the teachers in the College in awful positions”. The respondents take the position that the applicant’s October 2012 Requests to amend her Applications ought not to be considered until after the Tribunal has decided whether some or all of the Applications ought to be dismissed as having no reasonable prospect of success. In the circumstances, however, it is not necessary for me to decide the point at which the October 2012 RFOPs ought to be considered. This is because, having reviewed the Requests, I agree with the respondents that the allegations in the October 2012 RFOPs do nothing to assist the applicant in proving that the respondents in Tribunal files 2011-10327-I, 2012-10966-I, and 2012-11041-I discriminated and/or reprised against the applicant.

14Likewise, having carefully considered the materials before me and the parties’ submissions, I find that the applicant’s March 30, April 23, April 30, May 1, May 3, and May 6, 2012 RFOP’s in Tribunal file 2012-11041-I do not assist the applicant in proving that the respondent in that case discriminated or reprised against the applicant. The applicant raises various issues in these RFOPs. For example, the applicant complains about March 2012 Twitter messages from two unidentified individuals, one stating that the applicant had been suspended for making many false allegations, and another referring to the applicant as emotionally unstable. She also raises concerns about the fact that a campus security brochure on “Women’s Campus Safety” contains an incorrect telephone number. In her May 1, 3 and 6, 2012 RFOPs, the applicant also contends that emails from the College’s Registrar’s Office explaining that the delay in responding to the applicant’s March 2012 request for tax information was due to the request having been sent to an inactive email address; initially misinforming the applicant that the tax form she sought could be accessed by her online; and then apologizing for the error and advising that the applicant’s tax form would be sent to her by email and regular mail were “abusive, bullying, harassing and an attempt to blame the victim”. In my view, none of the allegations in the above-noted RFOPs advance the applicant’s claim that Bob Clark, the respondent in Tribunal file 2011-11041-I, discriminated or reprised against her. Accordingly, except as addressed above, I do not propose to deal with the above-noted RFOPs in determining whether the Application in Tribunal file 2012-11041-I has any reasonable prospect of success.

15I also agree with the respondents that the documents submitted with the applicant’s July 12 and 13, 2012 RFOPs do not assist the applicant in establishing that the respondents in Tribunal files 2012-11000-I and 2012-11041-I infringed her rights under the Code in the manner alleged in those Applications. The fact that the Ontario Student Assistance Program placed the applicant on academic probation as a result of her suspension is not relevant to the issue whether the suspension itself was discriminatory or constituted a reprisal. Nor does the fact that the Ministry of Training, Colleges and Universities could not deal with the applicant’s complaints about the respondents assist the applicant in establishing that the respondents in Tribunal files 2012-11000-I or 2012-11041-I infringed the applicant’s rights under the Code in the manner alleged in those Applications.

16Finally, I must dismiss the allegations contained in the applicant’s April 30, 2012 RFOP in Tribunal file 2011-10327-I as having no reasonable prospect of success. In that RFOP, the applicant complains that Colin Hill, a faculty member of the Hospitality and Tourism Department, said hello to the applicant when he ran into her at a Jumbo Video and then remarked to his female companion that the applicant had been causing trouble at the College, so “she had to go”. Even if Mr Hill’s remark was “slanderous”, as the applicant contends, it is not a basis upon which the Tribunal could find that the respondents in Tribunal file 2011-10327-I discriminated against the applicant because of her sex and/or disability or otherwise infringed her rights under the Code.

TRIBUNAL FILE 2011-10327-I

17In this Application, filed on November 23, 2011, the applicant alleges that the respondents, Fanshawe College (“the College”) and Erin Circelli-Russell, discriminated against her because of sex and disability with respect to educational and training services.

Background

18This Application relates primarily to alleged mistreatment of the applicant by Circelli-Russell, the instructor in the applicant’s Advanced Food Preparation course, which ran from October to December 2011 and which required students to produce items from a set menu for service to public in the College restaurant.

19In this Application, the applicant alleges that, during the period from October to December 2011, the respondents discriminated against her because of sex and/or disability in the following ways:

a) On October 12, 2011, when Instructor Circelli-Russell allegedly instructed the applicant to add more dressing to a salad that she was making by telling the applicant to give it “a bit more hooch sauce”. (This allegation was contained in the May 22, 2012 RFOP.)

b) “Previously in the course”, when the applicant refused to participate in activities which were hazardous to her safety and Instructor Circelli-Russell “made derogatory comments about [the applicant’s] handicap and how [the applicant] must already know of the dangers as she does not believe that [the applicant] was born with [her] disability but that [her] disability is the result of some gore-story and is of [the applicant’s] own doing.” (This allegation was contained in the May 22, 2012 RFOP.)

c) On or about November 2, 2011, when Instructor Circelli-Russell gave the applicant a zero grade for one of her weekly labs in the Advanced Food Preparation course because the applicant had not attended the lab, even though the applicant had given advance notice that she could not attend due to illness.

d) On October 26 and November 9, 2011, when Instructor Circelli-Russell allegedly yelled at the applicant for being too slow and questioned why the applicant did not know how to do certain things, even though it was allegedly the instructor’s failure to provide complete recipes and/or proper instruction that caused any problems the applicant had completing the tasks in question;

e) On November 9, 2011, when Instructor Circelli-Russell allegedly instructed the applicant to put knives on a tray, which was unsafe, in an angry tone of voice;

f) On November 9, 2011, when Instructor Circelli-Russell allegedly yelled at the applicant to leave class when the applicant told the Instructor to stop belittling her and that she did not like the instructor’s attitude;

g) On November 17, 2011, when another instructor, filling in for Circelli-Russell, allegedly gave the applicant a low grade in her weekly lab on the stated basis that the applicant was late for class and needed to work on organizational skills and being more productive. The applicant maintains that she was not late and in fact performed above and beyond expectations during the lab in question;

h) During a November 28, 2011 meeting with the applicant and Department Chair, Jeannine Cookson, when Instructor Circelli-Russell allegedly stated that the applicant had not submitted the proper documentation to get into the Advanced Food Preparation class and suggested that the applicant was not at the required level to be in the class (the applicant was permitted to transfer into the second year of the program and the Advanced Food Preparation class based on culinary training she had had elsewhere); and

i) On December 7, 2011, when Instructor Circelli-Russell allegedly failed to reprimand another student who “stole” the applicant’s knife (from the dishwasher). (This allegation was contained in the May 22, 2012 RFOP.)

