Wongene Daniel Kim v. Governing Council of the University of Toronto, 2014 HRTO 76

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wongene Daniel Kim

Applicant

-and-

Governing Council of the University of Toronto

Respondent

DECISION

Adjudicator: Mary Truemner

Date: January 17, 2014

Citation: 2014 HRTO 76

Indexed as: Kim v. Governing Council of the University of Toronto

APPEARANCES

Wongene Daniel Kim, Applicant

Self-represented

Governing Council of the University of Toronto, Respondent

Sari Springer, Counsel

Introduction

1This Application alleges discrimination with respect to services because of race, sex and sexual orientation contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant enrolled in a course for the Fall of 2012 that was offered by the respondent through its Women & Gender Studies Institute. On the first day of class, the applicant looked into the classroom and noticed that there were approximately 40 female and no male students inside. He was too uncomfortable and shy to enter the classroom because he was the only man.

3In the first week of the course, he telephoned the course professor to discuss whether the marking scheme, which included a class participation mark worth 15%, might be adjusted to allow him not to attend class given his insecurities which made him uncomfortable participating in a class where he was the only man registered for the course. She explained that the marking scheme would not be changed, and that he would need to attend class to earn marks for participation. The applicant chose not to attend any classes, and he received no marks for class participation.

4The other 85% of the course mark depended on the marks for three assignments. The applicant completed all three, but the marks he received for them were insufficient to bring his final mark for the course to a passing level and he failed the course.

5The applicant thought that he might drop the course given his projected loss of 15% of the course’s mark (participation), but he wanted to wait until seeing his mark for his first assignment. Unfortunately, he did not know when the date by which a student must drop a course to avoid academic penalty, and by the time he received his mark for the first assignment, the date had passed. If he had attended class, he would have received the mark for the first assignment before the deadline to drop the course, but he was expecting the professor to post the marks for assignments on an electronic “blackboard” hosted by the respondent. The applicant later learned that the professor had not provided marks on the blackboard, but instead she had given students their marks in person. The applicant believed that if the professor had electronically posted the mark of the first assignment, then the applicant would not have missed his opportunity to drop the course, and he would not have a failure on his record.

6By Case Assessment Direction dated November 10, 2013, the Tribunal, on its own initiative, directed that the matter be scheduled for a summary hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure. The applicant was directed to make argument and point to evidence which would link the alleged actions of the respondent with the prohibited grounds alleged in the Application. The summary hearing was heard by way of teleconference on January 10, 2014. At the commencement, the applicant withdrew his allegation of discrimination because of sexual orientation.

analysis

7The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure. The issue in a summary hearing is whether an application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the application or part of the application will succeed.

8In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8-10, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

9As the Tribunal noted in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17:

The Tribunal does not have the power to deal with general allegations of unfairness. For an application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one’s Code rights.

10The applicant provided reasons in his Application for his position that the respondent discriminated against him. He also provided written submissions, which I have reviewed, and made oral argument at the summary hearing.

The Participation Requirement

11The applicant argues that the marking scheme should have been adjusted so that he would not lose marks for not attending class, and he argues that the respondent’s refusal to adjust the marking scheme constitutes a failure to accommodate a need arising from his gender.

12Section 11 of the Code states:

(1) A right of a person under Part 1 is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) The requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) It is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Commission, the Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

13The applicant has not satisfied me that his claimed discomfort in a classroom of women requires accommodation under the Code. He admitted that his discomfort is based on his own “individual preference” as a shy person. The applicant stated that he did not want to interact with the other students because they are women, and thought that they would not be willing to interact with him because of his gender. This is merely speculation, as he never gave the class, or the women, a chance. The applicant has no evidence to establish that he has been excluded, disadvantaged or treated unequally on the basis of the grounds claimed, nor does he have any evidence that he would have been, had he attended class.

14The applicant cannot demonstrate that his preference not to participate with women only is a need arising from gender. The applicant has not established that the requirement to participate in class has an adverse impact on men, nor that the respondent needed to accommodate the applicant’s preference to absent himself from class; consequently, despite the applicant having provided much argument about the marking scheme, it is not necessary for me to assess whether the participation requirement was reasonable and bona fides, nor whether the respondent might have been able to adjust the scheme without undue hardship. The professor’s refusal to excuse the applicant from attending class does not amount to a Code violation.

15I dismiss as having no reasonable prospect of success the allegations of discrimination with respect to the professor’s refusal to adjust the marking scheme so that the applicant could absent himself from class without penalty.

