HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Haruyo Taucar
Applicant
-and-
The University of Western Ontario, Donna Pennee and Lisa Ann Korab
Respondents
B E T W E E N:
Haruyo Taucar
Applicant
-and-
Western University
Respondent
INTERIM DECISION
Adjudicator: Mark Hart
Indexed as: Taucar v. University of Western Ontario
WRITTEN SUBMISSIONS
Haruyo Taucar, Applicant
Christopher Taucar, Counsel
The University of Western Ontario, Western University, Donna Pennee and Lisa Ann Korab, Respondents
Barry Brown, Counsel
1These are two Applications alleging violations of the applicant’s rights under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The first Application (2010-05429-I) is dated April 17, 2010, and alleges discrimination with respect to employment because of disability and reprisal. This Application was the subject of an Interim Decision of this Tribunal dated October 11, 2013 (2013 HRTO 1725, upheld on reconsideration at 2014 HRTO 63), in which certain allegations were dismissed. The remaining allegations relate to an alleged failure to adequately accommodate the applicant’s needs arising from a disability and an alleged disability-related comment.
3The other Application (2013-16300-I) is dated December 4, 2013, and alleges reprisal in relation to the cancellation of a summer course in 2011 and the failure to hire the applicant to teach courses for the 2013-14 academic year.
4The purpose of this Interim Decision is to address the applicant’s request for consolidation of these two Applications, to address the respondent University’s request to strike certain paragraphs from the reprisal Application, and to set out next steps.
Request for consolidation
5The applicant in her reprisal Application has requested consolidation of that matter with the remaining allegations in her first Application. While she also has requested consolidation with a third Application (2010-07219-I), that Application was dismissed by Decision 2013 HRTO 597, dated April 10, 2013 (upheld on reconsideration at 2013 HRTO 964), and as a result there is no active Application at this Tribunal that can be the subject of consolidation.
6The respondents oppose consolidation on the basis that the subject matter of the two Applications is entirely distinct.
7The test for consolidation has been set out in Persaud v. Toronto District School Board, 2008 HRTO 25, as follows:
I adopt from the decision of the Canadian Human Rights Tribunal in Lattey v. Canadian Pacific Railway, 2002 CanLII 45928 (CHRT), the following factors that should be considered in the context of whether to consolidate or hear two proceedings together:
The public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results;
The potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and
Whether there are common issues of fact or law.
8In the instant cases, I certainly appreciate the respondents’ position that the subject matter of the two Applications is distinct, except to the extent that the applicant’s assertion of her rights under the Code in relation to the issues raised in the first Application provides a foundational basis for her reprisal allegations.
9At the same time, the respondents have not asserted any specific prejudice that would result to them from granting the applicant’s request for consolidation. Further, in my view, considerations of adjudicative economy and avoiding a multiplicity of proceedings favour granting the applicant’s request.
10Accordingly, I hereby grant the applicant’s request that these two Applications be consolidated and heard together.
Respondent’s request to strike paras. 23 to 30 of the Reprisal Application
11In its Response, the respondent University has requested that paras. 23 to 30 of the reprisal Application be struck on the basis that they are irrelevant and in addition constitute a repetition of allegations that already have been ordered struck from the applicant’s first Application (see 2013 HRTO 1725).
12The applicant objects to this request on the basis that these paragraphs are relevant and material in support of her claims made in the reprisal Application, including the respondent University’s alleged further actions of hostility and reprisal against the applicant.
13Paragraphs 23 and 24 allege generally that the University has exhibited and/or made statements or actions of hostility or reprisal toward the applicant over a period of time, and that the University’s conduct towards the applicant has been unfair, egregious, bad faith, arbitrary, and high-handed. Paragraph 25 sets out an allegation about a “short fuse” deadline imposed by the University and Dean Pennee in relation to an issue raised by the applicant regarding an alleged violation of copyright. This allegation was raised in the applicant’s first Application and dismissed in the decision dated October 11, 2013.
14Paragraphs 27 to 30 set out certain allegations arising from an internal complaint filed by the applicant with the University and alleged bias in the constitution of the hearing panel. These allegations were raised in the applicant’s first Application and dismissed as irrelevant in the Tribunal’s decision dated October 11, 2013.
