Hallelujah v. Queen’s University, 2014 HRTO 36

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paul Hallelujah Applicant

-and-

Queen’s University, Gregory Davies, Peter Judge, Peter O’Neill, Mansoor Husain, Henry Averns, Stephen Yates, Vijayalaxmi Prabhu and Jonathan Kerr Respondents

DECISION

Adjudicator: Paul Aterman Date: January 9, 2014 Citation: 2014 HRTO 36 Indexed as: Hallelujah v. Queen’s University

APPEARANCES

Paul Hallelujah, Applicant Self-represented

Queen’s University, Peter O’Neill, Henry Averns, Stephen Yates, Vijayalaxmi Prabhu and Jonathan Kerr, Respondents Diane Kelly, Counsel

Mansoor Husain, Respondent Caroline Jones, Counsel

Gregory Davies, Respondent Brieanne Brannagan, Counsel

Peter Judge, Respondent Amanda Smallwood, Counsel

1This Application alleges discrimination with respect to services because of race, ancestry, place of origin, ethnic origin, creed and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Reprisal is also alleged.

2On December 19, 2013 the Tribunal held a summary hearing to determine if this Application should be dismissed because the allegations either were not filed in a timely manner or because they have no reasonable prospect of success.

3For the reasons which follow the Application is dismissed.

Background and positions of the parties

The Applicant’s Position

4The applicant converted from Islam to Christianity in 1994. He was initially accepted as a student in the corporate respondent’s school of medicine in the fall of 2007.

5He alleges that in seven incidents beginning in February of 2008 and ending on December 13, 2011 Doctors O’Neill, Davies, Yates, Prabhu, Kerr and Averns, all faculty members of the medical school, discriminated against him on the basis of religion. These incidents allegedly include telling him to remove the crucifix he wears, trying to force him to choose between his faith and his intended career as a doctor, giving him low marks because of his refusal to conceal his religious beliefs, and telling him that members of the faculty would ensure that he would not graduate.

6The applicant maintains that all of these acts were orchestrated by Dr. O’Neill as a senior faculty member and that the other doctors, as more junior faculty, acquiesced in his direction.

7The applicant also alleges that his uncle, Dr. Husain, who is Muslim, has always disapproved of his having left the Muslim faith. He claims that Dr. Husain told him to keep quiet about his Christian beliefs, as if he did not this would jeopardise his professional career. When the applicant refused to do so, he claims that Dr. Husain contacted the dean of the medical school and questioned the applicant’s mental stability. This in turn resulted in the school requiring evaluations of his mental health. The school would not allow him to resume his studies without these evaluations.

8The applicant consented and underwent two evaluations, one by a psychologist, Dr. Judge, and the other by a psychiatrist. However, he then determined that he would not provide the evaluations to the university, as to do so would be to accept a violation of his Code and Charter rights to be free from religious discrimination.

9The applicant maintains that the corporate respondent and faculty members regard his religious beliefs as indicative of mental illness and that this stereotyping is clear evidence of discrimination.

10In that regard, he alleges that the June 25, 2012 evaluation by Dr. Judge resulted in this very stereotyping of his beliefs. He alleges that Dr. Judge’s conclusion that he has a psychiatric condition is discriminatory in that it wrongly assesses his religious beliefs as evidence of mental illness, and that this in turn has led the school to conclude that he cannot continue as a medical student.

11Finally, the applicant requests that his Application be amended to include the ground of disability, as he claims that the medical school’s requirement that his mental state be evaluated is discrimination based on perceived disability. The school initially communicated this requirement to him on October 6, 2011 and then by letter on December 15, 2011, September 4, 2012 and October 20, 2012. A letter dated June 13, 2013 informed him that if the assessment was not provided to the school by July 1, 2013 the school would consider that he had withdrawn from the program. He states that even if other alleged incidents are considered to be filed out of time, this last communication is a fresh incident of discrimination that makes his Application timely.