Discrimination based on Sex and/or Disability

20As I explained during the summary hearing, the Tribunal’s power to hear and determine human rights Applications is based on the Code, which, among other things, prohibits discrimination with respect to services on the basis of the grounds set out in the Code. The Tribunal does not have the power to remedy mistreatment which is not based on a prohibited ground in the Code. Thus, in order to succeed in her Application, the applicant would have to prove not only that she was mistreated by the respondents, but that such mistreatment was linked to the applicant’s sex and/or physical disability. (The applicant indicated during the summary hearing that she was born without a left hand).

21In my view, the applicant has no reasonable prospect of proving that any of the alleged mistreatment complained of in this Application was linked to her sex and/or disability.

22I will deal first with the allegations that Circelli-Russell made explicit discriminatory comments to the applicant.

23The applicant alleges that Circelli-Russell discriminated against her based on sex when she told the applicant to give a salad “more hooch sauce”. The applicant contends that “hooch” is a derogatory term for women, particularly Southeast Asian women. During the summary hearing, the applicant stated that the Food and Beverage Co-ordinator, Mr. Chambon, knows that the applicant taught in Southeast Asia for a few years. She submits that she “believes” that Circelli-Russell’s use of the word “hooch” was “an attack” against her based on her previous occupation as an ESL instructor.

24This allegation has no reasonable prospect of success. First of all, the applicant acknowledged during the summary hearing that she has no evidence that Circelli-Russell knew that the applicant had taught English in Southeast Asia. In any event, even if she did have such knowledge, it would not assist the applicant in establishing that, in referring to “hooch sauce”, Circelli-Russell was degrading women.

25In my view, it is far more likely that, if Circelli-Russell did indeed refer to salad dressing as “hooch sauce”, she was using the term “hooch” as a common slang term for alcohol or something along those lines. (The Concise Oxford Dictionary of Current English, 8th ed, (Oxford: Clarendon Press, 1990), defines “hooch” as a colloquial term for “alcoholic liquor, esp. inferior or illicit whisky”). In any event, assuming without finding that the applicant is correct that “hooch” is sometimes used as a derogatory term for women in general or Southeast Asian women in particular, in this case, there is no basis upon which the Tribunal could conclude that Circelli-Russell was using the word in that sense when she spoke to the applicant.

26The applicant also alleges that Circelli-Russell made derogatory remarks about the applicant’s disability by stating that she believed that the applicant’s disability was the result of some “gore-story” of the applicant’s own doing (para 19(b) above). Based on the applicant’s submissions during the summary hearing, I find that she has no reasonable prospect of establishing that such a remark was made.

27On the first day of the summary hearing, May 22, 2012, the applicant submitted that, in December 2011, she overheard Instructor Circelli-Russell tell another chef in the kitchen that “no one with a disability ever ends up working in a kitchen, unless it’s in the dish pit.” At that time, the applicant stated that that was the only derogatory disability-related comment that she ever heard Circelli-Russell expressly make.

28This was very different from what the applicant said on the third day of the summary hearing, July 30, 2012. At that time, while replying to the respondents’ submissions, the applicant alleged that, on or about December 12, 2011, she heard Circelli-Russell “mumble” to herself, “She probably lost it in an accident. I’d like to hear the back story on that.” According to the applicant, when she made this statement, Circelli-Russell was surmising that the applicant had lost her hand by doing something stupid or unsafe.

29In addition, contrary to her initial statement that she overheard Circelli-Russell tell another chef that “no one with a disability ever ends up working in a kitchen, unless it’s in the dish pit”, on the third day of hearing, the applicant stated that she overheard Circelli-Russell say to herself (and not another chef), “She doesn’t need recipes anyway. It’s not as though she would end up in the kitchen.”

30In my view, the obvious inconsistencies in the applicant’s allegations about what Circelli-Russell said undermine any reasonable prospect of the applicant proving that Circelli-Russell stated that the applicant’s physical disability was the result of “some gore-story”. I do not see how the applicant can establish that Circelli-Russell made the derogatory statement attributed to her in the May 22, 2012 RFOP given the applicant’s submission, on the first day of hearing, that Circelli-Russell only ever made one derogatory disability-related comment, i.e. the “dish pit” comment, which is completely unrelated to the “gore-story” allegation. This is particularly so in light of the fact that, other than herself, the applicant does not propose to call any witnesses to attest to the fact that Circelli-Russell made the derogatory remarks.

31As for the “dish pit” comment, I note that this does not even form part of the allegations set out in the Application or the May 22, 2012 amendment to the Application. The respondents submit and I agree that it is therefore not properly considered in determining whether the Application has any reasonable prospect of success. In my view, having already permitted the applicant to amend her Application to include the allegations in the May 22, 2012 RFOP, it would be unfair to the respondents to permit the applicant to continue to expand the scope of her Application by adding further allegations during the summary hearing.

32In any event, even if I were to consider it, I would not find that the applicant had a reasonable prospect of success in proving that Circelli-Russell discriminated against her because of disability when she was allegedly overheard saying to herself that the applicant did not need recipes anyway, because she was not going to end up in the kitchen. The applicant acknowledges that there was a dispute between her and Circelli-Russell over whether the recipes that Circelli-Russell had provided for the course were sufficient. Whereas the applicant felt that the recipes ought to have included methodology and plating instructions, Circelli-Russell took the position that the “bare bones” recipes were adequate for the advanced class; and that the problems the applicant was having in her class were due to the fact that the applicant had been permitted to enrol in the second year class without the necessary foundational knowledge. Against that backdrop, even if Circelli-Russell did say something to herself about the applicant not ending up in the kitchen, I do not think that the applicant would have any reasonable prospect of establishing that the comment was based on her disability as opposed to Circelli-Russell’s perception about the applicant’s lack of skill in the kitchen.

33For the above reasons, I find that the applicant has no reasonable prospect of proving that Circelli-Russell discriminated against her by making derogatory disability-related remarks.

34In her Application, the applicant complains that Instructor Circelli-Russell singled her out for harsh treatment – by imposing unreasonable expectations on her, by yelling at her, and by failing to discipline another student who mistreated the applicant. However, aside from the one alleged “gore-story” comment, which I have found that the applicant has no reasonable prospect of proving, there are no facts alleged in this case that would allow the Tribunal to conclude that such alleged harsh treatment was based on the applicant’s sex and/or disability. Indeed, insofar as the applicant contends that she was the only student targeted for hostile and aggressive behaviour, as compared to the other woman in her class, the applicant’s own allegations tend to disprove that the mistreatment she complains of was based on sex.

