He v. University of Waterloo, 2014 HRTO 293

Human Rights Tribunal of Ontario

Between:

Liang He Applicant

-and-

University of Waterloo Respondent

Decision

Adjudicator: Alison Renton Date: March 6, 2014 Citation: 2014 HRTO 293 Indexed as: He v. University of Waterloo

Written Submissions

Liang He, Applicant Self-represented

1This is an Application filed on October 22, 2013 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to membership in a vocational association because of race, colour, ancestry, place of origin, citizenship, and ethnic origin. The applicant also completed a Form 1-D, pertaining to contracts and submitted a number of documents along with his Application. The applicant self identifies as “Asian, Brown color [sic], Han Ethnic, and from mainland China. I have a Chinese citizenship and a permanent resident status in Canada”.

2The Application is set out as a chronology. Essentially, it is about the termination of the applicant’s PhD program, his failure to receive a teaching assistant position, his disagreement with marks that he received in several courses, and the efforts the applicant has made to have his PhD program restored, including internal appeals about his marks to the respondent. The time period for the applicant’s allegations commences in July 2011 and ends in October 2013. According to the documentation that was filed by the applicant, the applicant received notice in the summer of 2012 that the respondent intended to terminate his PhD position on November 19, 2012. The documentation also establishes that the applicant received the decisions about his request for reconsideration and appeals commencing from October 22, 2012 to September 5, 2013.

3The Application has not yet been sent to the respondent for Response.

4The Tribunal issued a Notice of Intent to Dismiss (“NOID”) dated January 29, 2014 to the applicant. In the NOID, the Tribunal advised the applicant that it appeared that the Application was outside of the Tribunal’s jurisdiction because a review of the Application and the narrative setting out the incidents of alleged discrimination failed to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondent. The Tribunal requested that the applicant file written submissions addressing this issue, which the applicant did.

5In the email enclosing his written submissions to the NOID, the applicant stated:

If the provincial tribunal believes that what I had identified in the response letter as common practices in a public university, then please provide me with information to the next level in Canada human right tribunal system where I can further discuss my complaint.

6In his written submissions, the applicant submits that the Code prohibits discrimination pursuant to section 6, vocational association, his social status in Canada fits many of the enumerated grounds under section 6, and the respondent is a “self-governing occupational association that specializes in training her students”. Further, he submits that he would like to focus on identifying the unequal treatment that he endured from September 2011 to December 2012. This included: being forced to add two authors to a paper he published in December 2011; after doing so, failing to receive what his instructor had promised; having his supervisor refuse to sign a teaching assistant application; from December 2011 to December 2012, after publishing three international research papers, he was terminated from his research position; at the end of 2012, he was forced to include another graduate student in his research activity and when he refused to do so, his instructor accused him of plagiarism; and, he was accused of plagiarism after first being required to submit his manuscript for publication to his instructor and after the applicant had declared an intention to publish the manuscript.

Analysis

7Section 34(1) of the Code set outs a mandatory one year limitation period within which an application is to be filed. It appears, upon review, that the allegations in the Application are untimely given that the courses upon which the appeals were based took place in winter 2012 term, and the notice of termination of his PhD position was issued in summer 2012. However, since this was not identified as an issue in the NOID, the issue of possible delay is not being determined in this Decision.

8In considering the issue identified in the NOID, I note that the Tribunal has held that at this preliminary stage before the Application has been delivered to a respondent and a Response has been filed, the Tribunal will only dismiss an Application where it is plain and obvious that it is outside its jurisdiction. See Babic v. Ontario Disability Support Plan, 2014 HRTO 219 at para. 7. Upon my review, it is plain and obvious that this Application must be dismissed because it fails to identify any specific act of discrimination by the respondent.

9While the applicant marked off “vocational association” as the social ground upon which his Application is based, and completed Form 1-D contracts, the Tribunal has held that the social ground to which education applies is service, within the meaning of section 1 of the Code. See, for example, Fisher v. York University, 2011 HRTO 1229 at para. 65. “Vocational association” within the meaning of section 6 of the Code has been defined as including professional regulatory bodies and trade unions. See, for example, Hazel v. Ainsworth Engineered, 2009 HRTO 2180 at para. 59.

10In section 1 (services), section 3 (contracts), and section 6 (vocational associations) of the Code, the same 15 grounds are enumerated, including race, colour, ancestry, place of origin, citizenship, and ethnic origin which are the grounds upon which the application based his Application. Either considering the Application on the basis of section 1 (services), section 6 (contracts) or section 6 (vocational associations), the narrative does not establish any specific acts of discrimination within the meaning of the Code.

11The Tribunal has held on many occasions that it does not have the power to deal with general allegations of unfairness. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17.

12The Application, its narrative, and the written submissions filed in response to the NOID do not contain any allegations that would establish that the applicant was subjected to any specific incidents of discrimination under the Code or subjected to differential treatment by the respondent. While the applicant has self-identified on a number of Code grounds, he provides no connection or commentary between his Code grounds and the treatment that he allegedly received from the respondent. Further, he provides no allegations that he was subjected to differential treatment on a Code ground.

13When responding to specific questions on Form 1-D, contracts, to explain why he believed that he was discriminated against on the basis of race, colour, ancestry, place of origin, citizenship, or ethnic origin, he responded with, “I was doing as an ordinary PHD student should do at the university. However, I was classified as unqualified and plagiarizing outlier”. Although he had not marked off the ground “creed” on his Application form, on Form 1-D, contracts, and in response to the question “Explain why you believe you were discriminated against based upon your creed”, the applicant wrote, “I was forced to clean the office of then supervisor William Melek”. In response to being asked to describe his creed, he wrote, “Science. Technology”.

14Instead, the applicant marked off a number of boxes on his Application identifying the Code grounds upon which his Application was based, and then provided a chronology listing events that occurred to him while a PhD candidate with the respondent, including receiving a failing grade for allegedly plagiarizing work, being removed from the PhD program and details of his appeals and the decisions rendered in his appeals. What the applicant has provided is not sufficient to establish any Code connection and accordingly, I find that it is not plain and obvious that his Application triggers the Code.

15For these reasons, the Application is dismissed.