HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mokhtar Beldjehem
Applicant
-and-
University of Ottawa (Telfer School of Management) and Jacques Barrette
Respondents
DECISION
Adjudicator: Paul Aterman
Indexed as: Beldjehem v. University of Ottawa (Telfer School of Management)
APPEARANCES
Mokhtar Beldjehem, Applicant
Self-represented
University of Ottawa (Telfer School of Management) and Jacques Barrette, Respondents
David Bolger, Counsel
Introduction
1In August of 2011, shortly before the start of the university fall term, the applicant was hired by the respondent university’s Telfer School of Management (“Telfer”) as a part-time professor. He started teaching two courses, but after three weeks of classes his contracts were terminated.
2The applicant self-identifies as Algerian in origin and as a believer in Islam. He says that his race, colour, ancestry, place of origin, ethnic origin and creed were factors in the decision to end his contracts. These are the grounds set out in the Application he filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
3The respondents say that the applicant did not meet Telfer’s teaching standards, that many students complained about his teaching and that there was nothing discriminatory about the decision to terminate his employment.
4This Application was heard on April 17, 2014. The applicant testified on his own behalf and he did not call any other witnesses. At the conclusion of his evidence I explained to the parties that the Tribunal may not need to hear further evidence if it appears that the Application has no reasonable prospect of success (see Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777). The parties then made their arguments on this issue. Following the hearing the applicant forwarded additional documents and submissions to the Tribunal. I have considered these, despite the fact that I did not request further evidence or submissions from the parties.
5This Application has no reasonable prospect of success. As a result, it is dismissed. The reasons explaining why are set out below.
background
Events leading up to the start of classes
6Classes in the fall term at Telfer start in early September. On August 3, 2011 Isabelle Paquet, who is an administrator at Telfer, sent the applicant an email with an offer to teach two courses. One course, ADM1770, is a general introduction to the use of information technology in support of the management of organizations. The other course, ADM2772, is more specialized and provides an introduction to information systems that are specifically designed to support managers in operational decision-making.
7On the same day the applicant replied and accepted the offer. Within an hour Ms. Paquet sent the applicant an email which reads:
Thank you for the quick response. I’ve attached an information document for teaching at the School and the University in general. It has information on procedures and also a list of contact people, sessional dates, etc. I’ve also put the course coordinator on Cc to this message so that you can go over the course outline requirements, etc. Professor Muriel Mignerat is coordinating both courses you will be teaching this fall.
Please don’t hesitate to contact me if you have any questions.
8Ms. Paquet failed to attach the information document to the email. Although the applicant did not contact her to point out this omission, he maintains that this failure to provide him with basic orientation material for new professors was the first in a series of deliberate discriminatory acts by the respondents to undermine his chances of succeeding as a teacher at Telfer.
9On September 6, 2011 the applicant emailed Professor Mignerat, the course coordinator, asking her to provide him with the names and email addresses of the teaching assistants assigned to his courses so that he could get in touch with them. She responded on the same day and expressed surprise that he was asking for this because she had already been copied on at least six emails on this issue that were sent to him at his university email account.
10Classes started on September 7. On September 8 the applicant wrote to each teaching assistant, asking them for their student numbers and university email addresses. He also indicated that they needed to meet to discuss how the courses would be taught. He proposed a meeting date for the following week, but the meeting did not occur as one of the teaching assistants, Ryan Briggs, was not available on the suggested date. In further email exchanges on September 19, 21 and 22 the applicant asked the teaching assistants to confirm that they could access the information for each course on the university’s Black Board Vista learning management system, and they did so.
11After the applicant was terminated Professor Mignerat contacted the teaching assistants to ensure that they would carry on working with the professors who took over the applicant’s courses. They indicated to her that the applicant had not given them any direction as to what to do in their courses. One of the teaching assistants, Marco Tascona, emailed Professor Mignerat to say that he had tried to get in touch with the applicant a number of times without success. The applicant maintains that Marco Tascona is lying when he says that.
Students complain about the applicant’s teaching
12The applicant started teaching on September 7. He was 15 minutes late for his first class in ADM1770 because he was given the wrong information by the university as to which classroom he was supposed to use.
13On September 13 one of the students in ADM2772 sent a written complaint to the Academic Administrator at Telfer about the applicant’s teaching of that class. The student complains that the applicant spoke inaudibly, and refused to use the microphone in the classroom despite being asked to by the students. The complaint goes on to state:
Juste à la vue de son nom, nous savons qu’il est d’une autre nationalité. Il n’y a rien de mal là-dedans; au contraire. Vive la diversité!
