HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Patricia Naughton
Applicant
-and-
University of Western Ontario
Respondent
INTERIM DECISION
Adjudicator: Geneviève Debané Date: January 21, 2014 Citation: 2014 HRTO 89 Indexed as: Naughton v. University of Western Ontario
APPEARANCES
Patricia Naughton, Applicant Yola Ventresca, Counsel
University of Western Ontario, Respondent Lisa Kwasek, Counsel
Introduction
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to the provision of educational services.
2In the Response the respondent requested that the Application should be dismissed pursuant to section 45.1 of the Code because another proceeding has appropriately dealt with the substance of the Application (the "Request to dismiss").
3A preliminary hearing by teleconference was held. Both parties participated during the conference call and filed additional written submissions and materials. In this regard I asked the parties to specifically address the Vice-Provost's statutory authority to decide the applicant's human rights issues and to provide me with any jurisprudence which has addressed the issue.
4For the reasons that follow the respondent's Request to dismiss pursuant to section 45.1 is denied.
Background
5The applicant was enrolled with the respondent University in the Masters of Library and Information Sciences program. The applicant asserts that the respondent failed to accommodate her disabilities and that she was eventually withdrawn from the program.
6The University has established a policy entitled Graduate Student Academic Appeals which grants graduate students the opportunity to appeal academic related decisions.
7The applicant filed an appeal to the University's Appeal Committee which ultimately recommended that her appeal should be dismissed for a number of reasons, including that the applicant had been granted appropriate accommodations. The Dean accepted the recommendation of the Appeals Committee and dismissed the applicant's appeal.
8The applicant appealed this decision to the Associate Vice-Provost. It appears that the Vice-Provost met with a number of individuals involved, including the applicant and that he conducted an investigation into the complaint. The applicant wrote a detailed letter outlining the reasons for her appeal. The Vice-Provost concluded that there had been no discrimination, but nonetheless decided to permit the reinstatement of the applicant to the program with certain conditions.
9Though the applicant could have initiated an appeal to the Senate Appeal Review Board ("Board") she chose not to avail herself of this right. If the Board accepted jurisdiction of the appeal then the policy provides that a student is entitled to an oral hearing including the presentation of evidence and the calling and cross-examination of the witnesses.
10The respondent takes the position that the appeal to the Vice-Provost is a "proceeding" which "appropriately dealt with the substance of the Application" pursuant to section 45.1 and that the Tribunal ought to exercise its discretion to dismiss the Application. Further, the respondent takes the position that the applicant should have filed an appeal to the Board if she was not satisfied with the decision of the Vice-Provost.
11Though the applicant concedes that the appeal before the Vice-Provost was a "proceeding" she takes the position that it did not "appropriately deal with the substance of the Application."
Section 45.1
12The purpose of s. 45.1 of the Code is to avoid the duplication of proceedings and the re-litigation of issues that have been appropriately dealt with elsewhere. Section 45.1 of the Code provides as follows:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
13Section 45.1 is generally considered in two parts: (1) was there was another "proceeding" and (2) if so, did it "appropriately deal with" the substance of the application. As the applicant has conceded that the appeal before the Vice-Provost was a "proceeding" I will not address this issue, though I have some concerns about the correctness of this concession.
14The Tribunal's approach to the exercise of its discretion under the section was clarified and confirmed by the Supreme Court of Canada in Figliola v. British Columbia (Workers Compensation Board) ("Figliola"), 2011 SCC 52. In Clayborn v. Toronto Police Service Board, 2013 HRTO 1298 the Tribunal summarized the test in Figliola as follows at para. 72:
The majority in Figliola articulated a three-part test in order to determine whether the substance of an application before a human rights tribunal has already been "appropriately dealt with" in another proceeding. The three parts to this test were articulated as being: (1) whether there was concurrent jurisdiction to decide human rights issues; (2) whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and (3) whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it, regardless of how closely the previous process procedurally mirrored the one the Tribunal prefers or uses itself: see Figliola at para. 37.
15Having considered the matter, I find that Figliola dealt with the discretion of a human rights tribunal to dismiss an application if another administrative body or tribunal had the concurrent jurisdiction to interpret and apply human rights legislation. I am not aware of any decisions in which this Tribunal has exercised its discretion to dismiss an Application pursuant to section 45.1 of the Code, in situations in which the other "body" was not vested with this concurrent jurisdiction through statute.
16The respondent submits that the University of Western Ontario Act delegates to the Senate the power to create the policy entitled the Graduate Student Academic Appeals which in turn grants the Vice-Provost with the mandate to address graduate student appeals. The respondent also relies on the Tribunal's decision in Rao v. McMaster University ("Roa"), 2010 HRTO 1051. In Rao the Tribunal determined that a two day hearing before a Hearing Panel under McMaster University's Anti-Discrimination Policy had appropriately dealt with the substance of the Application.
17I am not satisfied that the reasoning in Rao applies in this case. Roa dealt with a full adjudicative hearing before a panel. In this case, the applicant did not avail herself of the opportunity to appeal the Vice-provost decision to the Board. Therefore, there was no decision made by a hearing panel.
18I find that the Vice-Provost was not acting pursuant to any statutory authority when he was dealing with the applicant's appeal. I do not accept that the respondent's Graduate Student Academic Appeals' policy confers on the Vice-Provost any statutory authority which affords him with concurrent jurisdiction with this Tribunal to interpret and apply the Code. As such, the concerns addressed in Figliola with respect to the finality of litigation and restraining the multiplicity of proceedings simply does not arise in this case.
19Therefore, I decline to exercise my discretion to dismiss the Application pursuant to section 45.1 of the Code.
20This matter will be set for three days of hearing in London.
21I am not seized.
Dated at Toronto, this 21st day of January, 2014.
"Signed by"
Geneviève Debané
Vice-chair