Ferrari v. University of Toronto, 2014 HRTO 644

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mary Ferrari

Applicant

-and-

University of Toronto

Respondent

INTERIM DECISION

Adjudicator: Brian Cook

Date: May 6, 2014

Citation: 2014 HRTO 644

Indexed as: Ferrari v. University of Toronto

APPEARANCES

Mary Ferrari, Applicant

Self-represented

University of Toronto, Respondent

Sari Springer, Counsel

INTRODUCTION

1This Interim Decision is further to a telephone conference call hearing on April 17, 2014. The issues in the telephone conference call hearing included:

1. Whether the Application should be dismissed in part because some of the alleged events occurred more than one year before the Application was filed.

2. Clarification of the applicant's allegations.

3. The applicant's concerns about her ability to disclose documents which may be privileged.

4. The respondent’s concerns about releasing information about the applicant.

5. The applicant’s request to increase the amount of financial compensation she is seeking.

6. Whether allegations of discrimination on the basis of age and ethnic origin should be dismissed as having no reasonable prospect of success.

2In addition, the respondents had asked that the President of the University be removed as a respondent. At the telephone conference call hearing, the applicant agreed to this request on the understanding that anything the President did in respect of the applicant was done in the course of his duties as President and that any liability that might be found in this case would be the responsibility of the University. The President of the University is removed as a respondent on this basis.

BACKGROUND

3The applicant graduated from the respondent university with a Bachelor of Commerce in 1986.

4In the Application, the applicant alleges that in 2007 she attended a lecture at the University that was given by a professor employed by the University. Afterwards, she believed that the professor was communicating with her as she heard the professor’s voice in her head. The voices were distressing and she called the professor and told her to stop communicating with the applicant. The applicant states that she was charged by the police and had to attend court. It appears that charges were eventually dropped in exchange for a peace bond that lasted for 12 months, ending in March 2010.

5According to the respondent, the applicant engaged in harassing and disturbing conduct involving numerous professors at the University. According to the respondent, this behaviour started in the mid-1990’s and escalated to the point that the University issued a Trespass Notice in 2000.

6The respondent alleges that the applicant continued to call various individuals at the University and that some of the messages were disturbing.

7In approximately September 2010, after the peace bond had expired, the applicant asked the respondent’s campus police if the Trespass Notice could be lifted so that she could attend the university to take courses. The request was initially granted but was then rescinded. The respondent took the position that it would only consider lifting the Trespass Notice if the applicant provided a “forensic psychiatric risk assessment”. The applicant provided some information from her treating psychiatrist but the respondent was not satisfied it was sufficient. This decision was formally communicated to the applicant in a letter dated May 15, 2012.

8The Application was filed on February 26, 2013.

9The Application alleges that the applicant has experienced discrimination on the grounds of disability, race and age since approximately 2000.

THE TIMELINESS ISSUE

10Section 34 of the Code provides:

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.

11The applicant submits that there was a series of incidents in this case which started with the initial issuance of the Notice of Trespass in 2000 and lasted through the May 2012 decision to not lift the Notice, and to the present.

12The respondent concedes that the decision to not lift the Notice in May 2012 is an incident that occurred within one year of the filing of the Application although it does not agree that decision was discriminatory. However, the respondent notes that the issuance of the initial Notice in 2000 was obviously not something that happened within one year of the issuance of the Notice. The respondents say that the applicant makes no allegation of any series of alleged discriminatory events between 2000 and 2010. While the original Notice remained in effect in those years, the applicant does not appear to have sought to attend the University until 2010. It appears that she had no contact with the respondent for the duration of the peace bond, which was one year, ending in 2010. She then made a new request to be allowed to attend the University which was denied in 2012.

13The Tribunal has generally found that a series of alleged discriminatory incidents that are separated by a gap of more than one year are not a series of incidents for the purposes of section 34 of the Code.

14In this case, I find that the allegations about events that happened before 2010 are not timely. The events after the initial request in 2010 up to the formal letter in 2012 do appear to be an arguable series of alleged discriminatory incidents and the Application may proceed with respect to the applicant’s allegations about the events in the period from 2010 to 2012 and continuing.

15Having said that, it is clear that the Tribunal will need to hear evidence about the events prior to 2010 as these provide important context for both parties. The effect of the above finding is that the University would not be liable for any allegations of discrimination prior to 2010.

THE APPLICANT’S DOCUMENTS

16The applicant indicated that she believes she needs an order from the Tribunal to allow her to disclose documents she has in her possession because they may be privileged.

17As discussed at the telephone conference call hearing, it appears that any privilege that might attach to any of the documents the applicant is concerned about would be her privilege. She is entitled to waive any privilege that she may have concerning these documents. On the basis of the applicant’s description of the documents in her possession that she wishes to disclose, it does not appear that any order of the Tribunal is necessary and the applicant may disclose the documents to the respondent and the Tribunal.

THE RESPONDENT’S DOCUMENTS

18The respondent is concerned about releasing documents in its possession directly to the applicant. It is concerned that there may be health and safety concerns respecting the applicant if the documents were disclosed to the applicant.

19At the telephone conference call hearing, the applicant indicated that she is receiving continuing treatment from Dr. Samuel Packer, a psychiatrist.

20At the telephone conference call hearing, the following procedure was agreed to:

1. The respondent will send a package of the documents that it is concerned about to Dr. Packer. The respondent will ask Dr. Parker to review the documents and provide his opinion about whether he has any concerns as the applicant's treating psychiatrist if any of the documents were to be released to the applicant.

2. If Dr. Packer has no concerns about the release of the documents to the applicant, the respondent may release the documents to the applicant and the Tribunal.

3. If Dr. Packer does have concerns about any or all of the documents, he will outline the nature of that concern in a letter to the respondent. The respondent will provide a copy of that letter to the Tribunal and the Tribunal will then issue further direction.

21The respondent may send a copy of the Application, the Response, and its Request for Order During Proceedings concerning this issue, to Dr. Packer, along with a copy of this Interim Decision. Dr. Packer is requested to provide his response within three weeks of his receipt of the materials.

22The respondent has confirmed that it is prepared to cover reasonable costs associated with this review.

APPLICANT’S REQUEST TO INCREASE THE AMOUNT OF FINANCIAL COMPENSATION

23The applicant’s request to increase the amount of financial compensation she would like to receive in the event that the Application is successful is not opposed by the respondent and is granted on that basis.

REQUEST TO DISMISS ALLEGATIONS OF AGE AND RACE

24As discussed during the telephone conference call hearing, it does not appear to me that any allegations about age or race are likely to appreciably lengthen the hearing process or result in any prejudice to the respondent in terms of its ability to meet those allegations. These allegations are not dismissed at this time.