12For the purposes of determining all of the issues raised by the applicant I am prepared to accept the proposed amendment. This issue is addressed below. I note also that although the applicant identified race, ancestry, place of origin and ethnic origin as grounds of discrimination, the particulars in his Application and his submissions during the hearing focused only on creed and age as grounds of discrimination. Although the Application makes mention of a racist joke allegedly made by the respondent Dr. O’Neill in 2008, there are no particulars provided.

The Respondents’ Positions

13The corporate respondent and those respondents who are faculty members deny any religious or age-based discrimination. They state that the applicant initially performed satisfactorily in medical school, but then began to perform poorly in his clinical rotations in 2010. In the spring of 2010 the faculty held a hearing that resulted in a determination that the applicant had misrepresented information on his application for medical school. This resulted in a suspension of his student status for three years. On appeal this was reduced to one year, until May of 2011.

14A program was then established to reintegrate the applicant into medical school, provided he met a level of practice equivalent to his peers. An element of the plan required the applicant to submit reflective papers in which he was to outline the importance of adhering to professional and ethical standards as he progressed through medical school.

15The applicant did not perform well in the reintegration plan and, based on some of his reflective writings, faculty members began to have concerns that the applicant might have an undiagnosed mental health condition that was affecting his progress. As a result, the Progress and Promotions Committee of the faculty decided that the applicant should be assessed through the Ontario Medical Association’s Physician Health Services Program to see if he could continue studying.

16The applicant was referred to a clinic for an assessment and pending receipt of the assessment he was allowed to continue in a program of independent study, but not to follow the regular course of study. The respondents state that this was a decision taken in the interests of patient safety.

17Having initially consented to the assessment, the applicant then refused to release its results on the grounds that the process of assessing him was contrary to his Charter-protected right to freedom of religion.

18Dr. Husain acknowledges having talked to the dean in order to ensure that the applicant would be dealt with fairly in the hearing relating to misrepresentation on his application for admission. He also maintains that he provided financial support to the applicant to retain counsel for the appeal hearing which resulted in the three year suspension being reduced to a year. However he denies having suggested to the dean that the applicant had a mental illness.

19He also denies having engaged in any form of discrimination on the grounds that he is not a member of the university faculty and thus has had no influence over any of its decisions regarding the applicant.

20Finally, the respondent Dr. Judge denies discrimination on the grounds that when he evaluated the applicant it was with the applicant’s express written consent and he provided his professional opinion in good faith. He argues that the fact that the applicant disagrees with his assessment is not sufficient to show that it was discriminatory. He also argues that any adverse impact the applicant may suffer as a result of his evaluation is a matter that is determined not by him, but by the corporate respondent and its faculty.

Analysis

Delay

21Section 34 of the Code establishes a statutory time limit for filing applications, subject to certain exceptions. The relevant portions of section 34 are as follows:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

22In this case the one year period runs from December 5, 2011, which is one year before the Application was filed.

The allegations against Doctors O’Neill, Davies, Yates and Prabhu

23The allegations against these respondents predate December 5, 2011. The applicant argues that they are a series of events which are linked to each other and are also linked to events that occurred after that date. As a result these allegations are timely.

24The decision in Garrie v. Janus Joan Inc., 2012 HRTO 1955, provides a useful review of the Tribunal’s decisions on this issue and a framework of analysis for approaching such cases. The Tribunal examines how the decision of the Divisional Court in Visic v. Ontario Human Rights Commission, 2008 CanLII 20993 (ON SCDC), [2008] O.J. No. 1768 (“Visic”) has been applied. It then goes on to state, at paras. 38-42:

In our view, while there have been different trends in the Tribunal’s developing application of Visic, supra, a number of non-exhaustive principles emerge, which help to identify the distinction between an incident of discrimination and its continuing effects.

First, as the Divisional Court stated in Visic, supra, to establish that an occurrence is an incident of discrimination (as opposed to merely the continuing effects of an incident), a party must point to acts of alleged discrimination which could be considered as separate contraventions of the Code. At this stage of the inquiry, the focus is on whether the last conduct complained of could, on its own, support a finding of discrimination.

