HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Julie McRoberts
Applicant
-and-
Bob Clark
Respondent
DECISION
Adjudicator: Dawn J. Kershaw
Indexed as: McRoberts v. Clark
APPEARANCES
Julie McRoberts, Applicant Self-represented
Bob Clark, Respondent Lisa Kwasek, Counsel
Introduction
1The applicant alleges that the respondent reprised against her for claiming or enforcing her rights under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and for filing the November 23, 2011 Application in Tribunal file no. 2011-10327-I.
2The hearing in this matter was held on May 5, 2014. Both parties attended, gave evidence and made submissions.
background
3The applicant became a student at Fanshawe College (“the College”) in October, 2011 in its School of Tourism and Hospitality. The respondent is the Code of Conduct Administrator at the College.
4Between October 17, 2011, and February 2012, the applicant made several complaints about her professors, a complaint about other students and one complaint about a professor on behalf of another student who had not asked her to do so.
5In November 2011, the applicant filed an Application against the College and one of her professors with the Tribunal (File 2011-10327-I).
6Campus security at the College served the applicant with a Notice of Interim Suspension under the Student Code of Conduct on February 21, 2012.
7The respondent reviewed the campus security file and sent a March 1, 2012 letter to the applicant alleging five counts of violations of the Student Code of Conduct and setting up a meeting time. The applicant and respondent met on March 5, 2012.
8In a March 8, 2012 Decision Report (“the report”), the respondent determined the applicant had violated the Respectful College Community Policy. On March 8, 2012, the College gave the report to the applicant and suspended her from the College effective March 9 to December 31, 2012.
9On March 6, 2012, the applicant filed this Application alleging the respondent reprised against her by his conduct during the investigation of her complaints and by finding that she had violated the Student Code of Conduct. The Application contained other allegations which were dismissed following a summary hearing. See 2013 HRTO 995.
the law
10Section 8 of the Code provides protection against reprisal or threat of reprisal when a person attempts to claim and enforce his or her rights under the Code:
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.
evidence and analysis
11The applicant did not dispute she complained about incidents occurring between October 17, 2011, and February 2012. Her specific complaints are briefly set out below:
On October 17, 2011, a complaint alleged her professor was purposely kicking her chair during class. She told the professor she had been involved in a lengthy human rights case and did not want another one. She did not assert any violation of her human rights.
On November 9, 2011, the applicant complained about another professor, citing unfair practices beginning on October 26, 2011, and which culminated in being asked to leave the professor’s lab. The applicant did not dispute referring to this professor as an “unhelpful ogre with a bloodlust for a sadistic view of power […]”, an “ignorant excuse for a cook”. She stated the Human Rights Tribunal would agree with her, and claimed the professor held the prejudices against her because she is a woman with a physical handicap.
On November 15, 2011, the applicant alleges the same professor treated her in a belittling manner, yelled and screamed at her for no reason and for performing a task she was told to perform, questioned her about the cleanliness of her work station and messed it up on her. On November 23, 2011, the applicant filed a human rights Application against this professor.
On February 4, 2012, the applicant complained about another professor, Mr. R., whom she alleged discussed drinking his wife’s breast milk in his class and had been gender biased. She stated his behaviour is “repremandable by the Human Rights Commission” [sic].
On February 4, 2012, the applicant emailed a Human Resources representative about an incident in her mixology class in which she asserted the professor, Mr. M., failed to get her medical attention after she was injured when two students were practising a flare routine. She later referred to this incident as an assault.
In a February 5, 2012 email, the applicant reported a comment she overheard an unnamed student [later identified as Ms. M.] make to another student at a student gala on the previous Saturday. Ms. M. is alleged to have said that a professor, Mr. B., sexually harassed her by winking at her.
On February 10, 2012, the applicant emailed Mr. M. raising concerns about her first module mark and stated she had to redirect him to his course material and raised concerns about sexual innuendoes and his unsafe approach to opening wine bottles. She also alleged harassment through bullying and advised that if his behaviour continued she would seek legal action. In response, the chair told the applicant to email her directly and not the faculty and staff.
12On February 15, 2012, Mr. M. e-mailed the chair to advise that, after 5 minutes in his class, the applicant stopped, sat down on the benches outside the back entrance of the room and stared at him and the other students for 45 minutes without moving, which made him and the students uncomfortable.
13With respect to the February 5 report of the conversation the applicant allegedly overheard between Ms. M. and another student, Ms. M. complained about the applicant’s conduct to the chair and, in her witness statement, denies making the allegation reported by the applicant.