35As for the applicant’s allegation that the zero grade she received from Circelli-Russell for missing a lab was discriminatory, I note that, according to the respondent’s November 28, 2011 letter to the applicant, all approved absences are recorded as zero but do not impact the final grade for the student. The final grade is based on an average of labs achieved, not including those missed on account of approved absences. During the summary hearing, the applicant acknowledged that the respondents claimed that the issue of her weekly lab grades had been sorted out. She did not point to any evidence during the summary hearing that could contradict the respondent’s explanation about how the zero grade came to be.

36In any event, there are no facts alleged in this case that could allow the Tribunal to conclude that the zero grade she received from Instructor Circelli-Russell or the low grade she received from another instructor on November 17, 2011, were linked to the applicant’s sex and/or disability. In order to succeed in her discrimination claim, the applicant would have to establish not only that she was unjustly graded, but also that she received such unjust grades “because of” her sex and/or disability. There are simply no facts alleged in this case that would allow the Tribunal to come to such a conclusion. (Moreover, to the extent that the applicant seeks to argue that her low grade on the November 17, 2012 lab constituted a reprisal within the meaning of s.8 of the Code, this allegation has no reasonable prospect of success. There are no facts alleged that if true would allow the Tribunal to find that the applicant’s November 17, 2012 grade was linked to her engaging in any of the protected activities identified in s.8 of the Code.)

37In her Application and during the summary hearing, the applicant explained what she sees as the link between the respondents’ alleged actions and her sex and/or disability. According to the applicant, she is more physically attractive than Instructor Circelli-Russell. She submits that Circelli-Russell is jealous of her because of that and that is the reason she mistreated the applicant. The applicant alleges that Instructor Circelli-Russell was also jealous of how talented the applicant was, despite her physical disability, and mistreated her for that reason. In this way, the applicant submits that the respondents’ mistreatment of her was based on the applicant’s sex and/or disability and was therefore discriminatory.

38Even if treating someone in a disadvantageous manner because of his or her physical attractiveness and/or superior skills could constitute discrimination on the basis of sex and/or disability (which is not clear), in my view, the applicant has no reasonable prospect of proving that the respondents mistreated her for these reasons. The applicant makes a bald assertion that Circelli-Russell felt jealous of her and mistreated her for that reason, but the applicant does not allege any facts that would allow the Tribunal itself to conclude that that was the case.

39The applicant alleges that Circelli-Russell was aggressive and hostile towards the applicant after a particular male instructor dropped by the restaurant and was kind and friendly to the applicant. She submits that this shows that Circelli-Russell was jealous of her and that she was mistreating her accordingly. However, I cannot agree. Even if this allegation is true, in my view, it is an entirely insufficient basis, taken on its own or with the applicant’s other allegations, for the Tribunal to infer that Circelli-Russell was jealous of the applicant or singled her out for harsh treatment because of her sex and/or disability.

40Although the applicant complains in her Application about the Chair of her department, Jeannine Cookson, it is not clear that she is alleging that Ms Cookson infringed her rights under the Code. However, to the extent that she does seek to make such an allegation, I find that it has no reasonable prospect of success. The applicant contends that Ms Cookson delayed in responding to the applicant’s internal complaint about Circelli-Russell’s alleged “aggressive” behaviour towards her on the stated basis that she had not checked her email and/or had assumed that the situation had resolved itself; and then gave a “very feeble” response that did not adequately address the complaint. The applicant also complains that, on one occasion, Ms Cookson mocked the applicant’s claim that she needed to be escorted to Circelli-Russell’s class by campus security because she felt physically threatened by Circelli-Russell. Again, even if these allegations are true, there are no facts alleged that would allow the Tribunal to find that Ms Cookson’s conduct constituted discrimination based on sex and/or disability or otherwise infringed the applicant’s rights under the Code.

41In sum, I find that the Application has no reasonable prospect of success. It is dismissed accordingly.

TRIBUNAL FILE 2012-10994-I

42In this Application filed on February 24, 2012, the applicant alleges that another instructor at the College, Robert McGregor, discriminated against her on the basis of disability and reprised against her contrary to the Code.

Discrimination because of Disability

43Instructor McGregor was the applicant’s instructor in a course “Behind the Bar”, part of which involved teaching students how to perform “flips and tricks” with empty liquor bottles.

44The chief complaint in the Application appears to be that Instructor McGregor was negligent on January 26, 2012 when he allowed a roomful of inexperienced adult students to have access to empty liquor bottles. The applicant alleges that two such students were “playing” with the empty bottles and that, as a result, one of the bottles hit and bruised the applicant’s knee.

45The next day, on January 27, 2012, the applicant complained to Instructor McGregor that the “unsafe conditions” in his class led to her being “severely harmed”. The applicant complains that, even after he was apprised of what had occurred, Instructor McGregor showed no remorse for his role in the “assault” she experienced on January 26, 2012 (i.e. by not supervising the room and by failing to give students proper instruction.)

46In my view, the applicant has no reasonable prospect of establishing that the above-noted incident constituted an infringement of her rights under the Code, either by the respondent college or by Instructor McGregor. The Tribunal has no jurisdiction to deal with the applicant’s claim that Instructor McGregor’s class was unsafe, that he was negligent, or that the applicant was physically assaulted by her fellow students. Rather, and as noted above, the Tribunal’s jurisdiction is limited to dealing with allegations that the applicant was discriminated and/or reprised against on the basis of a prohibited ground under the Code. In this case, there are no alleged facts or any basis upon which the Tribunal might find that the manner in which Instructor McGregor conducted the January 26 class or reacted to the applicant’s January 27 complaint about it was discriminatory or constituted a reprisal against the applicant.

47During the summary hearing, the applicant also alleged that Instructor McGregor discriminated against her because of disability when he approached the applicant during a February 8, 2012 class, when the applicant was practicing tossing bottles, and asked, “Is that all you can do?” The applicant contends that this question belittled her because of her physical disability.