[TRANSLATION]: Just by looking at his name, we knew that he had some other nationality. There is nothing wrong with that; on the contrary, long live diversity!
14Reading the statement as a whole it is clear that the student’s professed celebration of diversity is sarcastic and that this is an expression of racism.
15The complaint goes on to state that the student cannot understand the applicant’s French because he has a strong accent. The student claims to have confirmed that other students could not understand the applicant, and that as a result none of the students were paying attention throughout the class.
16Telfer then began to receive written complaints from students in both of the applicant’s courses. There were four complaints from students in ADM1770 and six further complaints from students in ADM2772, for a total of 11 written complaints. One of the complaints in relation to ADM2772 was signed by seven students. In total 17 students complained to Telfer in writing between September 13 and September 30. In addition, on September 16 at least five students complained to the Academic Administrator in person.
17The applicant disputes the number of complaints that were made. At the hearing he initially maintained that three students had complained, then indicated that there were six complaints. He maintains that although one of those six complaints was signed by seven students, it should only be treated as a single complaint. In his post-hearing submissions he took the position that there were seven complaints in total and that although three students in ADM 2772 had submitted individual complaints, these should be treated as a single complaint because those three students were part of the same work team in the course.
18In addition to the students mentioned by the applicant in his post-hearing submission as having complained, the respondent’s documents include complaints by two additional students. The complaints from those students are found in the second section of the respondents’ Book of Documents at Tabs 29 and 35.
19In my view, when seven students sign a common complaint about the applicant’s teaching, it means that each of the seven students is expressing to Telfer their individual dissatisfaction with the applicant’s teaching. Similarly, when three students each make complaints individually, the fact that they were assigned to work together in a team does not negate the fact that each of the three students is expressing a concern to Telfer’s administration.
20With the exception of the first complaint, none of the complaints make reference to the applicant’s race, colour, ancestry, place of origin, ethnic origin or creed.
21The complaints assert a wide range of concerns. These include alleging that the applicant sometimes failed to appear for class, sometimes started classes later than the scheduled time and sometimes earlier. They claim that the applicant took long breaks during the classes. They allege that the applicant departed from the syllabus, would change the weight of evaluations from the ones published in the syllabus, would not clearly communicate expectations such as due dates for assignments or would change the nature of assignments with little notice. They claim that the applicant was insulting to students and allowed class time to be taken up with disrespectful exchanges between him and students. Many of the complaints demand that the administration take action because the students are paying fees for these courses, and a number of complainants request that their course fees be refunded.
22A number of the complaints state that the applicant was difficult to understand, in part because of his accent and also because it was hard to hear what he was saying. Some of the complaints mention that he refused to use a microphone in class, despite being requested by students to do so.
23Apart from three written complaints referred to below, the applicant was not shown the complaints before he was terminated. He first read them when they were disclosed in the Tribunal’s process. He initially stated that Telfer had fabricated some of them. He then indicated that he did not know whether any were fabricated or not, but is sure that the complaints are not well-founded. He says that the students should have come to him first to discuss their concerns rather than complaining to the school’s administrators. In any case, the applicant maintains that Telfer and the personal respondent did not properly investigate the complaints and if they had done so, they would have found them to have no merit.
24The applicant produced two supportive emails from students. One states that his French is excellent and that he should ignore the criticisms of other students in the course. The other says that she is shocked by the rude behaviour of students in his class and that he has her support.
25The personal respondent, who is the associate dean of programs at Telfer, sent the applicant an email on September 16. He explains that Telfer has received a number of complaints about the teaching of both courses. He then makes the following request:
Dans un souci d’obtenir plus d'information et de vous aider face à cette situation nous aimerions vous rencontrer pour en discuter. Seriez-vous disponible lundi matin 9:00 pour me rencontrer, ainsi que Ia directrice du programme Mme Julie Beauchamp, à mon bureau au Pavilion Desmarais 4112?
[TRANSLATION]: In order to obtain additional information and help you deal with this situation, we would like to meet with you in order to discuss the matter. Please let me know whether you will be available to meet with me and the program director, Julie Beauchamp, at 9:00 a.m. on Monday in my office at Pavilion Desmarais 4112.
26The applicant replies the same day as follows:
Monsieur ou Madame,
Vous vous proposez de m'aider, OK.
Auriez-vous l’amabilité de :
me fixer les locations des salles de cours et labs une fois pour tout,
de s'assurer que les Micros fonctionnent toujours dans les salles de cours
de m'attribuer une adresse courriel Telfer et me fournir mon mot de passé et de communiquer avec moi via cette adresse. Je suis un employée!
bureau pour pouvoir rencontrer les etudiants, TAs, correcteur ...etc.
une boite de courrier
C'est un minimum pour travailler pour Ie moment.