Second, the Tribunal looks to when the allegedly discriminatory decision or act occurred and considers whether this is distinct from the timing of its consequences. This appears to be the step at which many of the subtleties play out. At this stage, the focus of the inquiry should be on whether the incidents in question involve fresh steps taken by the parties, each step giving rise to a separate alleged breach of the Code. This interpretation flows from the court’s language in Visic, supra. It also finds support in the arbitral jurisprudence, which has generally held that, even where the conduct complained of has continuing effects, there is no series of incidents unless the respondent takes a fresh step that could constitute a separate breach of the collective agreement. See Port Colbourne General Hospital (1986), 1986 CanLII 6715 (ON LA), 23 L.A.C. (3d) 323 (Burkett).

Thus, allegations concerning a discrete, non-continuing violation (such as the imposition of discipline or the failure to promote or hire) may have ongoing consequences but, without more, do not amount to a series of incidents within the meaning of the Code because they do not involve any fresh steps taken past the initial alleged incident of discrimination. Similarly, without more, the fact that a respondent maintains a decision it has already taken does not involve a fresh step, nor does it give rise to a separate breach of the Code. See, for example, Longtin, supra.

Third, the Tribunal has also considered when the consequences of the alleged discrimination are manifest for the applicant. For example, in cases where a respondent has terminated an applicant’s employment, the Tribunal has generally applied Visic, supra, to mean that the limitation period runs from the date the employment relationship ends: Longtin, supra. This is because, while a failure to provide a particular payment or benefit may be ongoing beyond the end of the employment relationship, the consequences of severing it are generally manifest as of the date of termination. In such cases, the Tribunal has not interpreted the ongoing failure to provide a benefit or payment upon termination as a series of fresh events. The termination of the employment relationship is the act which is discriminatory rather than the ongoing payments.

25The allegations regarding Doctors O’Neill, Davies, Yates and Prabhu are all creed-related. The applicant argues that they are all linked by a common thread, namely Dr. O’Neill’s direction to more junior faculty to discriminate against the applicant. I asked the applicant what evidence he could point to that would show that Dr. O’Neill orchestrated such a concerted course of action. Although the applicant could not point to any evidence that would support his belief, I am prepared to assume for the purposes of determining whether there was delay, that they are linked in that they are incidents of a similar character – they relate to the applicant’s wearing of a crucifix and refusing to conceal or downplay his religious beliefs – and were allegedly all perpetrated by the corporate respondent’s faculty members.

26However, there is no link between the incidents before December 5, 2011 and the incidents that follow that date. As I understand the applicant’s argument, he maintains that the incidents before December 5, 2011 are linked to an incident on December 13, 2011 when the respondent Dr. Averns is said to have informed the applicant that he was not passing the requirements of the reintegration program. The applicant maintains that Dr. Averns said to him “Paul, you are forty, what are you going to do now?” The applicant argues this to be an incidence of age discrimination. I am not satisfied that there is a reasonable prospect that the applicant can show that this question was discriminatory. The applicant does not contest that was his age at the time the remark was made and that he was failing the course. While the applicant feels that he was being failed because of his beliefs and not because of his academic performance, he does not point to any adverse consequences that flow from this remark itself.

27Moreover, even if I were to consider the remark to be discriminatory, as an instance of age discrimination it is wholly different in character from the alleged incidents of creed-based discrimination that precede it. This difference in character breaks the chain of continuity between this incident and the ones prior to December 5, 2011.

28In describing the conversation with Dr. Averns, the applicant makes reference to Dr. Averns having said: “There are people at the medical school who do not want you to graduate”. He says that this is evidence of Dr. Averns’ acquiescence in Dr. O’Neill’s direction to discriminate against him on religious grounds. However, this remark is not alleged to have been made on December 13, 2011, but rather in the summer of 2011, well before the year that preceded the filing of this Application.

29The other alleged incidents of discrimination which postdate December 5, 2011 are the assessment of the applicant by Dr. Judge and the corporate respondent’s June 13, 2013 communication to the applicant that his failure to provide it with the assessment results by July 1, 2013 would be deemed a withdrawal from the faculty of medicine.

