Oyewumi v. University of Guelph, 2015 HRTO 1027

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Olubukola Oyewumi Applicant

-and-

University of Guelph and Alan Kerr Respondents

DECISION

Adjudicator: Geneviève Debané Date: July 31, 2015 Citation: 2015 HRTO 1027 Indexed as: Oyewumi v. University of Guelph

APPEARANCES

Olubukola Oyewumi, Applicant Self-represented

University of Guelph and Alan Kerr, Respondents Albert Formosa, Counsel

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 in educational services with respect to race, colour, place of origin and reprisal.

2The Tribunal directed that a one-day preliminary hearing would be held to address the issue of delay and/or, pursuant to s. 45.1 of the Code, whether the Application should be dismissed on the basis that it has no reasonable prospect of success. The parties participated at the preliminary hearing and filed post-hearing submissions.

3For the reasons that follow the Application is dismissed.

Background

4The applicant was enrolled in a Ph.D. program with the respondent University commencing in 2008. On September 18, 2008, the applicant’s request for tutorial services for a certain course was denied. The applicant ultimately did not receive a passing grade in this course. In the summer of 2009 he enrolled in a pre-qualifying exam and he failed it for the first time.

5The applicant alleges that in September 2009, he met with the personal respondent who allegedly told him that he did not belong in the program. He believes that he was subjected to a number of discriminatory acts including that he was denied funding and that he was assigned as a teaching assistant to a very onerous course in terms of workload. He believes that he should have been funded by the respondent University without being required to work. He also alleges that he was not assigned an advisor in the Fall of 2009. The applicant also alleges that he was denied funding to present a paper in October 2010.

6Unfortunately, the applicant was not able to obtain satisfactory grades in certain courses and failed the pre-qualifying exam for a second time. In October 2010, the department decided to recommend to the Admission and Progress Committee of the Board of Graduate Studies (the “A&P Committee”) that the applicant be required to withdraw from the program. In November 2010 the A&P Committee confirmed the department’s recommendation.

7The applicant believes that the department’s decision to recommend his withdrawal from the program was discriminatory. He is also of the view that the reason that he could not obtain a passing grade in certain courses and/or pass the pre-qualifying exam is because he was denied a tutor in September 2008.

8The applicant filed an internal appeal of the A&P Committee’s decision to the University’s Petitions Committee on January 23, 2011. This appeal does not allege any discrimination contrary to the Code.

9On March 10, 2011, the A&P Committee reversed its initial decision and permitted the applicant to be re-enrolled in the program under some conditions. One of these conditions included that if the applicant failed the pre-qualifying exam again that he would automatically be withdrawn from the program.

10Unfortunately, the applicant failed the pre-qualifying exam in June 2011 for the third time. On August 18, 2011, the A&P Committee accepted the department’s decision that the applicant be withdrawn from the program.

11The applicant filed a second appeal to the Petitions Committee, in which he does allege that the respondents discriminated against him pursuant to the Code. A hearing of the matter was held on June 20, 2012, and a decision was rendered on August 14, 2012, in which the Petitions Committee upheld the department’s decision that the applicant be withdrawn from the program.

12This Application was filed August 13, 2013, almost one year from the date of the Petition Committee’s Decision.

Delay and No Reasonable Prospect of Success

13The Code provides that in order for the Tribunal to have jurisdiction over the subject-matter of the Application that it must be filed within one year of the last incident of discrimination. The Tribunal has the mandate of adjudicating matters in a fair, just and expeditious manner. In this case the first incident of alleged discrimination occurred in September 2008 almost five years before the Application was filed. Section 34 states:

(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.