14It is undisputed that a special constable from the College served the applicant with a Notice of Interim Suspension on February 21, 2012, pending an investigation. The applicant testified she was given a vague reason for the Interim Suspension including that it was for her own emotional or physical safety. The Notice was served on her in a public hallway of the College.
15After the Notice of Interim Suspension was served, the respondent received the campus security file in his role of Code of Conduct co-ordinator. He testified that the Student Code of Conduct (“Code of Conduct”) governs what he does, and it sets out behavioural expectations and the disciplinary action that can be taken by the college if a student breaches the rules. He investigated the events involving the applicant after the Interim Suspension was issued.
16The respondent testified he reviews any investigation files prepared and submitted by campus security, which includes witness statements and reports gathered and written by campus security. He then decides which, if any, of the Code of Conduct sections have been violated and compiles a notification letter to the student. If he agrees there has been a violation, he meets with the student to allow him or her to address the allegations.
17In this case, after reviewing the file, he wrote the March 1, 2012 letter to the applicant which advised her of the allegations and set up a meeting time. The letter set out five counts of alleged violations of the Code of Conduct and Respectful College Community Policy.
18The letter also set out the particular Code of Conduct and Respectful College Community Policy sections the applicant was alleged to have violated with respect to each of the five counts. These included:
misconduct against persons – harassment and intimidation;
contravention of college policies – Respectful College Community Policy;
bullying/personal harassment;
acts of dishonesty – providing false information to any college official, office or member of the teaching staff; and
disruption of college activities.
19The letter alleges that between October 2011 and February 2012, the applicant was responsible for numerous disruptions within the classroom and laboratory settings and made numerous unfounded, vexatious complaints about faculty members. It further stated that some of the complaints included attempts to intimidate using the threat of human rights complaints. It also stated that some of the applicant’s complaints included insinuations of sexual misconduct by faculty members in classroom discussions and in gestures made to other students. It alleged that the applicant’s conduct had adversely affected the rights of members of the College community to use and enjoy the College’s learning and working environment and facilities and had affected the health and safety of members of the College community.
20The respondent confirmed the letter referred to the applicant’s November 2011 Human Rights Application that was referred to in the file he received from campus security, but he did not know against whom it had been brought or if in fact it had been filed, and he did not seek out details of it.
21The applicant testified that the investigation and subsequent suspension was a reprisal because:
a. she was not given a chance to respond to the allegations against her;
b. she did not fabricate evidence as alleged by the respondent in his report;
c. the entire investigation was inadequate because it was intended to give the College grounds to suspend her, evidenced by the fact that she was not given a chance to respond to the allegations against her and because she did not fabricate evidence as alleged by the respondent;
d. the respondent wanted to attack her for her prior allegations against staff, the College and students and for asserting her rights under the Code; and,
e. she always had been reasonable, and had told the chair at the College she had had a prior Human Rights complaint and did not want another one.
22The burden is on the applicant to point to sufficient evidence from which the Tribunal can find, on a balance of probabilities, that it is more likely than not the respondent intended to reprise against the applicant for attempting to claim or enforce her rights under the Code. See Noble v. York University, 2010 HRTO 878 (“Noble”).
23In Noble the Tribunal identified the following elements which must be established for a finding of reprisal (at para 33):
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.
24Not every action or threatened action will constitute a reprisal. For example, disciplinary action unrelated to the exercise of a right under the Code will not constitute a reprisal. See Noble at para. 40. An applicant is protected from reprisal even where the Code-right claimed is not upheld. See Bertrand v. Primary Response, 2010 HRTO 186 at para. 59 (“Bertrand”).
25Without question the respondent’s investigation and decision to suspend her from the College was an action taken against the applicant. It is also undisputed the respondent’s March 2012 letter refers to the applicant’s human rights application and alleges she attempted to intimidate using threats of human rights claims. It is not necessary for the purposes of this decision to decide the merits of the applicant’s specific Code allegations against her professors, which for the most part appear entirely baseless. I am satisfied these facts support a finding the applicant can establish an arguable connection between asserting her Code rights and the respondent’s investigation and subsequent decision to suspend her from the College.
26The question then becomes whether I am satisfied, on a balance of probabilities, the respondent acted with an intention to reprise against the applicant for asserting her Code rights. I find in this case that the requisite intention to reprise is absent. I find the reason for the action taken against the applicant was because the relationship between the applicant and the College had become unworkable.
