Moore v. Canadian Memorial Chiropractic College, 2014 HRTO 1573

Human Rights Tribunal of Ontario

B E T W E E N:

Melissa Moore Applicant

-and-

Canadian Memorial Chiropractic College Respondent

INTERIM DECISION

Adjudicator: Jennifer Scott Date: October 24, 2014 Citation: 2014 HRTO 1573 Indexed as: Moore v. Canadian Memorial Chiropractic College

APPEARANCES

Melissa Moore, Applicant Ellad Gersh, Counsel

Canadian Memorial Chiropractic College, Respondent Allan Freedman, Counsel

1This Application alleges discrimination with respect to services because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

background

The Facts

2The following facts are taken from the parties' pleadings and their submissions on the summary hearing. These facts are for the sole purpose of the summary hearing decision.

3The applicant commenced studies at the Canadian Memorial Chiropractic College (the "College") in September 2006. She passed her first year.

4The applicant commenced her second year in September 2007. During her second year, she failed her anatomy lab. As a result of failing this course, the applicant was required to repeat her entire second year.

5The applicant repeated her second year in 2008/2009. In December 2008, she passed her anatomy lab. However, the applicant ultimately failed her second year.

6Because of the applicant's failure in second year, she was withdrawn from the College in June 2009.

7In July 2009, the applicant underwent a psychological assessment and was diagnosed with a learning disability.

8On August 18, 2009, the applicant provided the psychological assessment dated July 30, 2009 to the College. Legal counsel for the College responded on August 21, 2009 and stated the following:

Having regard to all of the above [the College's dispute with the facts set out in the psychological assessment], the College maintains its position that it has done all that it can for [the applicant]. If she is proceeding with her Appeal then please advise me immediately. If any other action is being contemplated then same should also be dealt with immediately and will be vigorously defended by the Institution.

9The applicant's receipt of the College's response of August 21, 2009 is in dispute between the parties.

10The applicant and various people on her behalf, including legal counsel, advocated with the College to allow the applicant to return to school. These efforts took place from October 2008 to February 2013. The advocacy concerned the alleged unfairness of the College's academic policies requiring a student to repeat an entire year when they fail one course, and the College's practice of reversing credits in the event a student subsequently fails courses passed in the previous year. The applicant asserted that once she passed the lab course in December 2008, she should have been put into her third year.

11On February 19, 2013, the applicant wrote to the president of the College and requested entry into third year. The applicant identified the College's duty to accommodate and requested accommodation in relation to testing. The applicant stated: "I feel that it is in the best interest of the school to create an accessibility program in line with the requirements of the Ontario Human Rights Code. I am looking for the opportunity to re-enter third year with the accommodation provisions in place such that we can all work together in a unified approach".

12The president of the College responded to the applicant by letter dated February 22, 2013. The president stated that in the three years that the applicant attended the College, she did not indicate that she had a special learning need. The president stated further that she was not able to grant the applicant's request to enter her third year because she did not qualify for promotion from her second year.

13The Application was filed with the Tribunal on September 11, 2013. The Application does not contain a narrative setting out the allegations of discrimination, but it appears the applicant is alleging the College did not understand its obligation to accommodate students and it breached her right to access education services without discrimination when it refused her request to be re-admitted into her third year.

14The College filed its Response on November 6, 2013.

15On November 8, 2013, the College filed a Request for Summary Hearing to dismiss the Application ("Request") because it was filed outside of the one-year limitation period set out in the Code.

16By Case Assessment Direction dated January 31, 2014, the Tribunal directed that a summary hearing be held to determine whether the Application should be dismissed on the basis of delay or because it had no reasonable prospect of success.

17The summary hearing was conducted by teleconference on June 18, 2014. During the summary hearing, I raised the question of whether the applicant's request to be re-admitted in the program in February 2013 was a stand-alone complaint of discrimination. The parties were given an opportunity to provide written submissions on this question.

Summary Hearing Process

18The summary hearing process is described in Rule 19A of the Tribunal's Rules of Procedure as well as the Tribunal's Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

19The Tribunal has held on many occasions that it does not have jurisdiction over general claims of unfairness unrelated to the Code. Discrimination under the Code generally involves an allegation of adverse treatment because of one or more of the grounds listed in the Code. Adverse treatment is not discriminatory in the legal sense unless there is proof that one or more of the personal characteristics listed in the Code was a factor in the treatment the applicant experienced.

20The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment she experienced. The test of no reasonable prospect of success is determined by assuming the applicant's version of events is true unless there is some clear evidence to the contrary.

21However, accepting the facts alleged by the applicant does not include accepting the applicant's assumptions about why she was treated adversely. The purpose of the summary hearing is to determine if reasonable inferences can be drawn from the evidence the applicant is able to point to, either in her possession or evidence that may be reasonably available to her, which tend to support the applicant's belief that she has experienced discrimination or reprisal under the Code. Although the applicant may point to evidence that support her allegations, there are no findings made at the summary hearing stage in relation to that evidence.

22The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the adverse treatment allegedly experienced by the applicant with the grounds of discrimination alleged in the application. Sometimes, applicants are not in a position to point to any evidence beyond their own suspicions to support their belief that they have been discriminated or reprised against. In such a situation, applications may be found to have no reasonable prospect of success. For an application to continue in the Tribunal's process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code.

Delay

23Section 34 of the Code provides that an Application must be filed within one year of the incident to which the Application relates, or within one year of the last incident in a series of events. Subsection 34(2) allows for a filing of an Application outside of the time limit if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to the respondent.

analysis

24The applicant attended the College from September 2006 until June 2009, at which time she was withdrawn. From 2009 until 2013, various efforts were made on the applicant's behalf to return her to school.