Low Marks for the Assignments

16The applicant alleges that the professor gave him low marks for his assignments because of his gender; however, he did not refer to any evidence that could support an argument that the low marks were a direct result of his gender, and there is no reasonable prospect that such an allegation might succeed. Rather, it appears that the applicant’s argument is more related to reprisal in that the professor allegedly gave him low marks for his assignments because she was punishing him for not having attended class, which, he argues, flows from his gender. He argues that the evidence that the professor reprised against him for not attending class lies in the scarcity of written comments on the assignments, particularly the last assignment on which no comment appeared, and also on the fact that his assignment marks got progressively worse.

17Section 8 of the Code states:

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

18Even if the professor had unfairly marked the applicant’s assignments because he did not attend class, which I am only assuming for the purposes of the summary hearing, such alleged unfairness would not amount to reprisal as defined by section 8 or discrimination because of sex. It cannot be reprisal under section 8 because at no time prior to filing the Application did the applicant raise what could be construed as a Code issue with the professor or the respondent; rather, his request for accommodation, he agreed, was a preference, not a need arising from his gender.

19I therefore dismiss the allegation that the professor gave the applicant low marks for his assignments because of sex and the allegation that the low marks were reprisal as defined by the Code.

The Non-Posting of Marks on the Electronic Blackboard

20The applicant also argues that the professor’s decision not to post the assignment marks for the students on the blackboard was reprisal for not attending class which, he argues, was because of his gender. He also argues that the requirement to see the professor to discover an assignment mark had an adverse impact on him because he was embarrassed about not having attended the professor’s classes, and he did not feel comfortable seeing her.

21There is no reasonable prospect of success for the allegation that not electronically posting the applicant’s marks was reprisal, even if the alleged facts are true, because the applicant never raised a Code concern with the respondent or the professor prior to filing the Application, simply a preference.

22Similarly, even if it were true that the respondent had a requirement that the students collect their marks in class, and the applicant’s discomfort in attending class prevented him from getting his marks, this would not amount to a Code violation because the applicant has not established that the requirement to attend class has an adverse impact on men, nor that the respondent needed to accommodate the applicant under the Code given that it was the applicant’s preference to absent himself.

23The applicant argues that the consequences for him of not accessing his marks electronically led to him not being able to drop the course without academic penalty, but this is an effect of an allegedly discriminatory event, not discrimination in itself. At any rate, I have found the allegation of electronically inaccessible marks not to be a violation of the Code.

The Applicant’s Attempts to Negotiate Higher Marks

24The applicant went to the professor on January 10, 2013, during her office hours, requesting that she raise his marks, but the professor was not receptive to his arguments, and he felt that she paid more attention to another student in the hallway who was waiting to speak with the professor. That other student was female and not visibly Asian. The applicant is male and Asian. The applicant argues that this one instance of alleged differential treatment proves that the professor discriminated against him because of his gender and race. I do not agree. I am not satisfied that this one alleged incident of alleged differential treatment would be sufficient, even if true, to establish that the refusal to raise the applicant’s marks was discriminatory on the basis of race and sex. At any rate, without more evidence than the mere difference in race and sex between the applicant and the other student, I see no reasonable prospect for the applicant to demonstrate that race or sex were factors in the professor’s alleged differential treatment, nor in her refusal to change his marks. (See Gan v. College of Physicians and Surgeons, 2013 HRTO 1888).

25The applicant argues that the professor sent him to the wrong person to review her refusal, and the fact that the person to whom she referred is African-Canadian, in an Institute that he alleges has no other racialized professors, is also proof that the professor was discriminating against him because of his race. Even if the applicant’s assertion about the racial make-up of the Institute were true, I do not agree that any weight may be attached to the mere fact that the person to whom the professor mistakenly sent the applicant was racialized. The applicant provided no explanation for why the race of the other professor demonstrated that the professor sending him to her was racist, and I can think of none.

26The applicant alleges that the people at the Institute with whom he spoke in order to raise his marks did not try to help him, but without evidence to show that one of the reasons that they did not help him was race or sex, I see no reasonable prospect for this allegation to succeed.

Conclusion

27In order to establish that the Application should not be dismissed because there is no reasonable prospect that it will be successful, the applicant must show that there is evidence to support his belief that there is a connection between the respondent’s conduct and the prohibited grounds he has alleged. (See Rana v. Loblaws Companies Ltd., 2012 HRTO 533). I did not see in the applicant’s materials, or hear in his oral submissions, that there was any evidence which would be reasonably available to the applicant to prove this connection.

28Accordingly, there is no reasonable prospect that the Application will succeed and it is dismissed.