27In Jones v. Amway of Canada (“Jones”), 2001 CanLII 26217 (ON HRT), as in this case, the applicant asserted her Code rights. The applicant in that case was terminated after an investigation was done. The termination was found not to be retaliatory but because the working relationship was destroyed, even though the applicant in that case, as in this, had alleged a potential human rights violation.
28In Jones as in the case before me, the respondent investigated the applicant’s allegations (in that case of sexual harassment) and determined there was no validity to them. Despite this, the applicant continued to throw up roadblocks to making the working relationship tenable. Despite the respondent believing the parties had worked out a compromise, the applicant then wrote what the respondent termed an inaccurate memo of the same events and also refused a work assignment. The respondent terminated the applicant’s employment because the working relationship was untenable.
29The adjudicator in Jones determined it essential to find that the investigation was adequate. With that determination made, the analysis then shifted to whether the respondent intended to retaliate.
30I adopt the reasoning in Jones. Therefore I must first determine if the investigation of the applicant’s claims was adequate.
Adequacy of Investigations
31The applicant alleges the investigation of her claims was flawed and unprofessional but the evidence does not bear this out. I find in this case adequate investigations were done.
32The applicant complained about the majority of the chefs/professors in her program and each time she complained, an investigation was done by campus security, who at various times interviewed the professors, witnesses, and Ms. M. The applicant admitted on cross-examination the chair met with her various times and made notes of her comments, but testified the chair did not go “above and beyond”, although she did not specify what she meant by this. After each investigation, it was determined her complaints were unfounded.
33The applicant agreed the chair tried to facilitate a meeting between the applicant and the professor about whom she first complained. She testified she accepted an apology from that professor. She testified she then found herself attacked by another professor and felt the college did not resolve issues with her. She however admitted on cross-examination that the chair provided a written response to her complaint about this professor.
34The applicant stated things escalated and she alleged there were sexually harassing comments made by two other of her professors. The applicant alleged there was no response by the College, which the evidence does not bear out because campus security investigated and the chair gave the applicant advice about one of her complaints even though she denied this.
35The applicant agreed the chair told her to forward any complaints about her professors to her. She denied however that the chair was involved with her complaints because she did not consider the fact that the chair took notes to be a response. She testified that the chair basically told her she was sorry the applicant felt that way but she should suck it up. The fact that both the chair and campus security investigated each complaint and spoke to the parties involved belies this evidence and I do not accept it.
36While the applicant disagrees that the investigations done were adequate, they must be viewed in light of the allegations the applicant made. The first was the allegation a professor intentionally kicked her chair. The second and third were a professor being critical of the applicant’s performance in a lab setting, which also is a restaurant open to the public – despite the applicant’s allegation, no link between the criticism and the applicant’s disability or sex was found. The fourth involved a professor talking about having tasted his wife’s breast milk, which was determined to have been in the context of the professor telling his students it is necessary to taste things one intends to serve to customers, no matter what one thinks of those things. The fifth was the applicant’s injury, which not only expanded from an accident to an assault in the applicant’s words, but also evolved from no mention of an injury to serious bruising. The applicant later reported the same professor to the chair because of her mark and apparently having to redirect him to his course material. The sixth was the applicant’s report about an overheard conversation between Ms. M. and a friend, which Ms. M. denied and complained about.
37While investigations must be conducted with human rights in mind and cannot be, or be seen to be, cursory, these investigations were not, despite involving what might well have been perceived by the College to be spurious accusations, one coming on the heels of another. Each time the applicant made an allegation, the College investigated by interviewing all parties. I conclude the investigations were adequate in the context of the applicant’s complaints.
38The investigation did not stop at that point either. It continued once the file was given to the respondent. Before the longer term suspension was imposed, the respondent gave the applicant an opportunity to respond to the counts against her. I do not accept the applicant’s evidence that although she met with the respondent on March 5, 2012, with a support person, she had no idea why she was being accused of bullying and had no details because she admitted she knew to which of her complaints each of the five counts in the March 1, 2012 letter referred, and it defies belief that the applicant did not know who was involved in the incidents given the nature of her complaints. While the applicant testified she did not get a copy of the witness statements, in my view this is not sufficient to determine the investigation was inadequate, given the applicant was well aware of each incident. I accept the respondent’s evidence that the applicant did not get a copy of the witness statements because it involves an application under the Freedom of Information and Protection of Privacy Act.