15Paragraph 26 contains a further general allegation that there are a number of statements and incidents that can be cited concerning the University’s hostility and reprisal towards the applicant which will be submitted at the hearing in this matter. This in my view is not a proper allegation, and any alleged allegation of a violation of the Code by the University needs to be set out in the Application. The applicant cannot effectively conduct a trial by ambush by raising new allegations for the first time at the hearing.
16The essence of the applicant’s reprisal Application is that, because she previously had sought to claim and enforce her rights under the Code, the University reprised against her by cancelling a summer course that she previously had taught and by failing to hire her to teach courses for the 2013-14 academic year. What is relevant to those allegations is: first, the fact that the applicant had previously sought to claim and enforce her Code rights; and second, the allegation that the impugned actions were taken by the University because of the applicant’s prior assertion of her Code rights.
17None of what is set out in paras. 23 to 30 of the Application is relevant to these reprisal allegations. If it is alleged that the University violated the applicant’s rights under the Code in some other respect, then any such allegation needs to be clearly articulated. In fact, in relation to the alleged imposition of the “short fuse” deadline by Dean Pennee, an allegation of a violation of the Code arising out of this action previously had been raised by the applicant in her first Application and was dismissed. In relation to the issue of the composition of the hearing panel addressed at paras. 27 to 30, no allegation was raised in the first Application that these events gave rise to any violation of the applicant’s Code rights and they were dismissed. These allegations are no more relevant now than they were at the time they were made in the first Application. Whether the University engaged in high-handed, arbitrary, bad faith, or egregious behaviour is not an issue under the Code except to the extent that any such alleged behaviour is specifically linked to an allegation of a violation of a specific right protected under the Code. No such connection or link exists here in relation to these paragraphs.
18Further, while there are general statements interspersed among the impugned paragraphs which use the term “reprisal”, which is connected to a right protected under the Code, either no specifics or particulars of any such alleged conduct are provided except for the cancellation of the summer course and the failure to hire the applicant, or no specific allegation is made that the conduct articulated was undertaken because of any assertion of the applicant’s Code rights or the applicant is re-raising allegations that already have been dismissed.
19Accordingly, for these reasons, the respondent University’s request is granted and paragraphs 23 to 30 of Schedule A to the Application are struck.
Next steps
20These two Applications will now proceed to be scheduled for a hearing in London, Ontario. The Tribunal will schedule two hearing days for the initial appearance of the parties, and will issue a notice of hearing shortly.
21In relation to the allegations raised in the Application, I am concerned about the relevance of the allegations set out at paras. 2 to 14 of Schedule A. As previously indicated, what is relevant to the reprisal allegations is the fact that the applicant previously sought to claim and enforce her rights under the Code, not the substance of those allegations. In addition, in these paragraphs, the applicant appears to be re-raising issues that either have been dismissed by this Tribunal or withdrawn by her or are already the subject of the first Application.
22I also am concerned about delay in raising the allegations regarding the cancellation of the summer course in 2011 and the extent to which this allegation can properly be considered part of a “series of incidents” that extends to and includes the applicant’s allegation about not being hired to teach courses for the 2013-14 academic year.
23Accordingly, I am inviting written submissions from the parties regarding the these two issues. The applicant shall serve and file her written submissions within two weeks of the date of this Interim Decision, the respondent University shall serve and file its written submissions within a further two weeks, and the applicant may file any written submissions in reply within a further seven calendar days.
ORDER
24For the foregoing reasons, I hereby make the following order:
a. Application 2010-05429-I and Application 2013-16300-I are hereby consolidated and will be heard together;
b. Paragraphs 23 to 30 of Schedule A to Application 2013-16300-I are hereby struck; and
c. The parties shall serve and file written submissions regarding the issues identified at paras. 21 and 22 above in accordance with the following schedule:
i. The applicant shall serve and file her written submissions within two weeks of the date of this Interim Decision,
ii. the respondent University shall its written submissions within a further two weeks, and
iii. the applicant may file any written submissions in reply within a further seven calendar days.
Dated at Toronto, this 21st day of November, 2014.
“Signed by”
Mark Hart
Vice-chair