48Although I can understand why the applicant might have been upset at this question (assuming without finding that it was asked), in my view, she has no reasonable prospect of proving that this question was discriminatory in the circumstances of this case. Documents submitted by the applicant indicate that Instructor McGregor pushed all the students in the “Behind the Bar” class to go beyond replicating the bottle-tossing routines that he had taught them and to push themselves to come up with their own routines. In fact, the applicant indicates that Instructor McGregor told students that this is what was required in order to achieve an “A” grade in his class. Against that backdrop, the mere fact that the applicant’s instructor essentially asked her if she could do more than she was currently doing is not a basis upon which to find that Instructor McGregor treated the applicant in a differential and disadvantageous manner because of her disability, which is what a finding of discrimination would require. This is particularly so since the applicant concedes that when she told Instructor McGregor during the first class that there were certain things that she would not be able do because of her physical disability, he said, “OK. No problem.” I am inclined to agree with the respondent that, in the circumstances, the inference to be drawn is that Instructor McGregor was encouraging the applicant to push her own boundaries, as he was doing with the class as a whole, as opposed to belittling the applicant because of her disability.

49The applicant also alleged that Instructor McGregor treated her as a “subhuman” and discriminated against her because of disability by allegedly having other students mistreat the applicant. In particular, the applicant referred to a class on whiskey, where, according to her subsequent complaint to the instructor and the department chair, the applicant “had to redirect” Instructor McGregor to the course material because he was “veering off the curriculum” by talking about Huron County and his own business ventures. The applicant alleges that other students in the class reacted to her comments by getting angry at her and “grumbling”. She asserts that Instructor McGregor was somehow responsible for this reaction. I cannot agree. Aside from a bald assertion, there are no facts alleged that would allow the Tribunal to conclude that Instructor McGregor was somehow responsible for other students’ reaction to the applicant chastising their instructor for going off topic. In any event, even if the applicant could establish that Instructor McGregor was somehow behind her fellow students’ treatment of her, there are no facts alleged that, if true, would allow the Tribunal to conclude that the alleged mistreatment was linked to the applicant’s disability.

50For the above reasons, the applicant’s allegations that the respondent College and/or Instructor McGregor discriminated against her because of disability are dismissed as having no reasonable prospect of success.

Reprisal

51I now turn to the applicant’s allegation that the respondent and/or Instructor McGregor reprised against her contrary to s.8 of the Code. The applicant alleges that Instructor McGregor reprised against her when he gave the applicant a low grade on one or more quizzes; and when he told the class, “Suck it up, princess” on February 15, 2012, while making eye contact with the applicant.

52In order to succeed in a claim of reprisal under the Code, the applicant would have to establish that the respondent did something with the intention of retaliating against her for claiming or enforcing his rights under the Code; instituting or participating in proceedings under the Code; or refusing to infringe another person’s rights under the Code: Noble v. York University, 2010 HRTO 878.

53In her Application, the applicant pleaded that Instructor McGregor reprised against her for instituting a proceeding under the Code, namely the Application in Tribunal file 2011-10327-I that was filed by the applicant in November 2011. Specifically, the applicant pleads in her Application that the Tribunal’s Case Assessment Direction(s) “questioning the legitimacy” of the applicant’s human rights complaints, basically emboldened Instructor McGregor to “punish” the applicant for having filed the Application in Tribunal file 2011-10327-I. In my view, the applicant has no reasonable prospect of establishing this.

54During the summary hearing, the applicant acknowledged that she had no way of proving that Instructor McGregor’s alleged retaliatory conduct was connected to the filing of her November 2011 human rights Application or that he even knew about the Tribunal’s Case Assessment Directions. (The applicant acknowledged during the summary hearing that she is not in a position to challenge the respondents’ evidence that Instructor McGregor knew nothing about the Tribunal’s Case Assessment Directions.) The applicant submits that, as a faculty member, Instructor McGregor must have known about her human rights complaint against Circelli-Russell. That may be. However, the mere fact that Instructor McGregor knew about the human rights Application is not a basis upon which the Tribunal might conclude that he gave the applicant a low grade or made the “princess” remark with the intention of punishing the applicant for filing the Application. I agree with the respondent that the applicant’s reprisal claim is really based upon mere speculation, which is insufficient to ground a complaint under the Code. Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17.

55During the summary hearing, the applicant also suggested that Instructor McGregor reprised against her because she made internal complaints about him to the College Ombudsperson, the Food and Beverage Management Program Coordinator, and the Chair of the Hospitality and Tourism department. In order for retaliatory actions taken in response to the applicant’s internal complaints to constitute a reprisal within the meaning of s.8 of the Code, the applicant would have to show (1) that, in making such complaints, she was claiming or enforcing her rights under the Code and (2) that Instructor McGregor intentionally retaliated against her for doing so. Again, the applicant has no reasonable prospect of establishing this.

56On January 27, February 1, and February 8, 2012, the applicant complained to Instructor McGregor himself, the Food and Beverage Management Program Coordinator, and Department Chair Jeannine Cookson that Instructor McGregor’s class was unsafe, that his teaching methods were impractical, that his grading was “completely out of line”, and that Instructor McGregor himself was negligent, immature, belittling, and “out-of control”. However, the applicant did not claim that any of Instructor McGregor’s actions were discriminatory or harassing based on a prohibited ground under the Code. Accordingly, assuming without finding that Instructor McGregor gave the applicant a low grade or made the “princess” remark because of the above-noted internal complaints, there would be no basis upon which the Tribunal could find that his actions constituted reprisals within the meaning of s.8 of the Code.

57In coming to this conclusion, I have specifically considered whether the applicant’s February 8, 2012 complaint to the Department Chair about Instructor McGregor allegedly asking, “Is that all you can do?” could be construed as the applicant claiming or enforcing her rights under the Code. In my view, it cannot. Although the applicant now attempts to argue that Instructor McGregor’s question was discriminatory based on disability, she did not take that position at the time she complained about it to Cookson. In her February 2012 complaint about Instructor McGregor to Ms Cookson, the applicant asserted that Instructor McGregor’s question undermined her confidence and provoked students into attempting dangerous routines that could cause “extreme harm” to others. However, she did not link the allegedly improper question to her disability or any prohibited ground under the Code.

58I note that the applicant did express an intention to file a human rights complaint against Instructor McGregor in a February 15, 2012 complaint to the College Ombudsperson. Based on the materials presently before me, it is not clear that Instructor McGregor would have been privy to the applicant’s February 15, 2012 communications with the College Ombudsperson.

59However, assuming he did know about it, in my view, the applicant does not have a reasonable prospect of proving that Instructor McGregor gave her one or more low grades and/or made the “princess” remark with the intention of retaliating against the applicant for her February 15, 2012 complaint to the College Ombudsperson.