39The applicant had a meeting with the respondent before the longer term suspension was imposed. Despite being given this opportunity, the respondent testified the applicant used the meeting not to address the complaints against her, but to address her own complaints and embellish them as evidenced by his report. For example, in the meeting she referred to the leg injury in the flaring class as an “assault” which had progressed from what appeared to be an accident. She also provided after the meeting her timetable, some text messages and a photo of a man in a kilt [Mr. M.] showing another man lifting up the bottom of it. When the respondent followed up with the applicant to find out the relevance of the photo, the applicant emailed back she wanted him to see how staff members of the college act when in public, which the respondent testified was irrelevant to the issue at hand.
40The applicant alleges the respondent got facts wrong which, in her view, proves the investigation was inadequate. It appears the respondent had one fact wrong, which was in the campus security file given to him. Ms. M. and the applicant did not share a law class and I accept that this fact was wrong given the applicant provided her student verification form. However, I do not accept the applicant’s denial that the witness correctly identified her by her physical disability and by being able to tie together the applicant’s physical disability with the details of the applicant’s complaint, despite getting the one fact wrong.
41The second fact the applicant alleges the respondent got wrong was that she spoke to Ms. M. on a bus as Ms. M. reported. I do not accept the applicant’s denial because the applicant could not explain how Ms. M. was able to relay almost the same story to the chair that the applicant had told and could not explain why she did not deny talking to Ms. M. on the bus during the meeting with the respondent. I do not accept her evidence that she was flustered, and thought the meeting was about Mr. B. and then suddenly it was about Ms. M. on a bus, which she said came out of nowhere. The applicant knew the meeting was a chance for her to respond to the allegations set out in the letter.
42I conclude that the fact the respondent had one fact wrong does not make the investigation inadequate. I cannot conclude that the investigations were done in a cursory way.
43The applicant testified the respondent made up allegations in the meeting and she was not given a chance to respond to the witness’ complaint against her. There was no evidence to support that.
44The applicant also testified she proved her allegations were not fabricated and provided what she said was evidence of that. She provided a November 24, 2011 e-mail from the applicant advising the peer tutor co-ordinator that a student she was assisting mentioned some concerning behaviour by a chef in the program and was considering leaving the college. She also provided a team attendance/contact sheet that included the name of one of the witnesses interviewed by campus security about her complaint about one of her professors. The applicant testified she was unable to get documents to prove that he was a problematic group member who smoked up and did not do the work, but testified that the reason he supported the professor’s position was because the applicant had complained about him to the instructor. In my view these provided no proof that the investigations were not adequate. The respondent considered these in reaching his conclusion. The fact they did not change his conclusion does not make the investigations inadequate.
45For all these reasons, I find the investigations were adequate. I turn now to consider, notwithstanding the adequacy of the investigations, the evidence can establish the respondent intended to reprise against the applicant.
Intention
46The applicant testified her suspension was retaliation for bringing her Human Rights applications. In November 2011, the applicant filed the Application in File 2011-10327-I against the College and one of her professors. She submitted the sentence in the report that states the applicant made complaints that include attempts to intimidate using the threat of human rights complaints is evidence that this was part of the respondent’s decision-making process.
47The respondent testified it was evident in the investigation that the applicant’s behaviour was disruptive and harassing, and that her complaints against staff were intimidating, harassing and vexatious. He testified on cross-examination that the problem in the applicant’s case was that she began head-butting with numerous professors, and the file made it evident that her complaints were untrue or embellished. Based on that, he made his decision.
48He further testified one of the applicant’s professors felt threatened by the applicant’s behaviour and the conduct of the applicant in her classroom. Another of her professors ended up on stress leave.
49The statements from other students taken during the investigations also disclose negative views on the disruption caused by the applicant’s actions in class, which is consistent with the determination by the respondent the applicant’s actions were compromising the ability of her professors and other students to function at the College.
50The respondent further testified that the College could not simply dismiss the applicant’s complaints as vexatious and move on because the professors felt unable to continue in the classroom and this was affecting others.
51He testified the applicant raised her Human Rights application in the meeting and he told her the meeting was not about that but was her chance to respond to the complaints made against her. He testified that as of March 5, 2012, he did not know about any Human Rights applications by the applicant other than the one referred to in his letter.
52The respondent considered the applicant’s comments from the meeting, but found she had violated the Code of Conduct and set out the reasons in his March 8, 2012 decision. He noted she had complained about almost all her professors since enrolling, that she had completely fabricated some of the allegations, that her behaviour had caused problems with at least one student, Ms. M., who felt uncomfortable attending class, and that submitting the photo of Mr. M. was malicious. Therefore a longer-term suspension was appropriate.