Ce lundi c'est impossible, je suis pris, merci de me donner un autre rendez-vous. Entre autres, merci de m'envoyer les textes de ses plaintes pour que je puisse les lire.
[TRANSLATION]:
Dear Sir/Madam:
You are offering to help me; OK.
Could you please:
establish my classroom and lab locations once and for all.
ensure that the microphones in the classrooms are always working.
Give me a Telfer email address as well as a password and communicate with me via this email address. I am an employee!
Give me an office where I can meet with students, teaching assistants, markers etc.
A mailbox
These constitute a minimum requirement for work at this time.
A meeting this Monday will not be possible, as I am otherwise engaged. Thank you for providing me with another time for a meeting. Please also send me the texts of the complaints so that I can read them.
27The meeting was scheduled for September 20. On the day before, Telfer sent the applicant the three complaints that it had received by that date. The names and student numbers of the complainants were redacted.
28The applicant’s evidence is that the meeting took place on September 20 between him and the personal respondent. Professor Beauchamp, the program director, was not present. He maintains that the three complaints were discussed and that the personal respondent assured him that the complaints arose out of a lack of logistical support from Telfer and that this was something beyond the applicant’s control. He states that the quality of his teaching was not discussed.
29The applicant maintains that there was one instance when he could not use the microphone in class because it was not functioning. He contacted the university’s technical support staff to have it fixed. Otherwise he always used a microphone.
The applicant’s contracts are terminated
30Telfer continued to receive complaints after the meeting between the applicant and the personal respondent. The personal respondent sent the applicant an email on October 3, 2011 terminating his employment. It reads:
Monsieur Beldjehem,
Comme vous Ie savez, Ie bureau du premier cycle et Ie bureau du doyen ont reçu plusieurs plaintes de la part de vos étudiantes et étudiants dans le cadre du cours ADM2772 Systèmes d'information et de gestion. Ces plaintes concernaient la difficulté pour Ies étudiants à vous comprendre en I'absence du micro et à votre résistance d'utiliser cet outil pour vous faire comprendre dans une grande classe. Je vous ai fait parvenir également plusieurs autres plaintes d’étudiants du cours ADMl770 Applications des technologies de I'information en gestion soulignant les retards et votre absence au cours du 9 et du 16 septembre. Ces plaintes écrites s'ajoutaient à plusieurs plaintes verbales des étudiants communiquées aux responsables des programmes tant pour Ie cours ADM2772 que ADM1770 et concernait la manque d'organisation et de préparation lors de la livraison du cours. Suivant ces plaintes je vous ai rencontré pour discuter de ceci. Malgré Ie fait que vous n'acceptiez pas plusieurs de ces plaintes, vous vous êtes engagé suite à notre rencontre à utiliser Ie micro et à mettre en place des stratégies de solutions afin d'effectuer Ie rattrapage des leçons de même que de rétablir un climat positif en classe.
J'espérais que, suivant notre rencontre du mardi 20 septembre à 16 h 30, la situation allait s'améliorer mais d'autres étudiants sont venus depuis Iors porter plainte au bureau de la Directrice du programme de premier cycle sur des sujets de plus en plus sérieux. Les sources de mécontentement sont multiples: manque de respect de la structure de cours, manque de respect des ententes quant aux travaux à remettre, de l'horaire de cours, des échéanciers décrits dans le syllabus, manque de rétroaction et d'explication sur les travaux à remettre, manque de respect des étudiants qui se sont vu ignorés et insultés; manque de respect du temps en classe.
Cette situation est tout à fait inacceptable car elle compromet énormément l'apprentissage des étudiants, la réputation du programme et de l'École de gestion Telfer. Compte tenu que la situation s’est empirée plutôt que de s'améliorer j'ai pris la décision de vous retirer du cours ADM2772A et ADMl770 et de terminer votre contrat dans I'immédiat. Un membre régulier du corps professoral prendra la relève des cours pour les prochaines classes et ce, à compter du mercredi, 5 octobre.