60During the summary hearing, the applicant argued that the 55 percent grade she received on a February 8, 2012 multiple choice quiz was lower than the grade she deserved based on her knowledge of the subject matter. She contends that Instructor McGregor purposely gave her this low grade to punish her for claiming and enforcing her rights under the Code and/or for instituting or participating in proceedings under the Code. Although the applicant could not remember exactly when she received her grade, it appears that it must have been on or before February 10, 2012, which was the date on which the applicant emailed Instructor McGregor to complain about her low mark, and his teaching in general. Obviously, the applicant cannot establish that Instructor McGregor gave her a low mark on or before February 10, 2012 for claiming or enforcing her rights under the Code in a complaint to the Ombudsperson on February 15, 2012.

61In any event, in light of documentary evidence that the applicant was complaining about her marks in Instructor McGregor’s class well before she ever claimed that Instructor McGregor had infringed her rights under the Code - on February 1, 2012 to Pascal Chambon and to Instructor McGregor himself on February 10, 2012 - the applicant has no reasonable prospect of proving that her low marks were linked to the content of her February 15, 2012 email to the Ombudsperson.

62I must also dismiss the allegation that Instructor McGregor reprised against the applicant when he told his class, “Suck it up, Princess”, allegedly while making brief eye contact with the applicant. During the summary hearing, the applicant explained that this remark was made in response to a number of students in the class complaining about Instructor McGregor’s position that students would have to go beyond replicating what he had taught them in the class – and demonstrate their own creativity - in order to get an “A” in the class. According to the applicant, when the students complained about this, he told them, “Suck it up, Princess”. Against that backdrop, I do not think that the applicant has any reasonable prospect of proving that the “princess” remark was directed towards her at all, much less that it constituted a punitive response to the applicant’s having threatened to file a human rights complaint. Nor does the alleged fact that Instructor McGregor made eye contact with the applicant when he made the remark, taken on its own or with the applicant’s other allegations, provide a basis upon which the Tribunal might find that the comment constituted a reprisal.

63In sum, I find that the applicant has no reasonable prospect of proving that the respondent reprised against her for claiming or enforcing her rights under the Code or for instituting or participating in the proceedings in Tribunal file 2011-10327-I. The applicant’s reprisal claim is dismissed accordingly.

TRIBUNAL FILE 2012-10966-I

64In this Application, filed on February 21, 2012, the applicant alleges that Fanshawe College’s Campus Security Services (“campus security”) reprised against her for filing the Application in Tribunal file 2011-10327-I.

65The respondents submit that, in or around February 2012, campus security commenced an investigation, after receiving a complaint about the applicant from another student. A decision was made to suspend the applicant on February 21, 2012, on an interim basis, pending further investigation.

66This Application relates to the issuance of the Notice of Interim Suspension to the applicant on February 21, 2012.

67Specifically, the applicant alleges that, on February 21, 2012, Special Constable Arsenault and an unnamed second officer with campus security approached the applicant in front of an instructor and some of her classmates and gave her a Notice of Interim Suspension, as retaliation for the applicant having made allegations against the second officer in Tribunal file 2011-10327-I. The applicant also complains that the officers in question refused to tell the applicant why she was being suspended and/or lied about their knowledge of the reasons for her suspension; and threatened to arrest the applicant if she did not stop asking questions about her suspension and leave campus.

68In my view, this Application has no reasonable prospect of success.

69In order to succeed in her reprisal claim, the applicant would have to establish that, by giving the applicant the Notice of Interim Suspension and/or by treating the applicant in the manner they did on February 21, 2012, campus security officers were intentionally retaliating against the applicant because of the allegations she made against the second officer in Tribunal 2011-10327-I. However, the applicant cannot establish this because at the time of the alleged reprisal, she had not made any human rights allegations against the officer in question.

70The applicant acknowledges that her November 2011 Application in Tribunal file 2011-10327-I did not contain any allegations against the “unnamed second officer”. Such allegations did not surface until May 22, 2012. On that date, the applicant sought to amend her Application to include an allegation that the officer in question refused to accompany the applicant to a November 28, 2011 meeting with Instructor Circelli-Russell and the department chair, Jeannine Cookson; and only agreed to do so after the applicant threatened to complain that the officer was not fulfilling his duty to protect her. (The applicant maintained that a security escort was required in order to prevent any physical harm from coming to the applicant at the November 28, 2011 meeting.)

71As noted in para. 12 above, the applicant contends that that she initially attempted to raise this allegation against the campus security officer in a January 1, 2012 RFOP. However, the RFOP was not delivered to the respondents or filed with the Tribunal then or any time prior to May 22, 2012. In the circumstances, I do not see how the applicant can prove that campus security officers intentionally retaliated against her on February 21, 2012 for allegations that she did not make until May 22, 2012.

72During the summary hearing, the applicant attempted to argue that, even though her allegations against the security officer were not brought forward until May 22, 2012, the security officer in question knew that the applicant intended to file a human rights Application against him as of November 28, 2011. Specifically, the applicant submits that when the officer initially refused to accompany her to the November 28, 2011 meeting with Jeannine Cookson, she told him that it was his job to maintain safety and that she intended to file a complaint against him for not doing his job.

73Assuming without finding that such a statement was made to the campus security officer by the applicant, I disagree that it can be construed as the applicant claiming or enforcing her rights under the Code. There is no allegation that the applicant accused the officer of failing to do his job for discriminatory reasons. In the circumstances, there is no basis upon which the Tribunal could conclude that the applicant was claiming or enforcing her rights under the Code when she accused the officer of not doing his job. Accordingly, even if the officers’ conduct on February 21, 2012 was linked to the applicant’s November 28, 2011 threat to complain that one of them was not doing his job, such conduct would not constitute a reprisal within the meaning of the Code.

74During the summary hearing, the applicant took the position that she could establish that she was reprised against contrary to s.8 of the Code by establishing that Constable Arsenault and the other officer lied when they told the applicant on February 21, 2012 that they did not know why she was being suspended. Contrary to what he said to her, the applicant submits that Constable Arsenault was very much involved in investigating the applicant’s alleged misconduct and that it was his decision to impose the interim suspension. Even if the officers did mislead the applicant about the extent of their knowledge about the reason for her interim suspension, that is not a sufficient basis, taken on its own or with the applicant’s other allegations, upon which the Tribunal might find that the officers were intentionally retaliating against the applicant for exercising her rights under the Code when they issued her a Notice of Interim Suspension. Nor does the fact that the officers allegedly refused to give the applicant their names assist the applicant in proving that the officers were attempting to punish the applicant for exercising her rights under the Code.