53The respondent submitted there was only a statement about the applicant’s Human Rights complaints in the introductory paragraphs of the report, and it was a statement of fact. This is not the case. There was more than one reference to human rights in the five counts set out against the applicant. One quoted a statement made by the applicant about a lengthy human rights case she had in the past. Another quoted the applicant as saying that the Human Rights Tribunal would agree with her allegations about one of her chefs. The respondent’s report also included the applicant’s statements about her right to contact the Human Rights Tribunal. However, it is equally clear from the report and from the respondent’s evidence that the respondent told the applicant that the human rights allegations were not the purpose of the meeting and the applicant’s evidence did not persuade me otherwise. Even the applicant conceded that most of the meeting was not about human rights.
54In order to determine if the respondent reprised against the applicant, I need only find that the human rights allegations and Application formed part of the reason the respondent issued a longer-term suspension against her.
55Despite the mention of the applicant’s human rights allegations I find for the reasons that follow that they did not form part of the decision-making process and the longer-term suspension was not a reprisal.
56The respondent testified he determined after the meeting the applicant embellished and changed her stories and violated the Respectful College Community Policies by making vexatious comments or engaging in conduct that reasonably should be known to be unwelcome, as well as making false complaints. He testified he based his decision to issue the longer term suspension on what he found were violations of the Code of Conduct.
57I find the respondent’s action against the applicant was not a reprisal for claiming or enforcing her rights under the Code but was a reaction to the fact that, as set out in the report, the applicant had complained about the majority of the chefs/professors in her program and each investigation found her complaints unfounded. The applicant’s actions were compromising the ability of her professors and other students to function at the college, as set out in the many interview statements of professors and students taken by campus security.
58When the respondent consulted with the person closest to the events, the chair, she worried that the behaviour would continue if the applicant returned, which in my view is evidence that there was a very real belief that the relationship was unworkable.
59I also accept as some support for my conclusion the respondent’s position that the applicant was not suspended when the college got notice of her Application in Tribunal File 2011-10327-I in January 2012. She ultimately was suspended because her allegations increased in frequency and kind, and as in Jones, her behaviour made it necessary. Discipline was imposed because of the disruption caused by the applicant and legitimate concerns for safety and not with intent to reprise.
60In Jones, as in this case, there was an assertion of the applicant’s Code rights. The applicant in that case was terminated after an investigation was done, and the termination was found not to be retaliatory but to be because the working relationship was destroyed. I adopt the reasoning in that case and find that in this case investigations were done and the applicant’s complaints were determined to be groundless. While that alone is not sufficient to dispose of a claim of reprisal, I accept the respondent’s evidence that he could not simply dismiss the applicant’s complaints as vexatious and move on because the professors felt unable to continue in the classroom and this was affecting others. I find this is the reason a suspension was imposed on the applicant and an intent to reprise was not a factor in that decision.
61The Jones case also provides support for finding that the mere mention of human rights does not automatically mean that part of the reason for the action taken by the respondent evidences reprisal. As in Jones there was an allegation of human rights violations but they were found not to be the reason the applicant was terminated. It was not sufficient merely that issues that could potentially be human rights violations were raised.
62Further support for this analysis can be found in Stevens v. Nothing But Water Products, 2009 HRTO 2136. That decision found the applicant went beyond simply asserting his intention to pursue a human rights complaint and engaged in yelling and slamming a door. His employment was terminated for the yelling and door slamming. No intention to reprise was found in that case, nor do I find the requisite intention in this case.
63While the respondent further submits in this case the applicant knowingly was using the Code to intimidate her professors and not to enforce her rights, and as opined in Staniforth v. C.J Liquid Waste Haulage, 2009 HRTO 717 at para. 95, Bertrand v. Primary Response, 2010 HRTO 186 at para. 59, and Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paras. 38 and 39, she should not be entitled to the protection of s. 8 of the Code if her claim is not genuine, I am not prepared to go that far in imputing motives to the applicant for her actions.
64In both Jones and Stevens discipline imposed on the applicant was appropriate and not a reprisal despite the human rights allegations.
65I find in this case the applicant was given a longer-term suspension for non-discriminatory reasons, including what were found to be violations of the Code of Conduct which impacted on her professors and on other students.
66I am not satisfied in this case the evidence establishes on a balance of probabilities the respondent intended to reprise against the applicant.
order
67For all these reasons, the Application is dismissed.
Dated at Toronto, this 31th day of July, 2014.
“Signed by”
Dawn J. Kershaw Vice-chair