25By letter dated February 19, 2013, the applicant wrote to the president of the College and requested that she be re-admitted into her third year with accommodation. On February 22, 2013, the president wrote to the applicant and denied her request. The applicant filed her Application on September 11, 2013 wherein she complained about the College's refusal to readmit her, with accommodation. This allegation is, on its face, timely.

26The February 2013 allegation would not be timely if the request for re-admittance with accommodation was simply a reiteration of a request made and denied in 2009.

27There is no question that the applicant provided the College with the psychologist's report in August 2009. However, it does not appear that the report was accompanied by an accommodation request by the applicant, namely, that the College reconsider its withdrawal decision having regard to the information contained in the report.

28Although the applicant submitted in her response to the Request that her submission of the psychologist's report and the subsequent three and one-half years of correspondence between the parties constituted an ongoing request for accommodation, there is no documentation to support this submission. Indeed, there appears to be no communication from the applicant or her representatives requesting accommodation from the College prior to February 2013.

29In the Request, the College states "no request for academic accommodation of a disability has ever been provided to CMCC" (emphasis added). There is nothing in the College's letter of August 21, 2009 that indicates that it considered the provision of the psychologist's report as a request for accommodation or a request that the College reconsider its withdrawal decision having regard to the applicant's disability. In fact, in its submissions on the question of whether the February 2013 incident could be a stand-alone allegation of discrimination, the College stated: "the (psychologist's) report was not accepted by CMCC".

30On the summary hearing, the applicant filed extensive documentation concerning the advocacy efforts that were made on her behalf from June 2009 until 2013. After reviewing these documents, it is my view that while those advocacy efforts related to returning the applicant to school, they did not involve a request for accommodation by the applicant. Rather, they concerned a disagreement with the College's academic policies.

31On the basis of the information before me and the parties' submissions on the summary hearing, I cannot conclude that the applicant's 2013 request to be re-admitted into her third year at the College, with accommodation, was a repetition of an earlier request in 2009. Rather, it appears that the request for re-admittance with accommodation in February 2013 was a new request, and it is timely. The issue is whether this allegation has a reasonable prospect of success.

32The applicant alleges that the College breached her right to access education services without discrimination when it refused her request in February 2013 for re-admittance to her third year with accommodation. The applicant has linked the adverse treatment (refusal to readmit) with her disability. While the College may have a non-discriminatory reason for its refusal to readmit, that reason should be adduced through evidence at a hearing. I cannot conclude, at this time, that this allegation has no reasonable prospect of success.

33The applicant filed an affidavit on the summary hearing. While this was not evidence at the summary hearing, I assume it is evidence the applicant intends to call if the Application proceeds. In the affidavit, the applicant asserts the College ought to have known that she required accommodation while she was a student. In my view, this allegation is out of time. The applicant attended the College from 2006 to 2009. She filed the Application in September 2013, four years after her withdrawal from the College. Section 34 of the Code provides that an Application must be filed within one year of the incident to which the Application relates, or within one year of the last incident in a series of events. The applicant argues her allegations during school and her request for re-admission constitutes a series of incidents and for this reason, the 2006-2009 allegations are not out of time.

34In order to constitute a series of incidents within the meaning of s. 34 of the Code, the incidents must be thematically related and occur in close temporal order or succession. In particular, the Tribunal has determined that lengthy gaps in time between incidents in an alleged "series" will interrupt the series. The Tribunal has often found that a gap of one year or more between incidents in a series will often interrupt the series. See Sinclair v. London Public Library, 2014 HRTO 781 at para. 44.

35In my view, the allegations of discrimination during the applicant's attendance at school from 2006 to 2009 and her request for readmission in February 2013 are not a series of incidents for the following reasons. The applicant was not diagnosed with a learning disability until after her withdrawal in June 2009. She provided the diagnosis to the College in August 2009, but did not request accommodation. The applicant requested accommodation in February 2013 when she sought re-admission. In my view, the gap of four years and the lack of a relationship between the events of 2006-2009 and 2013 prevent them from being a "series of events" under section 34. As such, the allegations of discrimination from 2006 to 2009 are out of time.

36Under section 34(2) of the Code, the Tribunal can accept an Application that is untimely if it is satisfied that the delay was incurred in good faith and no substantial prejudice would result from accepting the Application. To show that a delay was incurred in good faith, the applicant must provide a reasonable explanation for her failure to pursue her rights under the Code in a timely manner.

37The applicant argues her delay resulted from her attempts to resolve the matter informally with the College. As stated above, those attempts involved the College's academic policies. They did not involve an attempt to assert the applicant's human rights or a request for accommodation on the basis of a disability. I cannot find that the applicant's efforts to resolve a dispute relating to the College's academic policies constitute a good faith explanation for her four-year delay in filing the Application. In any event, this Tribunal has held that ongoing negotiations between parties, is not a good faith reason for delay. See O'Flanagan v. Ontario (Education), 2012 HRTO 761 at para. 19. As a result of this finding, I do not need to address the issue of prejudice.

38After reviewing the materials filed by the parties, it is evident that there are many factual disputes between them. A summary hearing is not the place to resolve these disputes. This decision does not prevent the College from renewing its Request on the basis of evidence that is filed before the adjudicator assigned to hear this matter.

39In light of the above, I make the following findings:

1. The applicant's allegation concerning an alleged failure to accommodate by the College while she was enrolled at school between 2006 and 2009 is untimely and will not be heard.
2. The applicant's allegation that she was discriminated against when the College refused to readmit her with accommodation in 2013 is timely and will be heard.

order

40The 2013 allegation will proceed. As both parties have consented to mediation, the matter will be placed in the mediation queue.