75In sum, I find that the reprisal claim in this Application has no reasonable prospect of success. It is dismissed accordingly.

TRIBUNAL FILE 2012-11000-I

76In this Application, filed on February 26, 2012, the applicant alleges that the College’s campus security office and campus security’s operations manager, Shawn Rutkauskas, discriminated against her because of disability and reprised against her contrary to the Code.

77The events giving rise to the Application occurred on February 23, 2012. On that date, the applicant alleges that she telephoned the College’s campus security office to complain that the two officers who had served her with a Notice of Interim Suspension on February 21, 2012 threatened the applicant with physical violence when she asked why she was being suspended. (The applicant maintains that threatening to arrest her if she did not leave campus was a threat of physical violence.)

78The receptionist at campus security initially directed the applicant’s call to the College’s Code of Conduct Administrator, Bob Clark. However, Mr. Clark had already spoken to the applicant and told her that he had no information about her interim suspension and would not have any until the requisite paperwork was forwarded to him by campus security. The applicant called campus security again. This time, the receptionist told her that the operations manager, Mr. Rutkauskas, would contact her. Shortly thereafter, the applicant sent an email to Mr. Clark and campus security purporting to document what had transpired with her telephone calls that morning. Mr. Rutkauskas responded to the applicant by email later that day, on February 23, 2012, as follows:

Please stop calling and emailing security and the control centre regarding these matters. You are currently on suspension and have been advised that Bob Clark will be in contact with you when the investigation is completed. Thank you for your attention to this matter.

79The applicant alleges that the manner in which campus security and Mr. Rutkauskas treated her on February 23, 2012 constituted discrimination because of disability and reprisal contrary to s.8 of the Code. In my view, she has no reasonable prospect of proving this.

80In order to make out her discrimination claim, the applicant would have to establish that the respondents treated her in a distinct and disadvantageous manner because of her disability. In my view, there are no facts alleged in this case that would allow the Tribunal to conclude that the manner in which the respondents handled the applicant’s February 23, 2012 telephone and/or email inquiries constituted disadvantageous treatment. In any event, even if the applicant could establish that she was disadvantaged by the manner in which the respondents handled her inquiries and/or attempt to complain about Constable Arsenault and his fellow officer, there are no facts alleged that, if true, could link such disadvantageous treatment to the applicant’s disability.

81In support of her discrimination claim, the applicant submits that the respondents had access to information that she had a physical disability. However, the mere fact that the respondents knew that the applicant had a disability (assuming without finding they did) is insufficient to establish that the alleged disadvantageous treatment was “because of” the applicant’s disability.

82For the above reasons, I find that the applicant’s discrimination claim has no reasonable prospect of success. It is dismissed accordingly.

83Nor does the applicant have any reasonable prospect of proving that, by responding to her February 23, 2012 calls and/or email in the manner they did, the respondents were intentionally punishing the applicant for claiming and/or enforcing her rights under the Code and/or instituting proceedings under the Code, which is what would be required in order for the applicant to succeed in her reprisal claim.

84As in the Application in Tribunal file 2011-10966-I, the applicant alleges that the respondents reprised against her because of the allegations she made against a campus security officer in Tribunal file 2011-10327-I. Again, however, as noted above, at paras. 70 to 71, the applicant did not make any human rights allegations against the officer in question until May 22, 2012. In my view, the applicant clearly cannot establish that the respondent mistreated her in February 2012 with the intention of punishing her for something she did not do until May 2012. Moreover, even if the applicant could establish that the respondents in this Application handled her February 23, 2012 communications in the manner they did in retaliation for the applicant having threatened, on November 28, 2011, to complain that a particular campus security officer was not doing his job (and the applicant could not point to any evidence that might establish this), this would not constitute a reprisal within the meaning of s.8 of the Code. This is because, as discussed at para. 72 to 73 above, accusing someone of not doing his job is not claiming or enforcing one’s rights under the Code.

85During the summary hearing, the applicant also attempted to argue that when the respondents emailed her on February 23, 2012 to “stop calling and emailing”, they were reprising against her for claiming or enforcing her rights under the Code on February 21, 2012, during her interaction with Constable Arsenault. Specifically, the applicant contends that she was claiming and/or enforcing her rights under the Code when she told Constable Arsenault that she had a right to know why she was being suspended. I cannot agree. A student’s legal right to be informed of the reason for a suspension – though it may well exist elsewhere – is not a right under the Code. Accordingly, even if the respondents did retaliate against the applicant for claiming her right to know why she was being suspended, this could not be the basis for a finding of reprisal within the meaning of the Code. Along the same lines, Mr Rutkauskas’s alleged failure to investigate the applicant’s claim that Constable Arsenault “violated [her] rights for clarification of the allegations against [her]” could not give rise to an “inference of an act of discrimination” (and leaving aside whether this allegation is within the scope of the Application, having been raised in written submissions filed after the July 30, 2012 hearing).

86Finally, in her Application, the applicant takes the position that ever since the Associate Chair “questioned the validity of [her] complaint” in his January 2012 Case Assessment Direction (directing a summary hearing), campus security took it upon themselves to “punish” the applicant for initiating the complaint in Tribunal file 2011-10327-I. However, aside from this bald assertion, the applicant was unable during the summary hearing to point to any evidence linking the respondents’ alleged mistreatment of her to their knowledge of the Tribunal’s Case Assessment Direction. Indeed, during the summary hearing, the applicant acknowledged that she is not in a position to refute the respondents’ evidence that campus security was not even aware of the Tribunal’s Case Assessment Directions in this matter.

87Accordingly, I find that the applicant has no reasonable prospect of proving that the respondents reprised against her in the manner claimed.

88The Application is dismissed accordingly.

TRIBUNAL FILE 2012-11041-I

89The respondent in this Application is the College’s Code of Conduct Administrator, Bob Clark. In this Application, filed on March 6, 2012, the applicant alleges that Mr. Clark discriminated against her because of disability, sex and age and reprised against her contrary to the Code.

90As noted above, the applicant was given a Notice of Interim Suspension on February 21, 2012, pending investigation of allegations that the applicant had engaged in misconduct, contrary to the Student Code of Conduct, by engaging in “harassing and intimidating behaviour towards both faculty and fellow students.”