[TRANSLATION]:
Dear Mr. Beldjehem,
As you are aware, the Undergraduate Studies Office and the Dean’s Office have received several complaints from your students about course No. ADM2772 Systèmes d'information et de gestion/Management Information Systems. These complaints concerned the fact that the students find it difficult to understand what you are saying when you do not use a microphone as well as your resistance to using this tool so that you can be heard in a large classroom. I also sent you several other complaints by students in course No. ADMl770 Applications des technologies de I'information en gestion/Applications of Information Technology for Business, highlighting your lateness for classes and your absence from class on September 9 and 16. These written complaints were in addition to several verbal complaints from students that were communicated to the staff responsible for the study programs for both course No. ADM2772 and ADM1770 and referenced a lack of organization and preparation during teaching of the courses. After receiving these complaints, I met with you in order to discuss the matter. Despite the fact that you rejected several of these complaints, you had agreed, following our meeting, that you would make use of the microphone and implement strategies for solutions in order to provide makeup lessons and restore a positive climate in the classroom.
I had hoped that the situation would improve following our meeting on Tuesday September 20, at 4:30 p.m., but since then, a number of other students have come to the Office of the Director of the Undergraduate Program to report increasingly serious concerns. There are multiple sources of discontent: lack of respect for the course structure, lack of respect for arrangements concerning assignments to be submitted as well as for the course schedule and deadlines indicated in the syllabus; lack of feedback and explanations for work to be submitted, lack of respect for students who feel ignored and insulted and lack of respect for class time.
This situation is completely unacceptable as it significantly compromises student learning, the reputation of the program and the Telfer School of Management. Given that the situation has worsened rather than improved I have decided to remove you from teaching course Nos. ADM2772A and ADMl770 and terminate your contract effective immediately. A regular faculty member will take over teaching of future classes as of Wednesday October 5.
31On the day after the applicant was told that his contracts were terminated, Professor Mignerat sent an email to the personal respondent. In it she says that the applicant had logged into the university’s learning management system and deleted the course content for ADM1770 and ADM 2772. She had developed the course content. The applicant denies having done this.
32The applicant contacted his union and asked it to intervene to contest his termination. The union made inquiries of the personal respondent and he sent the union an explanation of why he had decided to end the applicant’s contracts. The union did not proceed with a grievance.
33On October 5, 2011 the applicant had a telephone conversation with Professor Beauchamp. She sent an email to the personal respondent reporting the conversation. She describes the applicant as being rude towards her and that she felt threatened. The applicant denies that he was in any way threatening. He says that he called Professor Beauchamp to see if she would intervene on his behalf to overturn the decision to end his contracts, and that it was a racist and discriminatory decision. He also told her that when someone does something that is wrong, that person will be held to account.
34As a result of Professor Beauchamp reporting this conversation the university issued a trespass notice prohibiting the applicant from entering the campus. This was later modified to prohibit him from entering the Telfer premises, as he was teaching courses elsewhere in the university.
analysis
35If I assume, as the applicant maintains, that:
the respondents deliberately withheld orientation material for new professors from him;
the teaching assistants failed to get in touch with him despite his requests to meet;
the complaints of the students are all without foundation and the respondents failed to properly investigate whether the complaints had any basis;
the personal respondent did not raise any concerns about the quality of the applicant’s teaching when they met on September 20, 2011;
the applicant did not delete course content from the learning management system after his termination; and
the conversation the applicant had with Professor Beauchamp on October 5, 2011 took place as he describes it,
this still leaves the question of whether any of the applicant’s race, colour, ancestry, place of origin, ethnic origin or creed were a factor in the decision to terminate his contracts.
36The applicant feels passionately that he was treated unfairly by the respondents. Unfair treatment does not necessarily amount to a violation of the Code (see C.M. v. York Region District School Board, 2010 HRTO 1494 at para. 3). For there to be a Code violation there has to be direct evidence, or evidence that would allow an inference to be drawn that the unfair treatment is linked to a ground of discrimination set out in the Code. The applicant also feels passionately that the link is present. He says it is perfectly evident that discrimination took place because he is of Algerian origin and a believer in Islam and the respondents acted in a systematically unfair way towards him.
37Evidence of racial discrimination is often circumstantial and depends on the decision-maker inferring from the circumstances that discrimination took place (see Shaw v. Phipps, 2012 ONCA 155 at paras. 33-36). However, an inference has to be supported by evidence. The applicant has not produced any evidence, direct or circumstantial, that could support that any of his race, colour, ancestry, place of origin, ethnic origin or creed were a factor in the decision to terminate his contracts. His belief that this is so, however sincerely he holds it, is not evidence.
38Although the first written complaint by a student contains a racist comment, there is no evidence that this student’s views about the applicant’s ethnic origin or place of origin had any impact on the decision taken by the respondents to end his contracts.
39In the absence of any evidence of discrimination by the respondents, this Application has no reasonable prospect of success.
order
40The Application is dismissed.
Dated at Toronto, this 9th day of May, 2014.
“Signed by”
Paul Aterman
Vice-chair