30The assessment by Dr. Judge is not linked to the alleged discrimination by Doctors O’Neill, Davies, Yates and Prabhu. Dr. Judge is a psychologist in private practice, not an employee of the corporate respondent and not a colleague of any of the other personal respondents. The alleged discrimination stems from his assessment of the applicant’s mental state, and is unconnected to the actions allegedly taken by Doctors O’Neill, Davies, Yates and Prabhu. It is different in character from what is alleged to have occurred before December 5, 2011. From this I conclude that the alleged actions of Dr. Judge do not form a link with the alleged actions of Doctors O’Neill, Davies, Yates and Prabhu.

31I also conclude that the alleged discrimination by the corporate respondent through its letter of June 13, 2013 is not in fact a fresh incident of discrimination, but instead a continuation of action taken by the corporate respondent through its letter to the applicant dated October 6, 2011. The reasons for this are explained below. As a result of this conclusion I find that there is also no link between the alleged acts of discrimination by Doctors O’Neill, Davies, Yates and Prabhu and the corporate respondent’s letter of June 13, 2013 such that they would constitute a series of incidents. The effect of these findings is to conclude that the alleged acts of discrimination by Doctors O’Neill, Davies, Yates and Prabhu have not been raised in a timely manner.

The allegations against Dr. Husain and Queen’s University

32The applicant argued that the decision of the corporate respondent to require him to undergo an evaluation to determine whether he could continue as a student, and the subsequent letters to him that reiterate this requirement, consisted of a series of events that culminated in the corporate respondent’s letter of June 13, 2013. The applicant has characterised these actions as both discrimination on the basis of perceived disability and as a reprisal by the corporate respondent for the applicant having asserted his right to be free from religious discrimination. These incidents are said to begin with Dr. Husain contacting the dean of the faculty in September of 2011 and suggesting that the applicant had a mental illness.

33The applicant claims that the corporate respondent acted on the suggestion planted by Dr. Husain by sending him a letter dated October 6, 2011. This letter informs the applicant that he needs to undergo an evaluation. Until the evaluation is provided to the Progress and Promotion Committee and the Committee also determines that he can carry on with his studies, he is not allowed to enter the next stage of the program.

34The applicant believes that Dr. Husain set this chain of events in motion. Although the applicant can point to no evidence that Dr. Husain made the suggestion to the dean that he was mentally ill, even if I were to accept that this occurred, Dr. Husain does not stand in the relationship of a service provider to the applicant for the purposes of the Code. Dr. Husain is a family member. If any liability exists, it is as against the university and not as against Dr. Husain. For these reasons the allegations against Dr. Husain are dismissed.

35It is clear from the university’s October 6 letter that the applicant’s continued study depends on providing an evaluation of his mental state to the Committee. In other words, it was evident to the applicant when he received this letter that a refusal to undergo the evaluation, or to undergo it but not provide the results to the Committee meant that his suspension would continue. If the applicant felt that this requirement was discriminatory or an act of reprisal, then he could have brought an Application at that time.

36In my view, the subsequent letters, including the ultimatum of June 13, 2013, all flow from the original letter of October 6, 2011. The issuing of these subsequent letters do not constitute fresh events within the meaning explained in Garrie above, as the consequences of the alleged discrimination were manifest in the October 6 letter and the subsequent letters simply reiterate the position of the university. For these reasons I conclude that the alleged discrimination by the corporate respondent in issuing the October 6, 2011 letter has not been brought in a timely manner. In addition, I conclude that none of the subsequent letters from the university, including the one sent on June 13, 2013, are fresh incidents of discrimination.

Was the delay incurred in good faith?

37The applicant argues that any delay in filing an Application was attributable to the fact that from 2008 through 2011 he pursued various avenues of redress within the university. These included meeting with the staff of the university responsible for the protection of human rights, the university’s ombudsperson, various student representatives and the university’s Dispute Resolution Manager. He maintains that his attempts to resolve matters internally demonstrate good faith.