91During the summary hearing, the College explained that the Notice of Interim Suspension was issued by campus security. However, the College’s Code of Conduct Administrator, Mr. Clark, was the person responsible for investigating the allegation that the applicant had breached the Student Code of Conduct and for determining the appropriate sanction for such breach, if any.

92On March 1, 2012, Mr. Clark sent the applicant a letter setting out the allegations that the applicant caused disruptions in classroom and laboratory settings and made “numerous unfounded, vexatious complaints involving faculty members within [her] Program” and adversely affected the rights of members of the College Community to use and enjoy the College’s learning and working environment and facilities. Some of the complaints against the applicant involved allegations that she had used the threat of human rights complaints in an attempt to intimidate. For example, in October 2011, the applicant made an internal complaint that one of her professors had repeatedly and purposefully kicked the applicant’s chair during class. In one email to the professor in question about this, the applicant allegedly stated that “she had bad experiences with inappropriate behaviour [in the past] which did result in a lengthy human rights case.”

93The allegations that the applicant violated the Student Code of Conduct arose largely out of internal complaints that the applicant made about five professors between October 2011 and February 2012, two of whom were Instructors Circelli-Russell and McGregor. The applicant’s complaint about one of the professors, Chef B., was not based on the applicant’s own experiences with the Chef but on comments she allegedly overheard another student making at a gala event. (As I understand it, the applicant purported to “report” that Chef B. had engaged in sexually harassing behaviour, based on her having overheard the student in question say that Chef B. had told sexual jokes at a previous event.)

94On March 5, 2012, Mr. Clark met with the applicant, as well as two women from the College’s Counselling and Accessibility Services Office, who attended as support persons for the applicant, for the purpose of hearing the applicant’s response to the allegations.

95The next day, on March 6, 2012, the applicant filed this Application alleging that the allegations that the applicant had engaged in misconduct contrary to the Code of Conduct and Mr. Clark’s investigation into the applicant’s alleged misconduct were discriminatory and constituted reprisals against the applicant contrary to s.8 of the Code.

96Also on March 6, 2012, the respondent Code of Conduct Administrator made his decision that the applicant had violated the College’s “Respectful College Community Policy” by engaging in a “course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome and which could reasonably be regarded as intending to intimidate, offend, degrade or humiliate an individual that results in a harmful work environment.” In explaining his decision, the respondent stated that the applicant had made complaints about the majority of the chefs/professors in her program, all of which had been investigated and determined to be unfounded. In addition, the respondent appears to have regarded the applicant’s conduct towards another student as particularly significant (i.e. the student whose complaint about the applicant allegedly triggered the Code of Conduct investigation). Specifically, the respondent concluded that the applicant’s actions became “problematic” when she approached another female student on a city bus and told her that she (the applicant) had overhead her complaining about Chef B. and that she had taken it upon herself to report the student’s complaint about Chef B. to Chef B.’s superior. According to the respondent’s decision, the female student in question was very upset that the applicant had done this, stating that the applicant’s actions had made her feel awkward around Chef B. and negatively impacted her abilities in the classroom setting.

97In his decision, the respondent also found the applicant to have violated the College’s “Respectful College Community Policy” by making a complaint “for purposely malicious or vindictive purpose.” In particular, he found that the applicant had been malicious and vindictive when she submitted a photograph of Professor McGregor lifting the kilt of another chef “obviously in a joking manner” as “evidence of the type of conduct in which faculty conduct themselves.”

98As a result of his decision that the applicant had violated the Code of Conduct, the respondent suspended the applicant from the College until December 31, 2012.

Discrimination because of disability

99As noted above, the applicant alleges that the respondent Code of Conduct Administrator discriminated against her because of disability. The applicant contends that such discrimination is evident in the fact that the respondent punished the applicant, who has a physical disability, while not punishing other students who violated the Code of Conduct but do not have a disability. In particular, the applicant refers to the two students in Instructor McGregor’s class who hit the applicant’s knee with a bottle on January 26, 2012, and who, she alleges, violated a section of the Code of Conduct that prohibits conduct “endangering the health, safety, rights or property of the College or College Community members”.

100In my view, the applicant’s allegation that the respondent discriminated against her because of disability has no reasonable prospect of success. In order to prove discrimination based on disability, it is not enough for the applicant to show that she experienced disadvantageous treatment and that she has a disability, even if she can also show that others who did not experience such disadvantageous treatment did not have a disability. In order to succeed in her discrimination claim, the applicant must be able to establish that her disability was all or part of the reason for the disadvantageous treatment. In this case, there are no facts alleged that if true could lead the Tribunal to conclude that the respondent decided to suspend the applicant because of her disability. Although the applicant may be correct that other non-disabled students were not disciplined for injuring the applicant’s knee on January 26, 2012, this does not assist her in establishing discrimination. The applicant’s alleged misconduct is very different from the misconduct she alleges the other students to have committed on January 26, 2012. Against that backdrop, any difference in disciplinary response by the respondent does not, in my view, constitute a basis upon which the Tribunal might conclude that the applicant was disciplined because of her disability, in whole or in part.

101The allegation that the respondent discriminated against the applicant because of her disability is dismissed accordingly.

Discrimination because of sex and/or age

102The applicant also alleges that the respondent discriminated against her because of sex. In particular, in her Application, the applicant alleges that the respondent “appears to have strong hostilities towards women who are intelligent and educated.” The applicant alleges that the respondent’s attempts to “lie” to her about the contents of the Code of Conduct were his “means” of calling her “a dumb woman who complains too much.’” To be clear, the applicant does not allege that the respondent said these things. Rather, the applicant alleges that this is the mindset that is evident from the respondent’s “lies” about what is contained in the Code of Conduct.

103The applicant also alleges that the respondent discriminated against her because of her age. In explaining why she believes that the respondent discriminated against her because of her age, the applicant submits that she is one of the more mature students at the College (she was approximately 27 at the time of her suspension) and that the respondent “views this as a threat to the students in that the students and staff may actually be required to be more respectable.”

104In my view, the allegations that the respondent discriminated against the applicant because of sex and/or age have no reasonable prospect of success. Other than bald assertions, the applicant does not allege any facts that, if true, would be a basis for the Tribunal to conclude that the respondent’s actions and/or decision to suspend the applicant were linked in any way to the applicant’s sex and/or age. Accordingly, the allegations that the respondent discriminated against the applicant because of sex and/or age have no reasonable prospect of success and are dismissed.