14I must first determine that date of the last incident of alleged discrimination. In order for the Application to be timely there must be an incident of discrimination that falls within one year of the date of the filing of the Application. The Tribunal does not have to accept the assertion of one party as to when the last incident of discrimination took place. The Tribunal must review the facts of each case to determine when the last incident of discrimination allegedly occurred, whether it is in fact an “incident” of discrimination and, in some circumstances, whether the applicant has no reasonable prospect of establishing that the incident is in fact discriminatory. See for example, Saxon v. Amherstburg Police Services Board, 2013 HRTO 681, and Papanicolopoulou v. University of Windsor, 2015 HRTO 754.

15In this case I find that the last incident of alleged discrimination occurred on August 18, 2011, the date on which the A&P Committee accepted the department’s recommendation that the applicant be withdrawn from the program for the second time. It is on that date that the applicant was advised that the respondents would no longer permit him to be enrolled in the educational services that he sought. The Application was filed almost two years after that date.

16Three months later the applicant filed an internal complaint to the Petitions Committee to have this decision reversed, during which he had the right to be heard by presenting evidence and making written and oral submissions. During the context of this process the applicant brought forward his allegations of discrimination. The fact, however, that the applicant had recourse to make an internal appeal does not extend the time for filing an application with the Tribunal. This has repeatedly been stated by the Tribunal. In Huo v. University of Western Ontario, 2012 HRTO 198, a case where an applicant filed an application after the completion of a university complaint process, the Tribunal commented, at paragraph 18:

With respect to the applicant’s submissions regarding the fact that he was involved the respondent’s internal appeal process, it is noteworthy that efforts to pursue one’s rights elsewhere, without more, have been found not to justify delay, see: Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241; Lutz v. Toronto (City), 2009 HRTO 1137; Kelly v. CultureLink Settlement Services, 2010 HRTO 508.

17In this case the applicant alleges that the conduct and decision of the Petitions Committee was discriminatory. He points to a number of anomalies, including that he feels that certain members were removed prior to his complaint being heard, that the A&P Committee improperly sought written submissions on a particular issue after the hearing, and that a judicial officer was overly involved in the decision-making process. Ultimately, the applicant feels that the decision is wrong because it failed to find that the respondents had discriminated against him.

18However, it is not the role of the Tribunal to review other adjudicative decisions. Any issues dealing with the Petitions Committee’s processes and ultimate decision are potentially subject to judicial review. See for example: Gauthier c. Saint-Germain, 2010 ONCA 309 at para. 30, in which the Court of Appeal discusses the availability of judicial review with respect to academic decisions. As such, I find that the issuance of the Petition Committee’s decision in August 2012 is not an incident of discrimination.

19Further, having considered this matter I find that, if I am wrong on this point, the applicant has no reasonable prospect of establishing that either the Petition Committee or its decision was discriminatory. The members involved in the Petition Committee heard the evidence presented by the parties and came to the conclusion to uphold the withdrawal of the applicant from the program. Though the applicant believes that the Petition Committee was involved in a cover-up of the discriminatory conduct of his department, these are bald allegations without any evidentiary foundation. I find that the applicant’s allegations on this point are mere speculation and conjecture.

20As such I find that the last incident of alleged discrimination occurred on August 18, 2011, and that the Application was not filed within one year of the last incident of discrimination.

Good Faith

21As such, I must next determine whether the delay incurred in filing the Application was in good faith.

22The Tribunal has extensive case law addressing this issue. An applicant must provide a reasonable explanation for the delay: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424. A reasonable explanation must substantiate that the applicant acted with all due diligence. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, and Pelletier v. Nortrax Canada, 2011 HRTO 1495.

23The Tribunal has stated that waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an application. See, for example, Abutalib v. Toronto Police Services Board, 2010 HRTO 1697. Similarly, in this case I do not find it a reasonable explanation that the applicant was waiting for another proceeding to conclude to constitute good faith.

Order

24The Application is dismissed. As such, I need not address the issues of prejudice or the applicability of s. 45.1 of the Code.

Dated at Toronto, this 31st day of July, 2015.

“Signed by”

Geneviève Debané Vice-chair