38He also argues that he feared that if he raised complaints outside of the university’s established channels, this would only jeopardise his prospects further. This is based on his belief that the university staff, and Dr. O’Neill in particular, are vindictive.

39The Tribunal has set a high onus on applicants to demonstrate that a delay was incurred in good faith (see Klein v. Toronto Zionist Council, 2009 HRTO 241).

40The Tribunal has held that choosing to pursue other proceedings before initiating an Application is generally not sufficient to justify a delay under the good faith exception (see Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670).

41In my view this reasoning applies here. The applicant’s explanation that what stopped him from filing an Application within time while simultaneously pursuing redress within the university was his fear of reprisal. However, his fear is supported by nothing other than speculation. The applicant has not advanced any other explanations that might bring his delay in filing within the good faith exception. I find that he has not shown that the delay was incurred in good faith.

42Having arrived at that conclusion, it is not necessary for me to consider whether any substantial prejudice will result to any person affected by the delay (see: Esanu v. Georgetown Men’s Non-Contact Hockey League, 2009 HRTO 579 at para.16).

No reasonable prospect of success

43The remaining allegations in this Application are ones that occurred within a year of the filing of the Application. These are that Dr. Averns discriminated against the applicant during the conversation that took place on December 13, 2011 and that Dr. Judge discriminated against the applicant in conducting his evaluation on June 25, 2012.

44For the reasons I have set out in paragraph 25 above I conclude that the allegation that Dr. Averns’ remark: “Paul, you are forty, what are you going to do now?” has no reasonable prospect of success.

45The allegations against Dr. Judge are that he discriminated in his assessment of the applicant by wrongly concluding that the applicant’s religious beliefs were indicative of a mental illness.

46The applicant maintains that Dr. Judge wrongly concluded that a sample of the applicant’s writing was inappropriate for a medical student to have written. The writing was in fact prepared as part of the applicant’s work in a Masters of Theology course, and not as part of studies in medicine.

47Assuming that Dr. Judge was wrong in his understanding of the purpose for which the document was prepared, there is no evidence that this error of fact resulted in treatment by Dr. Judge which caused the applicant a disadvantage.

48The applicant also alleges that the approach taken by Dr. Judge throughout the assessment was informed by a discriminatory attitude toward his religious convictions. The most obvious instance of this was when Dr. Judge is said to have snorted in disbelief when the applicant indicated that he could not rule out the possibility that people might be resurrected.

49The applicant cannot point to any evidence that discrimination was a factor in the approach Dr. Judge took to assessing him. The assessment inevitably entailed discussion of the applicant’s religious beliefs because his beliefs play a central role in how the applicant views himself and how others, including staff on the faculty of medicine, view him. However, it does not follow from this that the applicant’s beliefs were a factor that improperly influenced Dr. Judge’s conclusions.

50The report prepared by Dr. Judge is lengthy and detailed. It chronicles the applicant’s life, his academic and professional history, his past and present states of health and the results of tests administered as part of the assessment. Dr. Judge’s conclusion that the applicant had a psychiatric condition is founded on, among other things, information provided to him by the applicant about past hospitalisations and drug use.

51There is nothing on the face of the report that would indicate discrimination was at play or that his religious beliefs were taken into account in an improper way in the conduct of the assessment and the applicant could not point to any evidence in support of his allegation, beyond the fact that Dr. Judge snorted at one of his responses. Assuming that Dr. Judge did snort in the manner described by the applicant, this reaction is not, of itself, sufficient to establish discrimination.

52Essentially the applicant disagrees with Dr. Judge’s assessment. However, the Tribunal has held that, absent evidence of discrimination, disagreeing with a medical professional’s opinion is not sufficient to found an allegation of discrimination (see Wilson v. Dixie Road Medical Association, 2011 HRTO 1607 and Gregoire v. Ontario (Government Services), 2013 HRTO 1218). I conclude from this that the allegation against Dr. Judge has no reasonable prospect of success.

Order

53The Application is dismissed.