Reprisal

Reprisal for claiming or enforcing rights under the Code

105In this case, the applicant alleges that the respondent, the College’s Student Code of Conduct Administrator, reprised against her for claiming or enforcing her rights under the Code and for instituting the human rights Application in Tribunal file 2011-10327-I. In particular, the applicant alleges that Mr. Clark reprised against her during his investigation and in finding that the applicant had violated the Student Code of Conduct by engaging in vexatious and malicious behaviour.

106The applicant submits that the fact that the respondent punished her for exercising her rights under the Code is apparent from the fact that the Code of Conduct allegations against her expressly included an allegation that the applicant had used the threat of human rights complaints to intimidate her professors.

107In addition, the applicant contends that the respondent’s investigation was really a “witchhunt” and that the respondent “rewrote” the allegations and denied the applicant a fair opportunity to defend herself, because he wanted to find that she had breached the Code of Conduct and suspend her. In addition, the applicant contends that the respondent’s investigation was flawed because the respondent accepted allegations against the applicant at face value while giving no credence to the applicant’s “evidence”. Indeed, the applicant alleged, for the first time during the summary hearing, that Mr. Clark expressly told the applicant, during his March 5, 2012 meeting with her, that he was “going to believe anything about the applicant anyway” (i.e. suggesting that he was going to believe the allegations against the applicant). The applicant also alleged for the first time during the summary hearing that the respondent was “brandishing” a file folder during the March 5, 2012 meeting, as if he was going to hit the applicant with it.

108The respondent vehemently denies the applicant’s allegations. Moreover, he submits that the Tribunal should refuse to consider the two allegations of “egregious conduct”, which were raised by the applicant for the first time during the summary hearing, in determining whether the applicant’s reprisal claim has any reasonable prospect of success.

109The respondent submits that the applicant has no reasonable prospect of establishing that the respondent reprised against her because she has no reasonable prospect of proving that he took any action against the applicant with the intent to punish her for claiming or enforcing her rights under the Code. See Noble, above, at para. 31. On the contrary, the respondent submits that any action he took against the applicant in his role as the College’s Code of Conduct Administrator was based on his finding that the applicant had engaged in vexatious and malicious behaviour contrary to the Student Code of Conduct.

110The respondent submits that, as the College’s Code of Conduct Administrator, he was responsible for determining the allegations referred to him in February 2012 that the applicant had violated the Code of Conduct by engaging in harassing and intimidating behaviour towards both faculty and fellow students. The respondent submits that he was required to make findings of fact with respect to the applicant’s conduct, based on the information before him and he did this. The applicant may not agree with some of his findings, but that does not engage the Code, submits the respondent. The respondent submits that the Tribunal has no jurisdiction to deal with a claim that he was wrong in determining that the applicant had engaged in vexatious and malicious behaviour in breach of the Code of Conduct. In addition, the respondent submits that the Code is not engaged in this case because human rights complaints that are vexatious or that are made for an ulterior motive or in an attempt to intimidate are not protected by s. 8 of the Code.

111Having carefully considered the matter, I am not persuaded that the applicant’s claim that the respondent reprised against her for claiming or enforcing her rights under the Code and/or for instituting proceedings under the Code can be dismissed at this stage as having no reasonable prospect of success. In my view, it is necessary for the Tribunal to hear evidence in order to determine this aspect of the applicant’s reprisal claim. While the respondent vigourously disputes that the applicant’s allegations could support a finding of reprisal, on a purposive interpretation of the Code, in my view, this is a matter more appropriately determined at a hearing on the merits. This aspect of the applicant’s reprisal claim will continue in the Tribunal’s process.

112The issue with respect to whether the applicant will be permitted to rely upon the two allegations that the respondent told her on March 5, 2012 that he was going to believe anything about her and brandished a file folder as if to hit her with it will be determined by the adjudicator assigned to hear the reprisal claim on its merits.

Reprisal for refusing to infringe another person’s rights under the Code

113Finally, I wish to address the allegation in the Application that the respondent reprised against the applicant for refusing to infringe another person’s rights under the Code. Although the applicant did not pursue this allegation during the summary hearing, to the extent that she may seek to do so, I find that the allegation ought to be dismissed as having no reasonable prospect of success.

114As I understand it, the allegation that the respondent reprised against the applicant for refusing to infringe another person’s rights under the Code stems from the fact that the applicant was alleged and found to have breached the Student Code of Conduct, in part, because she purported to “report” another student’s sexual harassment complaint about Chef B. to Chef B’s superior. (see para. 93 and 96 above).

115In my view, this claim has no reasonable prospect of success because the applicant was not “refusing to infringe” another person’s rights under the Code when she purported to report another student’s complaint about Chef B. to another faculty member.

116The thrust of the applicant’s pleadings is that the female student she allegedly overheard complaining about Chef B. at a gala was “bullying” Chef B. The applicant asserts that, by bringing that student’s complaint out in the open, she was “refusing to permit” that course of conduct to continue. However, insofar as there is no right under the Code not to be unjustly accused of sexual harassment, I fail to see how bringing the complaint about Chef B. to his superior’s attention could be construed as the applicant refusing to infringe Chef B.’s rights under the Code.

117Alternatively, if the applicant is attempting to argue that she refused to infringe the Code rights of the student she allegedly heard complaining about Chef B., I do not see how she can establish that either. The applicant contends that the College’s Code of Conduct obliged her to report observed breaches of it. That may be. However, the Human Rights Code certainly did not oblige the applicant to make an unsolicited and indeed unwelcome human rights complaint on behalf of a student she allegedly overheard complaining about an instructor.

118Accordingly, to the extent that the respondent’s actions and/or decision to suspend the applicant were based on the applicant’s complaint about Chef B., the applicant has no reasonable prospect of success in proving that they constituted a reprisal within the meaning of s.8 of the Code. This aspect of the applicant’s reprisal claim is dismissed accordingly.

ORDER

119In sum, the Applications in Tribunal files 2011-10327-I, 2012-10966-I, 2012-10994-I and 2012-11000-I are dismissed as having no reasonable prospect of success.

120In addition, the claims in Tribunal file 2011-11041-I that the respondent discriminated against the applicant because of sex, age and/or disability and/or reprised against her for refusing to infringe another person’s rights under the Code are dismissed. The claim that the respondent reprised against the applicant for claiming and/or enforcing her rights under the Code and/or for instituting or participating proceedings under the Code will continue in the Tribunal’s process. The respondent has 35 days from the date of this Interim Decision to file his Response to this part of the Application.

121I am not seized.